I was in King County District Court (Seattle) the other morning representing a client on a DUI charge and while awaiting our case presentation witnessed another attorney cross-examining a Trooper. This particular trooper had been arrested for a DUI in 2009 in Pullman, WA. The issue was the character and reliability of the witness. The State (prosecutor) vehemently objected to that line of questioning as irrelevant! Hmm, let's think about that for a second, your main witness is a Washington State Trooper responsible for arresting persons for DUI, he had been arrested himself for DUI and had been, let's say less than truthful with the officer during his DUI arrest, then he arrested this attorney's client for DUI and the Trooper's character wasn't at issue?
Let's look at the background regarding this Trooper's DUI arrest. He was stopped in Pullman after he had been admittedly drinking. Ultimately he submitted to a breath test at the station which produced results of .11 on the BAC Datamaster (Washington's Breath Test machine). Problem for him is he told the arresting officer he had only consumed about 24 ounces of beer 8 hours earlier. Okay, let's look at this logically for a second, he had consumed 24 ounces of beer, supposedly, 8 hours earlier. Even using the most simple of alcohol eliminating formulas, after 8 hours, his breath test should have been negligible, if not .00. So, did he lie? Would that evidence be relevant to the trier of fact (judge in this particular hearing)? He presumably was going to attest to what the defendant did, and most importantly said, during his investigation of the DUI arrest. He was going to tell the court he observed bloodshot watery eyes, speech, odor of alcohol, what the defendant told him in response to questioning, etc.
That last piece of information is the most troublesome. Having a trooper testify what a defendant said to him during a DUI arrest is integral to probable cause in most cases. If the individual tells the trooper what they consumed, where they had been going, etc. it assists the trooper in making a decision to arrest. Now think about the context in which this Trooper was asked the same types of questions and his response. Is it likely the officer who arrested this Trooper for DUI did not believe him? Given that, is this Trooper's testimony remotely valuable? Isn't he just going to say what he needs to in order to convince the judge to uphold the DUI arrest.
The government should be more interested in a fair hearing with a witness who is not tarnished rather than steadfastly defending a person who has been arrested for DUI. who then testifies regarding a DUI defendant's actions and truthfulness under oath. I think attacking the credibility of the Trooper in this instance is fair game, he should expect to answer for his alleged untruthfulness, especially in the context of a DUI arrest, when he is called to testify. I believe the government brings this witness at its peril.
Just a thought: Maybe this trooper should be relegated to calling for someone else to process a potential DUI suspect to avoid any impropriety. I would feel much more comfortable as a prosecutor attempting to present evidence of a DUI via a witness who is believable.
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About the author:
Nathan Webb, is a seasoned Seattle DUI Lawyer. His practice emphasizes DUI defense. He has been repeatedly recognized as one of Seattle's Best Attorneys! He was recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and Rated Superb for DUI Defense (10.0 out of 10.0) by Avvo.com.
