Is a Trooper's credibility relevant in a DUI hearing/trial?

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.

Dirty cop fired for falsified DUI arrests...

Anyone who's ever been pulled over by a cop for something they didn't do will find reason for both fury and comfort in the story of Utah Highway Patrol Cpl. Lisa Steed. Steed, a cop celebrated for her diligence, has now been fired amid allegations that she falsified dozens — perhaps hundreds — of DUI arrests. Steed routinely pulled over drivers she claimed were driving drunk or on drugs and arrested them, even if they were found to have no drugs or alcohol in their system, a lawsuit contends. "Her actions are so blatant," a plaintiff's lawyer says, "it is probable that she acted like this in an untold number of cases."

A terrible example of abuse of due process and constitutional rights to further her own agenda.  She will soon find out what "justice" really means.

By Nathan Webb

WSP trooper says he is never wrong! Huh, interesting...

Washington State Patrol Trooper Tony Brock puts a woman through field sobriety tests in Seattle's Ballard neighborhood. She was later arrested for DUI. (Photo: KIRO Radio/Brandi Kruse)

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listenListen: DUI limit really more of a guideline for state troopers

While roadways across Washington state are spotted with signs that remind drivers of the "legal limit," and warn "over the limit, under arrest," driving under the influence can often be a crime of opinion for troopers who believe you are too impaired to be behind the wheel. 97.3 KIRO-FM's Brandi Kruse reports.

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On a Friday night in the Ballard neighborhood of Seattle, Trooper Tony Brock pulls a woman over for driving without headlights. As he approaches the vehicle, he detects a strong smell of alcohol.

The woman fumbles for her driver's license and struggles to unbuckle her seatbelt when Trooper Brock asks her to exit the truck.

"How much have you had to drink tonight?"

"Six beers," says the woman.

"Do you feel like you're OK to drive?"

"I do," she responds, telling him her last drink was 45 minutes ago.

Trooper Brock proceeds to put the woman through a series of field sobriety tests.

He moves his pointer finger side-to-side as she attempts to follow it with her eyes. He watches as she takes nine steps, carefully putting one foot in front of the other while counting the steps out loud. He asks her to recite her alphabet from the letter "b" to the letter "n," then asks her to count from 58 to 72.

Without blowing into a breathalyzer to determine her blood alcohol level, the woman is arrested for driving under the influence.

"Even if she was not over a .08, it's obvious she's affected by the alcohol she was drinking," said Trooper Brock. "Even if I took her back to the office and she blew a .07, she would still be being booked into the King County Jail for DUI."

While roadways across Washington state are spotted with signs that remind drivers of the "legal limit," and warn "over the limit, under arrest," driving under the influence can often be a crime of opinion for troopers who believe you are too impaired to be behind the wheel.

"I [couldn't] care less about what they blow; if they're below the legal limit, at the legal limit or five times the legal limit," said Trooper Brock, who is member of the Washington State Patrol's Target Zero Team. Their goal is to reduce deaths on the roadway.

"I don't worry about what's going to happen six months or a year down the road in court," he said. "I know when I go home every single shift that if I took someone off the road, I'm 100 percent positive they were not supposed to be driving a car."

Under state law, someone can be arrested for DUI if a trooper or officer determines they were "affected to an appreciable degree" by alcohol or drugs.

"We do get clients that come into this office that are dumfounded, for lack of a better term, as to why they're even sitting in our office if their blood alcohol level was below the legal limit," said William Kirk, a DUI defense attorney with Cowan Kirk Gaston.

He said the government has contributed to confusion with signs and slogans reinforcing the "legal limit."

In cases where a defendant's BAC was under the legal limit, the prosecution must rely on the testimony of the trooper or officer who made the arrest.

"The evidence that a person was impaired to an 'appreciable degree' will be based upon the trooper's opinion, and therefore it becomes a crime of opinion and the weight that a jury attaches to that opinion is critical to whether or not a conviction is obtained," said Kirk, who has never had a client convicted of DUI with a BAC under .08.

"I personally have never had that happen," he said. "But I have heard of it happening and I have heard of some very talented DUI lawyers having it happen to them, so it is possible."

While troopers like Tony Brock have the responsibly of proving such cases, he said he understands that not everyone he arrests will ultimately be convicted of DUI. Many plead to lesser crimes such as reckless driving or reckless endangerment to avoid trial.

Brandi Kruse, KIRO Radio Reporter

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