After being arrested for a DUI they don’t think was fair, clients frequently call me up upset after reading the police report, the account of their arrest from the police officer’s perspective.
- The police report is a bunch of lies!
- It didn’t happen the way he said it did, the police officer made that up!
- But since the case is my word against his, I have no chance, right?
The police report will often sound bad. Remember, it describes the officer’s justification for arresting you in the first place.
First of all, if we take the case to trial, nobody will ever see the police report. The judge is not going to see the police report, the jury is not going to see the police report. The report is only used for reference at trial by the officer. He can use it in his testimony, to refresh his recollection of the events that happened the night of your arrest, as he supposedly documented them.
What actually matters is the evidence that they are going to be able to use against you at trial, which is largely what the officer will say when he is on the stand as a witness.
So, the question is: How do we deal with the negative elements documented in the police report that the officer’s may testify to from the witness stand?
When making a drunk driving arrest, police officers in Massachusetts (and elsewhere) generally write down everything that they think is bad that may have suggested you were drunk. They will include everything that they can put a bad spin on, and they will generally leave out anything that is good or helpful to your defense. This is standard procedure, and they often do it without much thought. A lot of the facts are completely standard in virtually every DUI arrest.
But there are a number of ways to combat this and turn it around to your advantage.
1. Give Alternate Explanations.
In every case, there are going to be some facts that don’t look so good and it is my job to deal with them. Obviously, the police officer has reasons he decided to arrest you, so there will certainly be some negative-sounding information documented in his report.
Most every DUI arrest report say that you had bloodshot and glassy eyes and that you had slurred speech. They look for these facts and write them in without thinking about it very much. It is my job as your attorney to point out reasonable and plausible explanations, that a jury or judge will believe are a realistic possibility.
But it is my job as your attorney to point out reasonable and plausible explanations for these things, that a jury or judge will believe are a realistic possibility, and could be true without you actually being drunk.
At trial, I will get to cross-examine the officer on whatever he testifies to. I will point out that maybe your eyes are blood shot and glassy because maybe you have allergies. Maybe you have contacts that irritated your eyes. Or maybe it was just because it was 2 AM and you were tired.
2. Point Out All the Things You Did Right
Usually the police report will focus on all of the things that the officer says you didn’t do perfectly. Did the officer say anything about how you pulled over? How you produced your license? How you produced your registration?
If the officer says nothing about those things that means you did them correctly, and when I question him he will usually admit you did those things correctly as well as other things.
We are painting a picture that creates reasonable doubt.
If you were drunk, why did you immediately and carefully pulled the car over, produced you license and registration without fumbling? There are a variety of other things that will suggest that you could not have been as impaired as the officer is implying.
Anything at all they didn’t write in the report, we can ask about on the stand.
For example, “Officer, my client had no problems at all hopping out of the car, did he? Because if he had, I’m sure you would have made a note of it in your detailed police report, correct?”
3. Keep out the Bad Evidence
There are important rules about what evidence is admissible and what evidence is not admissible. If things said in the police report cannot be used against you at trial, then those things just don’t not matter. That’s why the police report itself is not evidence because it would be prejudicial.
For example, information in the police report that is excluded includes:
- If you refused the breath test. Massachusetts law prohibits mention of breath test refusals during your case.
- If you admitted that you had to refuse because you thought you would fail if you took the breath test, such as if you say “I’m too drunk to pass the test”
- Any preliminary/portable breath test (PBT) that isn’t scientifically accepted by the courts. Some departments still use these roadside portable breathalyzers, but they not scientifically valid, and not allowed in Massachusetts courts.
- Sometimes, the fact the you failed the breath test, can’t be used, if we are able to keep the breath test result number out.
- Results of the Horizontal Gaze Nystagmus (HGN) field sobriety test. It is also known as the “eye tracking test”. It is not scientifically valid as determined by the Massachusetts Supreme Judicial Court.
- Some statements where the client wasn’t read their rights.
- Statements made by backup officers or witnesses not present in court.
- and many other possible circumstances
When we fight cases we win them at least 2/3s of the time.
Remember, if what is in the police report was all the information that was ever considered in court, then every defendant would be found guilty. In fact, what may seem important or incredibly damaging when reading the report often turns out to be not a big deal in court, in the context of our defense.
The police report is a tool designed to help the police get convictions, so it usually looks bad on its own. Yet we still usually win our cases anyway.
Call me now for a free consultation on your Massachusetts OUI case, in any district court in the state.
