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The Police Officer Lied in my OUI Case - How Can I Win?

Clients frequently call me up upset after reading the police report account of their arrest, very upset about what they've read.

• 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? 

Keep in mind that, yes, the police report will often sound bad. It is the officers justifcation for arresting you in the first place.

Now, first of all, if we take the case to trial, nobody is going to 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 at trial for the officer to refer to in his testimony, to refresh his recollection of the events that happened the night of your arrest.

What matters is the evidence that they are going to be able to use against you at trial.  So, the question is: How do we deal with the negative suggestions documented in the police report that may come out of the officer's testimony while he is on the stand?

What the Massachusetts police officers generally do when writing their police report is: write down everything that they think is bad, or 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 procudure, and they often do it without much thought.

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 things that aren’t 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 reports say that you had blood shot and glassy eyes, and that you had slurred speech. It is my job as your attorney to point out reasonable and pluasible explainations, that a jury or judge will believe are a realistic possibility.

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, or maybe you have contacts that irritated them, or maybe 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, and a host of other things that will suggest that you could not have been as impaired as the officer is implying?

3. Keep out the Bad Evidence

There are important rules about what evidence is admissible and what evidence is not admissible, and if thing said in the police report cannot be used against you at trial, than it just does not matter. That's why the police report itself is not evidence, it would be prejudicial.

For example, information in the police report that is excluded includes:

1. If you refused the breath test. Massachusetts law prohibits mention of breath test refusals during your case.
2. 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"
3. Any preliminary/portable breath test (PBT) that isn't scientifically accepted by the courts. Also not allowed in Masschusetts courts.
4. Sometimes, the fact the you failed the breath test, if we are able to keep the breath test result number out.
5. Results of the Horizontal Gaze Nystagmus (HGN) field sobriety test. It is not scientifically valid as determined by the Massachusetts Supreme Judicial Court.
6. Some statements where the client wasn't read their rights.
7. Statements made by backup officers or witnessness not present in court.
8. and many other possible circumstances

When we fight cases, we beat them at least 2/3s of the time. If the police report were all the information anyone ever had, then every defendant would be found guilty.

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 usually win our cases anyway.

Call me now for a free consultation on your Massachusetts OUI case, in any MA district court.

Attorney Russell Matson
Massachusetts Drunk Driving Defense Lawyer
(781)380-7730 - 24 hours a day

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