Reassurance to a rookie.
One of my former rookie trainees called me last night, and we had a nice chat. John* has moved on to another department, and has been making a name for himself.
John described a situation that he had the other day, which frustrated him. He had stopped a girl for a significant traffic violation, and had smelled the odor of alcohol. It being a weekend night, he had her step out, and administered the Standardized Field Sobriety Tests. As he finished them, another officer with a PBT drove up. My friend hadn't been able to see much in the way of Horizontal Gaze Nystagmus, which really is the gold standard of tests. She did somewhat poorly on the Walk And Turn, and One Leg Stand. But it bothered John that he hadn't seen the three clues for each eye. After some thought on the clues that he had, he let her call for a ride
While they waited, he asked her to blow into the PBT (Portable Breath Test device, not admissible in court because of inability to guarantee calibration in the field.). She blew a .21 BAC into a device that he had found to be very accurate, when the results were checked against credible instruments. John was shaken. This "girl" as he kept referring to her, apparently was a professional alcoholic, with almost 3 times the legal limit for blood alcohol content. He had barely been able to show that she was drunk, and had decided that the evidence wasn't good enough to go to court with.
After she was driven away by her ride, John told the other officer what the reading was. The other guy told him that he would have taken her to jail, John said. John felt like maybe he had done the wrong thing.
"Stop right there!" I interrupted. "Your buddy out there-- did he offer to take that woman to jail? Did he offer to do the report? No? Well it's funny what other cops may say they 'would've done,' when they don't have to carry the paperwork. He doesn't know what he would have done if he was in your skin," I said.
"When you arrest a person, you take them to jail, and then you write a charging document in which you list the reasons that you believe that she broke the law. You --not anyone else-- are the man who then signs his name below an oath that you make before God [John is deeply religious], swearing that everything you have said above is the Truth, as you believe it in your heart to be," I continued.
"If you had doubts, then you didn't fully, completely believe it. That's the time to cut. her. loose. Sure, after you've gotten more experience under your belt, you probably would have zero doubt in the same situation in the future. But this time, you had doubt, and you did the right thing. You got her off the road, and you didn't file a charge that you weren't SURE of. John, this is not a bad thing. We'll catch her some other time, trust me."
We went on to talk about other things. He's a good man, and I know he'll make a good officer. He already is one, actually; he just needed to hear it.
__________________________________
* Not his real name.
posted by Matt G @ 12:11 PM
11 Comments:
You'll be shocked to learn that HGN is not admissible in MA for DWI cases. Seems that some judges decided that their liberal beliefs trump the science accepted in 49 other states.
As for John's driver, she's a pro. If she can stand, drive, and keep her eyes from twitching with a BAL of .21, she's likely able to fool many officers. Which probably includes the other helpful officer.
Not to mention that people who drink heavily often (also called alcoholics) can sometimes surprise you with their ability to hide what should be obvious. They could be three sheets to the wind and still not show it, but a PBT shows them as having more than twice the limit.
When I was a bartender, people like that always scared the hell out of me, because if I serve someone who was already intoxicated, I get all the responsibility for what happens next, whereas if I tell them hit the road because they are too intoxicated to serve, I'm legally untouchable.
I totally agree with your approach, and I agree that she'll get caught again. It'll probably be your friend that does it, too. Kharma is funny that way. I just hope for his sake (and hers) that nothing bad happens in the meantime so that he doesn't feel "responsible" for not taking her in.
Sounds as if you did a good job on that lad when you were his FTO. Now you've reinforced his already nicely developing inclination to Do The Right Thing.
Good on 'im, and good on you. You can be proud of him. I'm proud of you.
You're right, TOTWTYTR-- I am shocked to learn that! I suppose that the argument was that there wasn't a way to review what the officer saw, unless he had a camera on his chest or head (they now exist, BTW). NHTSA standardized the tests a long while ago, and HGN is hands-down the best predictor of an intoxicated person.
A drunk cannot control the involuntary twitching of the eyes (nystagmus), which is why it's such a good indicator. My friend just likely didn't have the light source and the stimulus high enough, or she had enough eye makeup and squint to make it hard to see. More likely, though, he just didn't have the experience to see it. But kudos to him for not "making" himself see it. You get two passes. If you don't see it, you don't see it. :)
t too care of a 26-year-old Afghanistan war vet who came to the ED seeking substance abuse rehab.
Obviously, being the ED, we didn't do field sobriety tests on him, but he stated he had been drinking pretty much every waking hour since he got back from Afghanistan, so we ran a BAC on him as part of a routine pre-admission tox screen.
Dude had a BAC of 340, and demonstrated not one outward sign of intoxication. We were so skeptical, we had them run the test twice.
Sometimes a chronic alcoholic can fool you, and this guy certainly did me.
And at least he got her off the road for the night if nothing else.
As a non-LEO, I'm happy to hear that you're teaching your rookies to err on the side of caution in favor of the individual. Too many officers would rather get the arrest than give someone a chance.
Also, I've known too many people who drank habitually to believe in the one-size-fits-all approach to impaired driving. There are some people who shouldn't touch their keys after one drink and others who can drink quite a bit and still be safe. That high of a BAC probably was dangerous, I'll admit.
As William Blackstone said: "better that ten guilty persons escape than that one innocent suffer"
Phillip, I'll challenge that; I'm sure Blackstone said it, but I question whether it can be viewed as a black-and-white event.
"John" apparently saw some degree of impairment at what turned out later to be a .21 BAC, but it appears the impairment he saw was not sufficient to justify a DUI or DWI arrest within the confines of the statutes. That does not mean, however, that the driver in this instance was "innocent."
Blackstone, unfortunately, isn't with us to discuss the ramifications of this case of "innocent" versus the possibility of said impairment contributing to an unfortunate event. Should that - apparently minor - level of impairment lead to injury of herself or another, I wouldn't characterize it as "innocent." An arrest for DUI/DWI is not a casual thing, at least from the driver's perspective, and it's understandable - and commendable - that "John" chose to not subject the driver to that trauma without sufficient justification, both under the law and in his own mind.
Which leads to a question: Matt, is there a mechanism to direct such a high-functioning alcohol consumer to some sort of treatment program without an arrest? And, if so, is there evidence that said program produces beneficial results?
@ Larry: There is not a way to force treatment without arrest. But given the nature of the crime (a drunk, operating a motor vehicle, in public), a few hours in a safe place to sober up is absolutely indicated. We have to start with a sober (probably hung over) person facing the system. Typically this is the judge at arraignment.
After arraignment (and the first night or so in jail), there is the possibility of Pre-Trial Diversion, which shows at least a high of a success rate of reducing recidivism as traditional jail. In some cases, where the treatment is mandatory, the success rate (defined by likelihood of recidivism in the next 2 or 3 years) is far greater. The problem here is that the treatment programs for misdemeanors are open-door programs. They can walk out any time they want. The only locked-door programs that come into play occur after a felony. (Safe P is one, especially for substance abuse.)
John felt that she was drunk (he wouldn't have had her call a ride if he didn't), but couldn't articulate it. He didn't have enough experience under his belt to recognize some of the clues in an articulable fashion. And, sometimes, we blink when the lightning-quick clue reveals itself. The thing is, a one-year cop with 7 DWIs under his belt isn't going to get very far putting into a report "Based on my extensive training and experience..." when he tries to explain why the court should find his arrestee as intoxicated. Hell, I really can't get very far with that, and I've performed hundreds (if not thousands) of evaluations for intoxication, and have made many scores of arrests for the offense. :)
Eventually, we have to rely on the standardized tests to show the standardized clues to put onto a dry piece of paper. My friend knew that the clues that he could honestly list just weren't sufficient to build a good credible case, so he let her go (safely) without putting her before The System. It wasn't HER (time, trouble, criminal record) he was saving; it was HIM (credibility, self-respect).
@Larry: I didn't state that that driver was innocent. I expressed the opinion that if the officer had a doubt, it was better to err on the side of individual liberty and not try to go for a questionable arrest.
I fully support taking a truly intoxicated driver off the road, whether through an arrest, or in this case allowing them to make arrangements to stop driving because the officer wasn't certain they were impaired. Unfortunately, in too many instances there have been people who have had DUI arrests and even convictions on no more than the officer "feeling" like the person was under the influence. The portable breathalyzer that is frequently used as a proof of guilt is actually a quite fallible machine, and officers are human and are subject to the same prejudices as everyone else. This means that there have been innocent people charged with the crime of DUI, which where I live will net you an attorney's bill of at least $3,000 to defend against. Moreover, the presumption of innocence that we are supposed to have seems to be lacking in regards to DUI cases, and the mere accusal is presumption of guilt in too many courts. "Who am I going to believe" the judge thinks, "a police officer or some drunk?"
Now, before you start accusing me of either being a habitual DUI offender or trying to defend someone else, I don't drink when I'm going to be driving and think that we're too lenient on proven drunk drivers. However, I've seen enough cases where people were wrongly convicted and know that the system is actually stacked against anyone who is accused of the crime. It's similar to child molestation, guilty until proven innocent.
HGN isn't admissible in New Mexico, either. I've heard the opinion of some officers that the flashlight cams or chest cams might eventually get it admitted, as they might show the nystagmus, but I doubt it will happen any time soon.
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