By Michael G. Romano, November 12, 3007

Back when I was just a law clerk, I remember hearing that more and more law enforcement agencies would be making use of video and audio equipment. In the case of DUII investigations, use of audio and video documentation was supposed to become standard practice not only to help strengthen cases, but to protect officers from false allegations of improper conduct.

Well, here we are in late 2007 and the vast majority of law enforcement patrol cars in Deschutes County (including the patrol vehicles for the Deschutes County Sheriff's Office, Oregon State Police, Bend Police Department, Redmond Police Department, and Sunriver Police Department) still do not have audio and video equipment installed in their vehicles. Often times, the equipment installed in the vehicles is not working or the officer fails to turn it on for all investigations.

When asked, law enforcement agencies will claim that the reason they don't have a camera in every squad car is due to a lack of funding. This is not true. Audio and video equipment has never been less expensive. Case in point: I just purchased a digital audio recorder the other day for $29.99 that stores over eight hours of CD-quality audio (the recording time can be tripled by going to lo-fi). Video equipment is no doubt more expensive, but for a few hundred dollars there are cameras available which will store up to 32 hours of video on an internal hard disk. One has to ask, if an officer is adamant that a particular driver was slurring his or her words, why wouldn't an officer document such evidence with a simple audio recording? If an officer is adamant that a particular person was having difficulty with the Field Sobriety Tests, why not catch a few minutes of it on video?

The real reason that law enforcement agencies do not want to use audio and video equipment is that they know that their officers make mistakes and they don't want the mistakes documented. Officers want to have the ability to continue to draft their reports in a way that make their investigations look air-tight and professional without question. The officer is typically the only party to an investigation that writes a report. The officer can literally put anything he or she wants down as the "truth." If anyone dares the question the officer, her or she invariably falls back on their report and says "It's in my report" as if the officer's report is gospel.

It's very suspicious that, in modern times when every teenager seems to have a cell phone that can record nonsense video clips for posting on YouTube, law enforcement officers expect the public to believe that they are literally unable to make use of audio and video documentation of their serious criminal investigations.

By Michael G. Romano, December 26, 2007

Police officers often seem like they have better memories than the average person. They can remember colors of suspect vehicles, names and telephone numbers of witnesses, and multiple fact patterns relating to criminal investigations. Do you want to know the secret about how they supposedly keep their memories so sharp? Do you really want to know? They write things down. That is it. Most cops don't have any better memory than you or I. They simply refer to their reports whenever they need to remember something. In fact, if you ever want to have a good laugh, pick up any trial or omnibus hearing transcript with a testifying officer and you'll see numerous references to the line "May I refer to my report?" or "I'm going to need to refer to my report."

Police officers are allowed, in court, to refer to their notes and police reports to refresh their memory. Most officers don't actually do this but instead simply read from their reports. So why is this a problem? Because, as a defense attorney, I not only want to know what the officer wrote in his type-written report, but I want to know how he was able to recall the events he wrote in his type-written report.

Most officers take very few notes in the field (i.e. by the roadside when they are investigating suspected DUII drivers). Most officers wait to write their notes until the end of their shift or at least until the complete end of the investigation. There is a fundamental problem with this because no one has a memory accurate enough to recall every detail of what took place during a given conversation or Field Sobriety Test given a few hours or days before. For example, the Walk and Turn test has nine steps down and nine steps back. For each step, there are a number of variables. Did the driver step on-line? Did the driver touch heel to toe? Was there a gap between the heel and toe, and if so, how much of a gap? Did the driver raise his right arm? Did the driver raise his left arm? If the driver raised his/her arms, was the arm raised greater than six inches? Did the driver stop or hesitate in walking? Did the driver keep his/her head down to look at his/her feet? Did the driver count out-loud? Did the driver count correctly? Did the driver appear to lose his/her balance? For each step taken during the Walk and Turn test, there are at least ten to twelve variables for each step. That's 180 to 216 specific observations that need to be remembered and written down. The trouble is that officers don't write them down immediately, but they instead write down only a handful of things that would support their decision to arrest. An officer will testify "The suspect raised his arms for balance." Question of the officer: "Which arm did my client supposedly raise for balance?" The officer will reply: "Let me refer to my report. [Pause] I don't recall." Question of the officer: "Well, did my client raise his arms more than six inches?" The officer will reply: "Let me refer to my report. [Pause] I don't recall."

Another common problem with modern police reports is that they are cut-and-pasted using word processors, or they are fill-in-the-blank multiple-choice reports. Most officers know all too well that they have to include the following observations in every DUII report: (1) the driver smelled of alcohol, (2) the driver had bloodshot and glassy eyes, and (3) driver couldn't easily present his/her registration or licensing information as quickly as the officer would have liked. To take care of this practical requirement, most officers will have a paragraph at the very beginning of their report where they summarily detail seeing all of these things in the first minute of contacting the driver. I have actually seen cut-and-pasted reports personally which detail these observations. The dead giveaway was that the reports contained direct references to people from other investigations who were no way involved in the investigation the report was supposed to be detailing.

The fill-in-the-blank multiple-choice reports are commonly used to give the appearance that the officer knows what he or she is doing. For example, a fill-in-the-blank multiple-choice report will have boxes for the officer to check indicating that he made a number of observations or asked a series of questions in order to thoroughly document his investigation. These forms are almost always filled out after the entire investigation is concluded. To be clear, these forms don't have irrelevant information (i.e. what's the driver's favorite ice cream). Every question is critical in a properly detailed DUII investigation and there may be 50-75 observations or questions. I'm willing to bet that any competent officer can recall a large number of them. But is he able to recall every single one two hours after the investigation? Not a chance. So, imagine the scenario with an officer sitting and filling out a mandatory form two hours after he was supposed to look and make a particular observation or recall whether he asked a specific question and received a detailed answer. With a fraction of a second and the stroke of pen, the officer can simply check a box that says, for example, he thoroughly asked the driver about his/her medical history-- regardless of whether the officer actually asked these important questions.

Don't be intimidated by cops who claim their memory is better than it really is. The honest truth is that most officers have no better memory than the average person. In fact, most drivers who are accused of DUII have a very vivid memory of the events because it was the first and only time they've ever been arrested and accused of a crime. By comparison, the DUII investigation and arrest was only one of many for the average officer on a twelve-hour shift looking to quickly fill out his cut-and-pasted or fill-in-the-blank multiple-choice report and head home.

By Michael G. Romano, December 29, 2007

One of the biggest problems with the Field Sobriety Tests that are given to Oregon drivers is that they two of them are based almost entirely on the driver's balancing skills, and physical condition. The Walk and Turn test requires drivers to walk a total of 18 steps down and back what is usually a totally imaginary line. The One Legged Stand Test requires the driver to stand on one foot for thirty seconds and to hold the other leg and foot out straight in front of them. Any driver with poor balance or reaction times will have trouble completing these tests. Similarly, anyone with bad feet, ankles, knees, hips, or back problems will have difficulty performing these tests.

The fact of the matter is that many people aren't as limber, agile and coordinated as they were in high-school (if they ever were). Most people have never been forced to walk a straight line heel to toe and then balance on one foot for thirty seconds without ever raising their arms. These Field Sobriety Tests aren't based on reality because most people have never been required to perform such tests before, and there is certainly no requirement that people be able to perform these tests prior to receiving their driver's license or driving.

Ask yourself this: What is the one thing your body naturally wants to do when you begin to lose your balance? Raise your arms a bit, right? Or maybe you hop or tilt your body to shift your weight? Well, the cop investigating you for DUII will count that naturally tendency (for you to try and catch your balance) towards a failure. The bottom line is that the simple fact that you do as your body is inclined to do may cause you to be arrested, taken to jail, and to lose your license. Even setting aside whether or not this is fair, does it even make any sense?

Now, a skeptic may think, "Well of course and officer wouldn't require someone with bad balance or an old football injury to perform these tests." This is not true. Most officers have three Field Sobriety Tests available and only three Field Sobriety Tests available. Most officers are further trained to believe all statements made by drivers which are liars (unless the driver makes only incriminating statements). So drivers who may be unable to do the tests will either not do them and be noted in the police report as "uncooperative" or "refusing" the tests, or the driver will attempt the tests and be noted in the police report as "too impaired to complete the tests."

Police officers aren't yet able to require drivers to ride a unicycle before they can drive a car. But we're not that far off.