It is extremely rare for a DUI attorney to come across a DUI police report where the officer doesn’t “observe” the “objective symptoms” of intoxication. It’s not surprising. Without them, what other reason does the officer have to further investigate for a DUI? They serve as the “door openers” for a DUI investigation. So this begs the question: Are cops just rubber stamping the “blood shot, watery eyes,” “thick, slurred speech,” and “strong odor of alcohol” on their reports just to open the door?
Seasoned California DUI attorney Lawrence Taylor has coined this practice “Xeroxing” DUI symptoms. Often the officers merely write their reports using the word-for-word language that appears on the pre-printed DUI arrest forms used by the California Highway Patrol, the Los Angeles Police Department, and other Southern California law enforcement agencies. Officers only need to “check off” the listed symptom that they “observed.”
What’s more, there have been several instances of officers admitting to essentially copying and pasting old reports onto, what should have been a new report.
Let’s say that an officer does, in fact, observe these “objective” symptoms of a DUI. Do they actually indicate a DUI?
Take, for example, Jessie Thornton who displayed the symptom of bloodshot, water eyes. After attempting to explain to the officers that swimming at his local gym was the cause of his red eyes, the officers arrested him anyways. It was later determined that he had a BAC of 0.0 percent. Gee, I wonder what else could cause red eyes other than intoxication. How about contact irritation, cigarette smoking, allergies, dry eyes, computer vision syndrome, lack of sleep, or any eye condition including pingueculitis, which I suffer from.
So how about the “slurred speech?” Officers consider it a telltale sign of intoxication. Slurred speech, however, can be the result of anxiety, dysarthria, a stroke, speech impediments, chemotherapy, and a number of other medical issues. When it comes to a DUI investigation, these causes of slurred speech might as well be non-existent.
And, believe it or not, the “objective” symptom of an alcoholic odor may not be so objective. According to a 1999 study entitled “Police Officers’ Detection of Breath Odors From Alcohol Ingestion,” experienced DUI officers could not identify which type of alcohol subjects had been drinking based on smell. More importantly, the experienced DUI officers could not accurately estimate the BAC levels based on smell.
The “objective symptoms” of intoxication that law enforcement almost always “observe” may very well indicate something other than evidence of a DUI and, in some cases, may not even be present.