Police Misconduct

Most of us expect police officers to know the law and follow the law at all times. However, just as we make mistakes from time to time, so do police officers. Fortunately, their mistakes can often work in your favor. When the police officers who handled your case, mishandle some very important aspects of it, the “bad” evidence obtained against you may be suppressed (or thrown out of court). This is particularly important as the prosecution is entirely dependent on the evidence that he or she has obtained in seeking a conviction. Loosing that evidence as a result of a suppression hearing not only weakens their case but may ultimately lead to it being broken down or dismissed entirely.

Every DUI case is unique and the facts surrounding what may ultimately result in a determination that your rights were violated are endless and to list them all on this site would be impossible. Some examples of police misconduct that can occur during your D.U.I. arrest and investigation include:

Illegal stopping of your vehicle:

In order to pull your car over, the police officer must have ‘reasonable suspicion’ to stop you. If the stopping officer observes your vehicle swerving over lanes, that may constitute ‘reasonable suspicion’. Similarly, if you are driving too fast, driving with a broken headlight, broken taillight, or even with your high-beams on (in traffic), that may also be sufficient ‘reasonable suspicion’ to pull you over. If however, after an investigation of your case, it is discovered that your broken tail light was nothing more than a crack in the red plastic, or if you were driving with your high-beams on and a significant distance from other automobiles, such a stop is considered illegal and an appropriate motion to suppress should result in an order excluding all evidence after the illegal stop. This includes officer observations, breath results, roadside sobriety excesses and anything else that the state attorney might rely on to obtain a conviction. Minor swerving within lanes has been also found to be an insufficient reason for an officer to stop your vehicle. Similarly, since newer automobiles are equipped with three or more, a stop for a malfunctioning tail light, when two of the three on your vehicle were operating properly, is improper.

The Police Officer had no Probable Cause to Arrest you. The police officer needs a legal cause to arrest you, i.e. evidence of your driving under the influence.

The Police Officer made Inaccurate Statements About the Arrest. Officers often fail to document certain aspects about the arrest. Sometimes its inadvertent, other times it’s intentional. Often an officer’s recollection of evens is simply due to a poor memory or being overworked. In some cases inaccurate statements may even be motivated by personal feelings or prejudices. Whatever the reason, the failure to make an accurate statement about your arrest can be devastating to the State Attorney’s case against you.

Failing to Follow Proper Procedures and Rules when Administering Field Sobriety Exercises.

The circumstances and conditions under which the excercises were given and what the officer considers “failing” the test, may be forms of misconduct. Referring to the filed sobriety exercises by law enforcement as “tests” that can be “passed” or “failed” is improper.

Failing to Follow Proper Procedures when Administering the Breathalyzer Test.

The use of the intoxilyzer to obtain ones blood alcohol content has been criticized widely since law enforcement’s employing the device in an effort to seek convictions for those suspected of DUI. Consequently, many safeguards have been put into place in order to attempt to minimize the number of innocent persons being convicted. Ultimately, there are countless reasons that the court may rule in favor of excluding “breath evidence” Some of the most common examples are:

The breathalyzer machine needs to be regularly maintained and serviced to ensure accurate results. If the machine has not been serviced or calibrated, this could be grounds for suppression.

If the police officer failed to observe you for a period of twenty (20) minutes prior to administering the breath test, the results should be excluded.

If the technician who performed the test is not properly certified, and is not current with his/her educational requirements, this constitutes a failure of legal procedure and any results obtained should be excluded from the states evidence.

Breath testing machines are routinely taken out of service. An experienced DUI attorney will always determine the status of a particular breath testing unit long after it was used in your case, in addition to examining all documentation regarding the particular instrument used.

Failure to Give Miranda Warnings: As you know from watching television, when someone is arrested the arresting officer (is supposed to) read them their Miranda Warnings (“You have the right to remain silent. You have the right to an attorney etc.”) Any incriminating statements made by you after your arrest and before you were given your Miranda Warnings should be suppressed.

Failure to Tell Give Implied Consent Warnings. If the police officer failed to advise you of the consequences of refusing to a breathalyzer this may affect not only the sdmissability of the tests but result in the reinstatement of your drivers’ license.

Sometimes Police Officers Do Not Show Up to Hearings

Did you know that the vast majority of license suspensions that are overturned by the Department of Motor Vehicles are overturned because the police officer involved in the case failed to show up at the administrative review (i.e. Formal Review) hearing?

Additionally, many D.U.I. charges are ultimately dismissed or broken down into lesser offenses, (typically, reckless driving), because the police officer failed to show up for court in the criminal case. There are two situations in which a police officer is asked to appear in court and, where his failure to appear, could result in a dismissal or breakdown: 1) a hearing on a motion to suppress (the evidence against you, which is filed by your attorney on your behalf); and 2) at trial. Absent the need for a hearing or a trial on the merits, there is no reason for a police officer to “show up” for court.

If your attorney does not file a motion to suppress and give the police officer a reason to come to court, he may never be required to come to court (and consequently you lose an opportunity to allow the officer to not show up and to obtain a potential dismissal). It is the filing of this motion that places the police officer in the position of having to appear in court, and places you in the position of potentially having your case dismissed or broken down if he fails to do so.

How often does this happen?

It is difficult to say definitively just how often this happens but rest assured it does. Below is a list of D.U.I. cases in Broward County that were dismissed due to the failure of police officers to show up for hearings and/or trials. Recently, my firm had a case dismissed in its entirety after all of the police officers involved failed to appear at a hearing on a motion for suppress three times in a row.