Using Public Record Requests To Challenge Breath Test Results

DWI defense attorneys routinely challenge police actions on the basis on faulty breath-test machines or similar scientific matters.

But a series of cases involving the police departments in Washington State suggests public record requests may open new avenues of attack.

In one case, reported in the Seattle Times, a number of DWI prosecutions were thrown into chaos when it was learned that three police officers, members of the Seattle Police Department, routinely violated departmental policy that a superior officer had to review and approve DWI arrest reports.

Two members of the department’s DUI Unit routinely used a rubber stamp of their sergeant’s signature to indicate he had approved the reports as required by departmental policy when in fact the sergeant never saw the reports.

A third officer put written statements in his reports indicating his sergeant had screened the arrests. In this case, too, the sergeant never saw the reports.

Given the clear directive that DUI arrest reports be reviewed an approved by the DUI Unit sergeant, why weren’t the reports reviewed, and why was a rubber stamp of the sergeant’s signature used to create the appearance that the reports had been reviewed?

According to a memorandum from the Seattle Police Department’s internal affairs section, “[w]itnesses indicated the DUI sergeant … had told them he “pre-approved” their arrests and offered his signature stamp, that the stamp was used to satisfy SPD’s data center and not to deceived, and that the practice (‘pre-approving’ arrests unless there were aggravating circumstances such as use of force) dated back 20-25 years.

“The rational for this pre-approval and pre-screening approach seems to be based on two assume[ptions: (1) most agencies do not require DUI arrest screening since the majority of DUI suspects are released after processing, and (2) these DUI officers are the Department’s experts in the identification, arrest, processing and courtroom presentation of evidence for the prosecution of SPD DUI cases and it is unnecessary to have a (sometimes) less knowledgeable sergeant reviewing their reports.”  Seattle PD Memorandum, Office of Professional Accountability, dated June 22, 2011.

The result of this scandal, which was splashed all over the Seattle Times, was that the department pulled all but one member of the DUI squad from the street as prosecutors moved to continue all prosecutions.

The immediate teaching point of this is to remind practitioners to verify that every requirement for DWI prosecution is reached.

Beyond that, defense counsel should seek to determine whether there is a pattern of violations of policy or prescribed operating procedures. While counsel is entitled to data on an individual case, it may be beneficial to obtain internal police reports on a broad number of cases — for instance, all cases by a particular officer over the course of a year or two.

That may lead to a request filed under a freedom of information statute, and that request, in turn, will likely be rejected on the ground that internal affairs investigations of an individual officer are personnel matters, exempt from disclosure, and other information deals with investigative files which are also exempt from disclosure.

But Washington Supreme Court case has ruled that internal affairs investigation reports should be publicly disclosed even when accusations against the officers are not upheld. See Bainbridge Island Police Guild v. City of Puyallup, Washington State Supreme Court docket 82374-0, decided Aug. 18.

This article originally appeared in 25 DWI Journal Law & Science 4-5, September 2011.

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