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Hiding Driver Off Camera

Welcome back to the DUI Trial Lawyers Academy. This podcast is brought to you by Silva and Great lawyers, helping great people. And now for your host, sought after speaker, avid mountain bike racer and renowned DUI trial lawyer, Patrick Silva.
Patrick Silva:
Back to the DUI Trial Lawyers Academy podcast. This is your host DUI attorney Patrick Silva. Today we're going to talk about what to do on a cross examination when the arresting officer takes your client off view of the camera. You've probably seen a hundred videos where the officer pulls him over, he's driving fine, he parks fine, turns it off. Officer approaches your client's car door. Eventually your client gets out, doesn't lean on the door. He sounds perfectly fine on the body-worn microphone. He walked perfectly fine. And you expect that if he did the field sobriety tests, he'd do those perfectly fine as well. The problem is he takes him off camera. So what do we have to rest our argument on? That, oh, we have to trust you Mr. Officer, with your written words versus what the camera shows. I remember an old saying my dad used to tell me. He used to say, "I don't believe everything I hear, but I'll believe it when I see it".
In a cross examination of the officer, let's say the very first thing we're going to do is set the scene. We're going to tell our story through our statements and we could follow it up with, "Is that right? Isn't it true? Is that correct?" But we're going to set the scene in the beginning. We might say something like this, "Well, officer, you asked my client to get out of his car. Is that right? At that point, what's going through your mind officer is that you're going to give him some field sobriety tests, right? Is your patrol car equipped with a dash camera? Is it true that the dash camera will continuously record on a 40 hour loop onto a hard drive? At the beginning of your shift, you actually insert a CD disc into the system in order for it to record parts of your workload that day, is that right?
And what actually happens is every time there's an incident, you turn on your lights, you use your bullhorn, flashers, that the incident will back up one minute in time, and it'll start recording onto this CD. And at the end of the shift, you turn that CD into your watch commander or whoever's in charge. Does that sound correct? The dash camera that's mounted on your car. Is it stationary or does it allow you to move it from side to side? What we find here in California is the dash cameras mounted on the California highway patrol vehicles are stationary mounts. Now here's another interesting fact with the CHP cameras. The CHP cameras you're going to notice are very, very poor quality cameras. Here's why. When this system went into effect back in 2010, I believe it was September ninth, 2010. It went statewide, and you're talking they've spent millions and millions of dollars to get all the patrol cars equipped with dash cameras.
And the CHP actually thought they were saving a little money when they used what are called the rear facing cameras for the front facing cameras, lower quality. If you look at some of the other police agencies that have dash cameras you're going to notice there's a huge disparity in quality between a CHP and let's say an Upland PD or a La Verne PD. When you see their cameras, it's going to be like watching HDTV. When Redlands had cameras in their police cruisers, their system was very, very high quality. When you asked my client to step out of the car, did you place him next to his vehicle in order for him to perform the field sobriety tests?" Of course the officer's going to say, "No, we know where we took him." "Well, officer, did you at least put him next to the front panel of your vehicle? That way the camera could record?"
And he's going to say no. "And officer, where did you ultimately place him?" We know that he put him on the side of his vehicle. The reason why is that we know that we're not going to be able to see the performance of the field sobriety test. "Officer Jones, if you would have placed my client from the front of your bumper to the rear of his car, even on the sidewalk, the camera would have been able to capture his performance of the field sobriety tests. Isn't that true? And then these good folks sitting in the jury box here, they could be the judge of how my client looked during the performance rather than having to rely on your written words in the police report. Is that a fair statement?" That last question you might get an objection from the DA. You might or might not, it all depends.
You just got to be quick on your feet and be ready for another question to rephrase it. But ultimately what we're trying to get into the juror's mind is that, Hey, was it really fair to take the client off camera in order to administer the field sobriety test? Let's talk a little bit about the body-worn microphones. When we're talking about CHP, and mostly the other agencies that are equipped with a dash camera system, the officers are wearing a body-worn microphone. The problem is, is this microphone can turned off. i.e. manipulated by the officer that doesn't want his voice heard. Here's one of the problems I'm seeing with the CHP dash cameras that I'm viewing lately is that probably 50%, 60%, 70% of the videos I'm watching don't have any audio. Now, the CHP have a general order that says the officer's supposed to check his system.
He's supposed to make sure that the microphones are working properly and there's actually two battery chargers inside the car for the microphones. So in reality, there's no reason for the officer to have a dead battery. In the CHP general order they're also required to make sure they have a fully charged body mic before they even start the shift. How can you catch them? Well, there is a form, and I forgot the number right off the top of my head, but if there's anything wrong with the CHP form, sorry, if there's anything wrong with the CHP embark system, they're supposed to fill out a repair order and turn it into the Sergeant at the end of the night. What you're going to notice is they never do that. So when you're doing your discovery work, do a request for the repair order for any embark modifications, repair orders that might've been submitted by the arresting officer that night. Getting back to the cross-examination questions, "Officers are there microphones inside the squad car?"
Of course, he's going to tell you, "yeah". "And you actually have microphones that wear on your body. Is that true?" "Of course." "Officer, it's actually true that you could turn off those microphones. Now, officer, when we listened to the dash camera, we heard a distinct click when you exited the car and was approaching my client's car. Was that you turning off the microphone?" Now at this point, he's going to deny everything, but what you're setting up is that the question is raised in the jurors mind. And actually in reality, when I've talked to audio technician specialists who deal with audio and video, they've been able to point out that, Hey, this is a definite turn off of the microphone. So that's something to be aware of.
The officer might come back, "well, my batteries are dead." And then that's when you'd go back to, "Well officers, isn't it true that there's two battery chargers inside your patrol vehicle. And if your batteries are dead, you're supposed to charge them. Is that true?" And he's going to tell you, "yep". And you can follow up on the other question, "And officer, if there's anything wrong with your system, you're supposed to fill out a repair order. You didn't do that this night, did you officer?"
Now let's talk a little bit about motivations and why. And in reality, I think if we put ourselves in the shoes of the officer, he doesn't want to be questioned on his ability to judge the sobriety of a person he doesn't want to be judged on whether or not he did the field sobriety test correctly, or whether he administered the field sobriety test correctly. That's why they take him off camera. Now, in retrospect, I've seen two to three different officers over my career where they put their arrestees right in the front of the car. They try and catch them off to the side so that you could see them. Well, guess what? Those officers, they administer the field sobriety test correctly. Maybe that's why they do it their way. "Well, officer, isn't it true that if you take my client and you hide him off the side of the patrol vehicle, so we cannot see you administer the field sobriety test, isn't it a lot harder for a defense attorney like me to come in here and challenge your expertise?"
You know you're going to get an objectionable sustain question on that one, but knowing that, you can rephrase it. You might say something like, "Officer, if you take the driver and you put him on the side of your vehicle, these good folks here sitting in the box are not going to be able to see how you administer the field sobriety test or how my client performed. Isn't that true?" You could probably get that question in. "Officer Jones, you testified previously that under NITSA, the National Highway Traffic Safety Administration, that you're supposed to administer the field sobriety test in the same prescribed manner. It's kind of like McDonald's, if you order French fries in California, you're going to get the same French fries in New York. Is that a fair statement?" Yes. What you're setting up here is you're trying to tie the officer down that he has to give the test correctly.
At that point you could say, "Well, officer, if we're not able to see whether or not you administered the field sobriety test in conformity with the NITSA standards, is it difficult for these folks here to judge the quality of your police work?" I think you'll be able to get that question in. "In a sense officer, if we cannot see how you perform the field sobriety tests, these good folks have to rely on your testimony here today and the written words in your police report, is that true? And if we can't see how my client performed the field sobriety test, again, these good folks here sitting in the jury box have to rely on your testimony and the written words in your police report." And again, what we're setting up here is just putting a bug in the... Now we're going to ask about policy and procedures, whether it's CHP, La Verne PD, Rialto, Colton. They're going to have rules and procedures on how to use the dash camera system.
"Officer Jones, there's actually policy and procedures regarding the operation of your dash camera system. Is that true? And it's known as a general order. One zero one is that right? This general order actually tells you that you need to capture all evidence on the video system. Isn't that true? Now, if you get a copy of the general order, which I have, if you email me, I'll send you a copy of it." But what we're trying to establish is that he's not following his own rules and procedures, then you can follow up with, "Are not the field sobriety tests evidence. Did you not testify earlier that my client's performance on the field sobriety tests were the reason that you arrested him?" At this point what you might want to do is refresh his memory with the general order. Make sure that you're going to establish that he relied on the general order in his training. He understands it.
Here's a problem I've come into. I've had officers on the stands where they don't know the general order. They've heard about it. They've never seen it. In the CHP world they're required to review the general order and be signed off every six months. So it's important to get a copy of that general order or the police agency, whatever instructions and policies they use to enforce the use of the dash camera system. I hope you've enjoyed this podcast. If you have any particular questions you have, or you'd like me to cover a particular topic, you can send an email to my personal email. It's my name, That's P-A-T-R-I-C-K-J-S-I-L-V-A. In that subject matter line, put "A question for your DUI Trial Lawyers Academy podcast". This is attorney Patrick Silva. Put on the boxing gloves, get in the ring, and have a good fight. Goodbye.

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