Police Officer as Expert at DMV Hearing

by Jamison Koehler on January 26, 2015

Q:  You are certified to administer the standardized field sobriety tests?

A:  Yes.

Q:  So you are familiar with the science behind the standardized field sobriety tests?

A:  Yes.

Q:  And you are aware that the tests have never been peer-reviewed?

A:  Um.  I was not aware –

HEARING EXAMINER:  What is the relevance of this?

A:  That’s –

HEARING EXAMINER:  — No, no, no.   Counselor.  What’s the relevance of this for an administrative hearing?

DEFENSE COUNSEL:  The accuracy of those tests is completely relevant to this hearing.

HEARING EXAMINER:  The accuracy of what tests?

DEFENSE COUNSEL:  The standardized field sobriety tests.  You want to know if my client was impaired that night.  The tests are designed to measure that.  And yet the accuracy of those tests has never been peer-reviewed.  That is relevant.  That is an issue that –

HEARING EXAMINER:  –But that is not an issue that this tribunal can address.  This is an administrative hearing as to whether her D.C. license will be revoked.  Our determination is whether your client was impaired at the time she was operating a motor vehicle.  Now if you say the tests are faulty –

DEFENSE COUNSEL:  Yes.  That’s exactly what I am saying.

HEARING EXAMINER:  I will tell you right now, I do not, unless you have an expert here to testify as it relates to the field sobriety tests, unless you can provide that testimony through an expert –

DEFENSE COUNSEL:  — I have an expert right here –

HEARING EXAMINER:  — I cannot allow that line of questioning.

DEFENSE COUNSEL:  Let me try –

HEARING EXAMINER:  Because you are trying to get the officer to say that the tests are not peer-reviewed.  What does that mean? What does that mean to the officer?

DEFENSE COUNSEL:  I don’t care what it means to the officer.  What matters is what it means to you.

HEARING EXAMINER:  Right.  And so the officer says it wasn’t peer-reviewed, how do you refute that if you don’t have an expert?

DEFENSE COUNSEL:  I have an expert.  Right here.  The officer is an expert.  He has been certified multiple times in the administration of the test.  Otherwise he wouldn’t be qualified to testify.

HEARING EXAMINER:  No, no.  Where is your expert?  He is the government’s expert.

DEFENSE COUNSEL:  And now he is my expert.

HEARING EXAMINER:  Counselor.  Move on.

DEFENSE COUNSEL:  Madam Examiner –

HEARING EXAMINER:  Counselor.  I said move on.

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Refreshing Recollection at a DMV Hearing

by Jamison Koehler on January 22, 2015

DEFENSE COUNSEL:  Objection.

HEARING EXAMINER:  Basis?

DEFENSE COUNSEL:  I would ask that the officer testify from memory and not read from his report.

HEARING EXAMINER:  Officer, are you testifying from memory or are you using the report to refresh your recollection?

OFFICER:  I am using the report for recollection.

HEARING EXAMINER:  Okay.  And are you relying solely on the report or are you relying on your memory and the report?

OFFICER:  Solely on the report.  I was just going to add something on the respondent’s demeanor and cooperation.

HEARING EXAMINER:  Do you have independent knowledge of the situation?

OFFICER:  Yes.

HEARING EXAMINER:  So you are using the report to refresh your recollection or are you using the report because you don’t have any recollection?

OFFICER:  I do have recollection.  I don’t want to misspeak.  Because this is an administrative hearing, I have done that many times in the past.  I have never been told that it was not allowed.

HEARING EXAMINER:  Okay.

OFFICER:  So if that is something that is not allowed, this is a first and I would have studied it a little bit more carefully if I need to be verbatim from memory.

HEARING EXAMINER:  Okay.  Counsel, I overrule your objection.  He is using it to refresh his memory.

DEFENSE COUNSEL:  I understand but if you overrule my objection –

HEARING EXAMINER:  — I am moving on.

DEFENSE COUNSEL:  I would ask that he put the report away.

HEARING EXAMINER:  No, no, no, no.

DEFENSE COUNSEL:  That’s –

HEARING EXAMINER:  — He can use the report to refresh his memory.  Officer, please continue.  Proceed.  You started with the date.

OFFICER:  On September 23, 2014, I received a radio run –

DEFENSE COUNSEL:  — Madam Examiner, I would note for the record that he is reading from his report.

HEARING EXAMINER:  Okay.  That’s fine.  Because what I don’t want you to do is belabor.  I have already made the ruling.  And I understand, counsel, that you don’t agree with the ruling.  I completely understand that.  But my ruling is, he is allowed to use the report.  This is an administrative action.  I am not going to tell him to put the report away.  I have already made my ruling so I would ask that you refrain from making the same objection.

DEFENSE COUNSEL:  Well –

HEARING EXAMINER:  — Because I have already ruled.  Your objection is on the record.

DEFENSE COUNSEL:  Actually I am now making a different objection.  The court – Madam Examiner – has already made a legal ruling on the officer’s ability to use the report to refresh his recollection.  I am now asking the court to make a factual finding that the officer is in fact reading directly from the report.

HEARING EXAMINER:  My factual finding is that he is using the report to refresh his memory.  And he can do that.   That is allowable.

DEFENSE COUNSEL:  Madam –

HEARING EXAMINER:  — Okay.  That is allowable.  Officer, proceed please.

OFFICER:  On September 23, 2014, I received a radio run that Officer Jones had stopped a motorist he believed was impaired . . .

DEFENSE COUNSEL:  Madam Examiner.  If you read the transcript from this hearing and you compare it to the officer’s report, you will see that he is reading from the report verbatim.

HEARING EXAMINER:  My response, counsel, is the same.  I clearly understand that you do not agree with my finding.  That’s your right.  But I have said the officer does not need to put, the officer does not have to put the report away.  He can use it, he is using it to refresh his memory.  Proceed, officer, please…

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