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Inconsistent Police Testimony? Its the Only Consistency!

Lawyers see DUI report, grand jury differences
By Kim Smith ARIZONA DAILY STAR

Two local defense attorneys believe hundreds of felony drunken-driving cases could be dismissed because of the way they were presented to Pima County grand jurors.

Prosecutors disagreed with the estimates on affected cases.  Law partners James Nesci and Joe St. Louis recently discovered a handful of Tucson Police Department cases where the evidence presented to the grand jury did not match police reports. In each case, a detective told the grand jurors the suspect failed field sobriety tests and exhibited other signs of intoxication when, in fact, they had not.

When St. Louis questioned the detective, he learned she had based her presentation on a summary sheet provided by prosecutors and, in many instances, she hadn’t read the police report to verify the information. David Berkman, the chief criminal deputy with the Pima County Attorney’s Office, said these “were fairly isolated cases” and the problem has been addressed.

Deputy County Attorney Paul Lauritzen, who supervises grand jury operations, said he expects some defense attorneys to file motions to dismiss DUI cases against their clients, but he doesn’t believe a significant number of them will be granted.

“The idea that this is going to affect hundreds of cases, at best, is an extreme exaggeration,” Lauritzen said. “It’s not true.”

According to a transcript of St. Louis’ interview with the detective, she was assigned by the Tucson Police Department to present many of the department’s DUI cases to the grand jury as part of her regular duties. She herself hasn’t made a DUI arrest since her promotion to detective 10 years ago.

Superior Court Judge Frank Dawley recently dismissed a case against one of Nesci’s clients as a result of the faulty information, St. Louis said.

Other motions to dismiss are pending and many more are likely to be filed, St. Louis said.
Berkman said, “It has never been the policy of our office to just allow summaries to be read. We expect the detectives to review the reports.”

Summary sheets will no longer be provided to detectives in DUI cases, Berkman said. Either the detectives will read the reports and memorize what they’ve read or they will bring the reports with them into the grand jury room.

Detectives who present other sorts of cases have always used summary sheets, but only when they have participated in preparing them, Lauritzen said. Detectives were never required to take part in preparing the summaries in DUI cases because they are typically far less complicated than other sorts of felonies, Berkman said.

Grand jurors usually make their decision to indict just on the basis of field sobriety tests and blood alcohol levels, whereas there are many more complex factors involved in something like a homicide case, Berkman said.

Lauritzen said he doubts many motions to dismiss will be granted because for a judge to grant such a motion, defense attorneys would have to not only prove the summary sheet was in error, but that the errors harmed the defendant in some way.

The most common issues in the a DUI case are the inconsistencies in the police reports and video tape or other similar evidence. The problem is you have to challenge the DUI by placing officers on the witness stand under oath to discovery this evidence. I recently had a DUI Georgia jury trial where a driver who blew twice the legal limit was found not guilty on all counts primarily because the officer drastically exaggerated my client’s driving and performance on fields. This was simply dis-proven by the video tape which left the officers without credibility. That’s why it s important to fight your Georgia DUI !