Impaired Driving Update

Transcription

1 Impaired Driving Update Washington Traffic Safety Resource Prosecutors Issue 7 October 2011 Hard Works Pays Off:. Washington Traffic Safety Commission Releases Promising 2010 State Impaired Driving Statistics The newest traffic data released by the Washington Traffic Safety Commission shows significant reductions in 2010 as compared to the five year average. There is a reported 23% decrease in deaths involving a driver with a BAC of.08 or above; a 17% decrease in alcohol and/or drug impaired deaths; and a 21% decrease in alcohol and/or drug impaired serious injuries. The collaboration and hard work of prosecutors, law enforcement, judges, court professionals, probation staff, treatment services, traffic safety professionals, and emergency medical staff have collectively saved lives and protected other families and communities from the grief of this preventable crime. Thank you all for making a difference! this issue 2010 Impaired Driving Stats Pg. 1 A Call to Action Pg. 2 Trial Tips - Singing in the Shower Pg.3 Ethics Webinar & TSRP Shout Outs Pg. 4 FAQs Pg. 5 Statewide DUI Symposium Pg. 6

2 A Call to Action NDAA Address by Suffolk County Elected DA, Daniel Conley It can be a challenge to pull ourselves out of the daily struggles, the budget crunches, and the stresses of trial practice to recognize the positive impact prosecutors can have on our communities and on the criminal justice system at large. In a recent address to the National DA s Association Executive Program, Suffolk County (Boston, MA) Elected DA Daniel Conley urged prosecutors to heed his call to action. Hopefully Conley s words will inspire you and reignite your passion for seeking justice for the often voiceless victims of crime and the general public. Today, perhaps as never before, the voices of America s prosecutors need to be heard. Importantly, we can t just be the voice of opposition or the status quo. We need to speak out with policies and proposals of our own that represent true smart-on crime approaches, can produce cost savings, and that put prosecutors at the forefront of the type of positive reforms that bolster public confidence in the cause of justice and the manner in which we pursue it. I will conclude today with a call that we, America s prosecutors, lead a renewed effort to earn greater, deeper, and more widespread trust in those communities where mistrust is rooted in years and years of historic injustices. These are the same communities where the most serious violent crime is concentrated, where the overwhelming majority of the victims we serve call home, and Actions begin with the way we prosecute each and every case that comes before us with the utmost honesty, integrity and independence. where partnerships between law enforcement and the community pay the greatest dividends. Our interests are aligned but mistrust and skepticism too often obscure this plain fact. This can t be about words but must be about action. Those actions begin with the way we prosecute each and every case that comes before us with the utmost honesty, integrity and independence. Second, we need to be the primary movers in enacting criminal justice policies and practices that instill the greatest public confidence. Third, we need to be much more vocal in educating people about what we do and how we do it. Finally, and most importantly, we need to embrace and practice real transparency. Transparency is our best friend and the cornerstone of our relationship with the communities we serve." Full text of this inspiring address may be found here:

3 Singing in the Shower Simple Prep to Elevate your Trial Performance By Courtney Popp, TSRP Former Washington Redskins coach, Joe Gibbs, famously stated A winning effort begins with preparation. Most prosecutors are well aware of the importance of preparation for motions or trial. We are trained to do thorough legal research, draft briefs and trial memos, and carry a notebook of scripts and predicate questions into the courtroom. Law Enforcement officers similarly learn early on in their academy careers that they need to prepare rote answers to frequently asked questions such as, What is HGN? Although you may have drafted out everything you intend to cover in trial or a motion hearing, you simply cannot substitute the power of actually speaking out loud your arguments and answers. Noted law enforcement trainer and former prosecutor Valerie Van Brocklin suggests you take 20 or 30 minutes a week to simply read out loud and practice your vocal inflection, pitch and pace. This could be done in the shower or on the drive to work, or perhaps you can rally a couple of coworkers or friends to sit in the courtroom as you go over your opening statement or practice direct exam of your key witness. This is also an excellent team-building opportunity for prosecutors and law enforcement officers to develop a stronger rapport. For a newer prosecutor or officer, would it be more useful to sit in an office for 30 minutes discussing questions in general, or to find an empty courtroom to do a trial run through the main points of the testimony without the added stress of a room full of people watching? By physically speaking your materials, you will gain a much higher mastery of your facts and finesse your speech patterns. You or your volunteer audience will pick up unintended catch phrases or repeated legalese or cop talk that make your trial presentation confusing, and prevent the jury from connecting to your story. Incorporate these basic suggestions by reading to your children every day, reading the newspaper out loud a couple of times a week, or giving dynamic closing statements in the shower. When I was a deputy prosecutor commuting 20 minutes to court, I would spend the travel time practicing my opening statement and cross. Although heavy caseloads TIP: Consider videotaping your performance, and watching a playback to critique physical demeanor and interest level. Caution: it may not be advisable to attempt this for the first time on the eve of trial. The results may shake your confidence if you suddenly realize you have a terrible physical or vocal tic. Build in a few days to correct any issues detected in presentation style or content. and reduced manpower limit a line prosecutor or patrol officer s courtroom preparation time, increasing your overall confidence in your presentation skills will mean you spend less of that time in fear of failure. Your increased confidence in your skills will be a tremendous asset in your courtroom tool kit.

4 ETHICS CLE CREDITS WEBINAR SERIES The TSRP program will be presenting 2 hour-long webinars in December. As part of our Ethics for Prosecutors series, we will present a webinar on General Ethical Considerations for Prosecutors on November 29th at 12pm. A second webinar covering Media Relations and Social Media Use by Prosecutors on December 7 th at 12pm. 1 WSBA Ethics CLE credit pending per webinar. Sign up now to reserve your slot: GENERAL ETHICS FOR PROSECUTORS MEDIA RELATIONS AND SOCIAL MEDIA USE What Do You Want to Know? The TSRPs and the DRE program are looking for potential topics that would make interesting webinar training sessions for prosecutors and law enforcement officers. Sessions should be capable of presentation in minutes. Please send any training topic requests (or suggest your own to teach and disseminate across the state we d be happy to help you become a star!) to us at tsrp@duiprosecutor.com. A special thank you goes to Deputy Prosecutor Allen Blackmon from the Chelan County Prosecutor s Office. Allen jumped in to teach the legal update session to over 200 DREs at the statewide DRE In-Service held last month in Wenatchee. With short notice, Allen provided an engaging, thorough discussion on the 2011 legal changes impacting law enforcement and the DRE program to a very appreciative audience. Thank you, Allen! The TSRPs would also like to recognize the continued dedication and partnership provided by Senior Deputy Prosecutor Amy Freedheim of the King County Prosecutor s Office. In between a crushing caseload of all felony vehicular crimes in King County, Amy still manages to provide her incredibly dynamic style to sessions in our Lethal Weapon: Vehicular Homicide/Assault courses, and represent prosecutor interests in legislative work groups! Thank you, Amy!

5 FREQUENTLY ASKED QUESTIONS Q 4: In a felony DUI with a stipulation to the prior offenses which qualify the defendant on the felony, what are the limitations on referencing the specifics of the priors? A: Under U.S. v. Old Chief (519 U.S. 172 (1997)), you would need to craft a very specific stipulation in which the defendant would stipulate to the exact elements of the crimes (the offenses counting as prior offenses under RCW ) and his identity as the perpetrator of those crimes. (Contact the TSRPs or WAPA for a sample Old Chief stipulation.) Your references would be limited solely to that element of the crime, that the defendant has four or more prior offenses within ten years as defined under RCW You cannot name the prior offenses, identify the subject matter of the RCW, or otherwise comment on the stipulation. See also, State v. Roswell, 165 Wn.2d 186, 198, 196 P.3d 705 (2008), Fn. 6, which sets out the proposed procedural approach for a court to employ to reduce inherent prejudice (namely, permitting the defendant to stipulate to the prior conviction element, but have the trial court inform the jury of the element by utilizing statutory citations rather than the name of the crime. Before the stipulation is entered, the court would be required to engage in an on the record colloquy with the defendant regarding the effect of the stipulation. The jury would then be instructed that the defendant has stipulated to a specific element of the charged offense and that this element is to be considered proved beyond a reasonable doubt. A jury instruction would then be given, which includes the following: Conviction under the charged statute requires the prosecution to prove beyond a reasonable doubt the element that the defendant has a certain number of prior offenses within the requisite time period; The defendant has stipulated to the existence of at least the requisite number of prior offenses and that the prior offenses occurred within the requisite time period; The stipulation is evidence only of the prior conviction element; The prior conviction element of the charged offense must be taken as conclusively proven; The jury is not to speculate as to the nature of the prior convictions; and The jury must not consider the defendant's stipulation for any other purpose. Q 5: How long must the officer allow the defendant to speak to his attorney before the officer can insist the defendant take or refuse the breath test? A: The courts have no bright-line time limit. In many cases, the time hovers around 15 minutes, but some are only seconds long and others linger on for 30 minutes. The language from the cases is that the time must be reasonable. That means the court will consider all the circumstances to decide if the time allowed to the defendant was sufficient or if the officer interfered with the defendant s right to consult an attorney. When a defendant has prior DUI offenses and is uncooperative from the onset, the court would likely accept that more than minutes consultation is probably a delaying tactic. With a distraught but cooperative first-timer, the court might be more inclined to punish an officer trying to hurry the process along. Importantly, the right we are talking about is not the Sixth Amendment constitutional right to an attorney it s the procedural right provided by the implied consent statute and the court rules. That means even if the court concludes the officer interfered; harmless error analysis applies and the defense must still show prejudice to their case before suppressing either the test result or the refusal. Q 6: Is the officer required to speak to the defense attorney during the process of administering the breath or blood test? A: No. Neither the Implied Consent statute nor the court rules force officers to interrupt their investigation to allow the defense to interview them about the case. Some officers make sure defendants are actually calling an attorney (not a girlfriend/brother) by placing the call to the attorney. Once connected, the officer simply relays the fact you have a DUI defendant wishing to consult on the issue of the Implied Consent Warning and the breath/blood test. You can set a standard time limit at that time, as some do, and let the attorney know You have 15 minutes to confer, I will give you a 5 minute warning. Hand the phone to the defendant and get to where you can watch, but not hear. Give the warning, and at the conclusion of the time, let them know time is up and end the call, or elect to extend briefly. Be professional with defense, document it all!

6 **SAVE THE DATE** WA State Impaired Driving Training Symposium May 3 5, 2012 (noon Thursday noon Saturday) BELLEVUE, WA Following the success of the TSRP Regional Impaired Driving Academies, the TSRP program will once again join forces with the DRE, Breath Test, SFST and Ignition Interlock programs to create a brand new training model. This year, the TSRP training opportunities will be combined into this single, statewide Impaired Driving conference. This will be an energy-packed, hands-on Impaired Driving training with tracks for law enforcement officers, prosecutors and judges. This is not your basic conference it will be a practical skills training with sessions geared toward everyone from the newest officers and prosecutors, to those with 20 years experience! Sessions will be taught by subject matter experts from across the state and country. Topics will include Motions Practice for Prosecutors, Mock Trial, Old School DUI for Officers, case law updates, SFST, and many more. Registration fees will be nominal. For those over 50 miles from Bellevue, WA, lodging scholarships are available for qualified prosecutors and law enforcement through the TSRP grant for DUI and felony vehicular crimes prosecutors, as well as law enforcement in Traffic Units, DREs, and patrol officers with a letter of recommendation from a supervisor or Target Zero Manager demonstrating a commitment or interest in DUI enforcement. For Training Requests or Technical Assistance on Impaired Driving Issues, please contact the TSRPs: tsrp@duiprosecutor.com Courtney Popp Courtney.Popp@wsp.wa.gov X24134 Moses Garcia Moses.Garcia@wsp.wa.gov X24117 Eastern WA Target Zero Prosecutor Stephanie Olsen sjolsen@spokanecounty.org 14 CLE credits expected. Traffic Safety Resource Prosecutors Washington State Patrol The TSRP program is a joint project funded by the Washington Traffic Safety Commission, the National Association of Prosecution Coordinators, and the National Highway Traffic Safety Administration. 811 E Roanoke St Seattle, WA Ph: Fax: tsrp@duiprosecutor.com