The Prosecutor, September-October 2015, Volume 45, No. 5

New training tools for local prosecutors

2015

I love driving all across Texas teaching prosecutors and police all I can about investigating and prosecuting DWI—no joke, I really do. But despite my best efforts, I am not sure it is enough.
    Many prosecutors supplement my work by training their local peace officers between my visits, which is a great idea. There are counties I miss and officers or prosecutors who can’t attend, and I get requests all the time to help local prosecutors talk about the issues I present weekly all over the state. Years ago, TDCAA created a DWI Resources page at www.tdcaa.com/dwi to address this need (if you haven’t checked it out, go do it right now—it’s chock-full of helpful info), but there are some common issues for which prosecutors wanted even more resources.
    Well, I am very glad to announce they are here! After months of work, four new training videos are now online for you to watch, provide to officers, and add to your local presentations. They cover three topics—breath testing, officers’ courtroom testimony, and roadside investigations—that prosecutors have long requested, and now, at long last, they are ready. Here’s a little background on each topic.

Breath-Testing in Texas
Did you know that for the first time in a very long while Texas is getting a new breath-testing instrument in 2015? The Intoxilizer 5000 is being replaced by the Intoxilizer 9000. But don’t panic! Our first video addresses the new instrument and breath testing in general. The science in both the 5000 and the 9000 is the same, but the interface and appearance on the new version is vastly improved. It also provides data in a much more usable form, and it looks much cooler! (Think of the 9000 as the slickest new smartphone and the 5000 like a serviceable flip-phone.)
    I have talked extensively about blood testing over the last 11 years (scary, I know, but I have had this job that long). I have championed blood search warrants, promoted no-refusal initiatives, and responded to greater awareness of drugged driving, so talking about blood testing often was necessary and inevitable. But last year there were still 40,000–50,000 breath tests in Texas. Breath testing is a big part of DWI investigation and prosecution; it is essential to getting the job done and essential for prosecutors to understand. Being an old guy, I cut my teeth on breath-test cases, but many of today’s prosecutors have far less experience with breath. Plus, we add new prosecutors to our ranks faster than we can hold schools to teach them all they need to know.
    This video employs the State’s leading scientific experts to explain the new instrument and breath testing in general. Mack Cowan and his team of scientists at the Texas Breath Testing Lab at the Texas Department of Public Safety discuss not only the history and science behind the testing but also the incredible quality control that goes into every breath test result. Accreditation, audits, certification, and verification exist for every person in the system, as well as for the instrument and the calibration verification solutions (reference samples). While the instrument has become simpler to operate, the quality control has become much more exacting and standardized. Like our blood labs, breath-test results have the same quality in every test, in every jurisdiction, across the state.
    This video also includes well-done footage of an actual test run on the Intoxilizer 9000 with excellent voiceover explanation by Meda Nix, the technical supervisor in the Travis County region. Would you like to see an actual breath test on the new instrument before you have to present it in court? Now you can—while sitting at your desk.
    My hope is that prosecutors who have a breath-test case coming up can watch this video and improve their trial performance. I also hope they can use it to prepare themselves and their local technical supervisors for courtroom presentations. And prosecutors should be able to use this video for public-speaking opportunities to start discussions with their constituents at local luncheons and community outreach. And like all of the videos (more about the others below), this is a high-grade production created by the same very talented people who helped bring three DWI Summits to Texas. It is not a fly-by-night, handi-cam production. Go to our website at www.tdcaa.com/dwi and take a look.
Basic and Intermediate Courtroom Testimony for Officers
Have you ever wished you could sit down with an officer and get a 30-minute tutorial from me on how to testify in court? Do you ever wish you could show officers how silly they will look if they don’t implement your simple instructions on how to dress, how to testify, and how to keep their cool on cross? Well, your wishes (even if you first had them only when you read this paragraph) are granted.
    We created two videos with the help of Detective Richard Mabe of the Austin Police Department (he’s one of the best DWI officers in Texas and my longtime teaching partner) and the folks at the Williamson County Attorney’s Office. The videos include actual courtroom footage of an officer messing up (on his dress, on his demeanor, and on cross), then an example of him doing everything right, all narrated by my explanations. These videos don’t just tell officers what to do in court: They show them. You’ll laugh and wince when you see the “bad” portions—and then you’ll cheer when you see the officer get it right.
    In addition there is much for prosecutors to learn here, including how to present testimony and roadside video in court. More importantly, the videos demonstrate a number of things we must make sure officers know before we put them on the stand. You can’t have prosecuted long before you see an officer make a bad mistake in the courtroom. Yet surprisingly, we seldom think it is our job to ensure the officer does not make the same mistake the next time he testifies. (If the same dog bites you twice, it is not just the dog’s fault.) These videos can ease prosecutors into these very necessary (and very difficult) post-trial discussions.
    My hope is that prosecutors will use these videos in lots of different ways:  by hosting their own local trainings, during pre-trial preparation—you could even talk your agencies into routinely adding them to role-call instruction or academies. Lab and breath-test results tell us with no doubt that officers are arresting the right folks for DWI, but breakdowns in the courtroom are often to blame for juries not returning guilty verdicts. I really believe these training videos will be a great tool in addressing this very common challenge.

Effective Roadside ­Investigation through Conversation
I think in every DWI class I’ve ever taught, I have begged officers to slow down during the roadside stop and do more investigation before they ask the driver to leave the car to perform Standardized Field Sobriety Tests. Many of you have heard my discussion of “Mom’s sobriety test” or learned about “the five best questions you can ask at the window.” But after years of begging, I decided I needed to show officers—not just tell them—why it is important to slow down at the stop and have a longer, friendlier conversation with a possibly impaired driver.
    Much like in the courtroom videos I discussed earlier, this video lets officers see how badly this part of the investigation is often done. In it, the officer (Detective Mike Jennings of the Austin Police Department—my longtime friend and someone who trains with me on the road) pulls over a possibly impaired driver (and does it poorly), and then we cut to the studio where I break down what he could do to improve the “person contact” phase of the DWI investigation. Then we show Officer Jennings performing this part of the investigation better. (The best training always involves showing and telling.) All of the bad examples we show are things that I—and most prosecutors—have actually seen when we’ve sat down to watch the video of the roadside stop.
    I have the highest hope for this video: that everyone who trains officers on DWI will use it. The National Highway Traffic Safety Administration and the traffic community have done a great job in the last couple of decades in pushing the SFSTs—a great tool that has produced great results—but one unintended consequence is that officers have abandoned a tool that has worked ever since the first cop shouted “Halt—who goes there?” And it still works for every officer who has ever effectively questioned a suspect: That magical tool is simple, friendly conversation—instead of an abrupt confrontation—with a citizen driver. Conversation (rather than confrontation) results in a much slower walk to the back of the squad car, but it nets a whole lot more evidence than a quick and curt interaction with an impaired driver. In this new training video, this art of conversation is not only discussed, but more importantly it is demonstrated.

Final thoughts
The last 11 years have clearly taught me that peace officers desperately want to hear from prosecutors. They want to be taught and shown what they can do to improve their cases. In creating these video tools, I hope that prosecutors will use them to create far better dialogue with their local officers and constant training on how those officers can improve at the roadside as well as on the stand. I hope the videos make those tasks easier.
    I also hope to create a place where brand-new prosecutors can go for ideas and information that they would otherwise learn the hard way (by losing cases and letting impaired drivers go free). Please take a look at these new tools and make whatever use you can of them. Each video can be viewed from our website at www.tdcaa.com/dwi; each video can also be downloaded so you can keep them on your laptop or on your office’s server. Take them, use them, and make the roads safer for the people of the State of Texas.
    All of this would not have been possible without Bill Connerly, our longtime video producer and his top-notch media team; the TDCAA staff; our numerous, very talented volunteers; and funding through our TxDOT traffic safety grant and the Texas District and County Attorneys Foundation. I hope these new resources help!

Thanks to the following people at the Texas Breath Testing Lab at the Department of Public Safety in Austin: Randall Beaty, Deputy Scientific Director • Mack Cowan, Scientific Director • Heather Greco, Quality Manager • Zachary Kilborn, Technical Supervisor • Meda Nix, Technical Supervisor • Trooper Michael Nix, Lieutenant, Texas Highway Patrol • Ronald Oliver, Certified Reference Material Analyst.

Thanks to the following people from the Williamson County Attorney’s Office for all of their assistance: Bobbie Byerly, Criminal Court Legal Assistant • Rudy Gonzalez, Deputy Chief Investigator • Stephanie Greger, Criminal Court Prosecutor • Dee Hobbs, Williamson County Attorney • Brian Klas, Criminal Courts Chief • Deb Lewis, Court Coordinator for 26th District Court •  Stephanie Lloyd, Office Administrator •  Heather Parmer, Chief Intake Prosecutor • Alison Tierney, Criminal Court Legal Assistant • Warren Waterman, Criminal Court Prosecutor.

Thanks also to Detectives Michael Jennings and Richard Mabe of the Austin Police Department DWI Team and Maghan Ellington, Texas SFSTs Program Services Specialist.