July 01, 2011

I Couldn't Get Him To Shut Up

AUTHOR’S NOTE: Welcome to the first post in our Literature Corner. I can’t guarantee that we’ll post a story every Saturday, but we will do it as regularly as possible.

The stories about my police experience are true. I have changed the names to avoid embarrassing anyone, and in that spirit, I have occasionally slightly altered a detail or two, but they’re presented almost exactly as they occurred.

The first story is about something very common for police officers: a DUI arrest. Police officers will tell you that a large part of their business is related to the use and abuse of alcohol. Sometimes drunk drivers are pretty funny. More often, they’re stupid, smelly, dangerous and sometimes, deadly. This story is about one of the funny ones that by the grace of God. somehow missed killing himself and a variety of others.

I Couldn’t Get Him To Shut Up

I finally found the guy about 20 minutes after I got the call of a drunk driver. The Dispatcher told me that the drunk was being followed by an off duty volunteer fireman who first spotted the drunk driving on the wrong side of the road. Better yet, it was the middle of the afternoon. Most DUI arrests take place at night. Anyone this drunk during the day had to be a serious alcoholic, very, very unlucky, or both.

The fireman had a portable radio and was reporting his position as he followed the drunk, who was doing his best to try to hit everything in sight, and that was the problem. Not the fireman, not even necessarily the drunk, but the dispatchers, who were relaying the fireman’s directions at least five minutes late.

I showed up at the “Waterin’ Hole,” a biker bar, where Dispatch told me the drunk was stopped in the parking lot. There was no one there but a few bikers lazily sipping beer on the patio. They told me that they saw the drunk, being followed by a guy in a red pickup, but they were heading south at least five minutes earlier!

I told Dispatch that their information was behind reality, but they never got it right. I ended up racing here and there, only to find no one present when I arrived. Finally, I got a break. The drunk parked in front of a house in a residential neighborhood and was trying to get in. The off duty fireman blocked the drunk’s car with his pickup so he couldn’t take off.

When I finally arrived, I was more than a little dismayed to learn from the fireman that they had been there at least ten minutes. He told me it was a miracle the drunk hadn’t hit anything or anybody. As I watched the drunk I apologized and explained why I was so tardy.

The drunk driver was Jim Reinhart. He was 26, a sales rep. for a local company, and about 5’6” with a small build. He was profoundly drunk. Reinhart was on the porch of a small home, stumbling and swaying and clumsily trying to pull open the locked door.

I approached him and smiled. “Hey there Sir; how are you doing?” He didn’t acknowledge me, but continued to clumsily jerk on the doorknob. “Sir? Police officer (as if my uniform wouldn’t make that obvious)! What are you doing?” Again no response. “Sir! Is this your home? Do you live here?”

He slowly lifted his head--as though it was very heavy--and mumbled something unintelligible. “What was that? Is this where you live Sir?”

“ house...” and his voice trailed off to nothing. He stared blankly. His eyes were watering and glassy. He was broadly swaying in irregular circles. Even though I was about six feet from him, I could easily smell the beer he had been drinking.

“OK. May I see your driver’s license please Sir?” He tried to reach into his left rear jean pocket with his right hand and began to turn circles like a tail-chasing dog. After a couple rotations I was afraid he’d fall off the porch and hurt himself, so I stopped him and told him that his wallet was in his right pocket. He grinned stupidly and jerked it out, accidentally zinging it past my left ear and onto the lawn behind me.

“Whoaaaa,” he said, and stumbled toward me. I stepped aside and let him continue. It’s always a good idea to let drunk drivers demonstrate just how drunk they are. He stopped in front of the wallet and began, in excruciating slow motion, to reach for it, but he only bent forward at the waist, keeping his legs rigidly straight. When he leaned too far forward, he toppled clumsily over onto the grass and began laughing uncontrollably.

The fireman and I couldn’t help laughing along. “OK Sir, what’s your name?”

“I’m Jim!” He exclaimed, laughing merrily.

“OK Jim, how about that license?” He took just about everything out of his wallet and began to drop it all around him. He handled and looked at his license and dropped it at least three times, fumbling with other cards and papers. I picked it up and read his address. “2119 Lakeview. Is that your address Jim?”

“Yup!” Jim laughed.

“But Jim, this house is 3204 Maple.” He just looked stupidly at me. “OK Jim, there are a few little things I’d like you to do for me. OK?”

Jim was still laughing as I helped him up. “OK” he said, slurring badly.

It was time for field sobriety “tests.” Most people have no idea what they are, but they think they’re purposely difficult so that the police can arrest everyone in sight, as in Steve Martin’s “The Man With Two Brains.” Stopped by the Swedish Police, Martin does a series of exercises such as walking on his hands and hopping on one leg while juggling and singing at the same time. Hilarious, but not quite right.

Words are important. I always called them “maneuvers” or “exercises,” never tests. Defense attorneys actually buy books on how to defend drunk drivers. One favorite defense trick is to have an officer go over each part of each exercise and then break it up into fractions and ask, “so Officer, my client did four out of five parts of the first test correctly, didn’t he? Wouldn’t that be 80% accuracy, and wouldn’t that be a passing grade on any test, anywhere?”

This usually leaves hapless officers sputtering and is pretty convincing to a jury. So I never use the word “tests,” and if a defense attorney tries that old trick, I explain that I’m asking their client to do simple maneuvers or exercises that any sober person can easily do, not to rack up a score as with a test, but to have the maximum chance to be fair to their client by observing as much of their behavior as I reasonably can. That has the advantage of being true, and juries like it.

We only got through three of them; I usually have drunks do five. First I asked Jim to walk on an imaginary straight line on the sidewalk. He was to walk five steps away from me, touching heel to toe on each step, turn while staying on the line, and walk back five more steps and stop. I demonstrated it for him, exactly as I wanted him to do it. “OK Jim; think you can do that one?”

“Sure” Jim said and started off. He was literally all over the sidewalk, tripping, nearly falling, and so unsteady I had to stop him after a few steps out of fear he’d fall and hurt himself. He didn’t come close to doing as I asked.

Next, I asked him to touch the tips of his fingers to the tip of his thumb, from his first to little fingers in order, and count “1, 2, 3, 4, 4, 3, 2, 1” as he touched. I demonstrated exactly what I wanted him to do and told him to start. He held up his right hand and stared at it for about a minute, acting as if he had never seen it before. He eventually stabbed jerkily at his fingers with his thumb, mumbling random numbers, and never making a solid touch. Suddenly, with no warning at all, he lost his balance and fell over backward, flat on his back on the lawn, just like one of those models in the Lipton Tea commercials, still trying to touch his fingers to his thumb on the way down. I was worried that he was hurt, but he burst into laughter again. He was still having a great time!

Finally, I asked him to count upwards as far as he could by threes, demonstrating to 12. That was all, just counting, nothing else.

He giggled and began, slowly, clumsily moving his fingers as he spoke as if counting on them. “Three....three...five, two, seven, three...three...nine, twelve, two...”

That was more than enough evidence, particularly since the fireman was watching too, so I stopped Jim. He was just delighted to be arrested and jabbered happily as I handcuffed him and helped him into the back of my car.

The fireman’s story was great stuff. He told me that he was driving home after an errand in town when he spotted Jim coming toward him fully on the wrong side of the road--on the sidewalk! Oh, that was good. That observaton alone made it unlikely that the case would go to trial. People just love firemen, and no defense attorney in his right mind would want a jury to hear that. It was going to be plea bargain time.

The fireman realized that Jim was major league dangerous, and as he had his fire radio with him, decided to follow him. Jim was all over the road, nearly hitting several cars head on, and was traveling from 10 to 60 MPH through residential neighborhoods. He even spent some time in a ditch, motoring merrily along for several hundred yards. He ended up following Jim for more than five miles until Jim finally stopped and I eventually showed up.

FAST-FORWARD TWO MONTHS. THE SCENE: Jim’s preliminary hearing. Defense attorneys will usually waive the preliminary if they’re planning a plea bargain, but some do it anyway, hoping to find something they might use at a trial.

“And did you have a conversation while you were on the way to the jail with the defendant, Officer?” The prosecutor was leading me through the case. We already covered the chase and exercises.

“Yes, I did Sir.”

“What was that conversation?”

“I asked if he’d like me to call someone to get his car. He provided the name of a relative who did eventually take it.”

“And what else did you discuss?”

“As we began to drive to the Jail, Mr. Reinhart told me that he was ‘drunk, drunk, drunk, drunk, drunk, drunk, drunk.’ He also said that he was ‘drunk on my butt.’ He told me that he couldn’t figure out why the road was on the left, but he finally realized he was driving on the sidewalk. He also told me that he was sorry for ‘running over that mailbox.’”

“And did he run over a mailbox?”

“Yes Sir. I retraced his path and found a smashed mailbox at 8th and Main. I found the door of the mailbox lodged in the grill of his car and paint transfer from the mailbox on the grill, bumper and undercarriage of the car.”

“Officer, for clarification, this wasn’t just a private mailbox, was it?”

“No Sir. It was a U.S. Postal Service mailbox, one of the big red and blue ones.” Jim’s defense attorney looked sick.

The prosecutor grinned. “I see. And did you notice anything else about Mr. Reinhart’s vehicle?”

“Yes. Hitting the mailbox damaged his vehicle. I found its muffler and a two foot section of exhaust pipe stuck on the smashed mailbox. The mailbox was bolted to a concrete pad.”

“What happened next?”

“Mr. Reinhart kept talking about his alcoholism. He said that he was a life long alcoholic and that he had fallen ‘off the wagon,’ and that he was going to kill himself with his drinking. He told me that he was ‘out of control.’ He said he began drinking in junior high and was an alcoholic by the time he was fifteen. He told me that he already had five DUI convictions. He said that he had at least ten beers and a quart of ‘Jim Beam’ before he left home.”

“I see. Thank you Officer. Your witness.”

“Mr. Collins?” The judge motioned for the new, inexperienced public defender to begin his questioning. Collins had a kind of sly grin on his face. He thought he had an issue; he was going to get me on Miranda.

Miranda is very misunderstood. Common knowledge, gathered from TV and the movies, suggests that if a cop fails to “Mirandize” a bad guy, the bad guy walks. Wrong. In reality, Miranda applies only in cases of custodial interrogation. If the bad guy is in custody and the police are asking questions with the hope of implicating him in a crime, they need to read his rights under the Supreme Court’s 1968 Miranda decision. If they don’t, or the bad guy refuses to talk with them and they continue anyway, they can’t use what he says against him in court. It’s no get out of jail free card; if there is other evidence, he can still be convicted. Of course, if the bad guy wants to talk or volunteers information all bets are off.

Collins thought I didn’t Mirandize, and he was right. He thought he’d be able to get Reinhart’s very damaging statements excluded at the trial that he was now happily contemplating, visions of brilliant legal maneuvering dancing in his oh-so-new litigator’s brain. Reinhart had so many misdemeanor DUI’s that this one would be a felony, and he was going to spend some real time behind bars if convicted.

Even with the overwhelming evidence against him (he took a blood test--it was more than three times the legal limit), it might be worth it to try the case instead of doing a plea bargain. Who knows? Maybe Reinhart would get lucky, draw a stupid jury, and be acquitted.

Collins went for the jugular. “Tell me Officer, did you Mirandize Mr. Reinhart before the conversation you described?”

“No Sir.”

Collins could barely control his smirk. He thought he had me for sure. All he had to do was run headlong through the door he just opened. “So when you asked him questions, he hadn’t been advised of his rights under Miranda?” He shot a knowing look at the judge.

“I didn’t ask him any questions, Sir.”

“What?! You what...?” His face turned white and his jaw dropped wide open. The judge and prosecutor were stifling laughter. Collins was confused. Was I trying to trick him? It dawned on me that he was the victim of a common attorney affliction: I Don’t Bother to Read Reports Syndrome.

Every movie prosecutor and defense attorney carefully prepares each case. They’re aware of the tiniest detail. In the real world, this doesn’t hold true. Cops and judges learn through experience that painstaking preparation and voluminous knowledge tend to be rare qualities. It was obvious that Collins had not read the report thoroughly. I did not write about giving Jim Miranda, and when he saw that missing, he thought he had me and stopped.

But wait a minute! If they don’t read the reports--the literal record of who said what and who did what to whom--won’t they tend to look kind of stupid? Absolutely! But the truth is that one DUI case is much like another, and public employees like prosecutors and public defenders are very overworked. So they sometimes merely skim a report just before walking into court, or even read it on the fly just before asking questions, right there in the courtroom. Sometimes that works; sometimes it explodes in their faces. Collins was about to be blown up, cartoon-style.

It was even worse because Collins violated, and was about to again violate, one of the cardinal rules of courtroom practice: Never ask a question of a witness in open court unless absolutely certain of the answer. Collins blew it once when he thought he was sure of my answer, but didn’t understand the case sufficiently to ask the question. Now he had to do it again. If he didn’t ask the logical follow up question, the prosecutor would, following him through the door Collins blundered into opening. Still, he tried to make the best of it.

“Officer, you did not write in your report that you read Miranda to my client. You didn’t read my client Miranda at all, did you?”

“No sir,” I replied, being careful not to grin.

“But you did ask my client questions, didn’t you?” He was beginning to think he might just pull a rabbit out of his hat.

“No Sir, I didn’t, except of course his name and things like that.”

“Well, if you didn’t ask questions, how could you have a conversation?” Even as he asked the question, the look on his face told me he just realized he shouldn’t have asked.

“It wasn’t really much of a conversation, Sir. I just couldn’t get him to shut up.”

Collins watched his brilliant defense fly out the window. His looked absolutely sick. He knew I was telling the truth and that he just walked himself right off the plank. “He started talking the minute he sat down in my car and just kept rattling on and on and on. At first, I just listened and made notes about what he was saying, but after awhile he became really annoying and I repeatedly tried to get him to stop. I told him that he’d be better off if he didn’t say anything at all. I almost begged him, but he just kept talking and talking. He was still talking as I turned him over to the jail staff.”

“No further questions, your Honor,” Collins mumbled. He looked as if he—instead of Jim--had just been sentenced to life.

The judge was smiling broadly. “Redirect?” He asked the prosecutor.

He was grinning too. “No your Honor. The State rests.”

Reinhart was bound over for trial. It was no surprise when he took a plea bargain and did a year and change in jail for his sixth DUI conviction. I never found out if that experience helped shut him up.

Posted by MikeM at July 1, 2011 08:44 PM

One of the reasons they probably could not get officers to the fireman was that they were sitting on their asses at a road block harrassing people. This is a pet peeve of mine, police seem to have no problem bothering people going about their business. I have been out on a Saturday night and almost run over twice by drunks, so I don't understand how a road block helps cops more than simply patrolling in known areas for drunk driving.

Posted by: david7134 at July 2, 2011 02:04 PM

From this tale we can learn one very important lesson, never assume. :)

Posted by: Alan Kellogg at July 2, 2011 06:38 PM


Roadblocks are far more effective in finding drunks,
who kill 20,000 and mutilate 400,000 people every year. Roadblocks are also safer for support staff. Also, the testing equipment (BATmobile), paramedics (vomit cleaners), correctional processors (prison bus drivers) & tow truck drivers (who ALWAYS offer to help when the UFC entertainment starts) are speedily available on the scene.

It's all about saving lives, not the momentary inconvenience of 'freedom fighters' on Saturday night at a DUI checkpoint.

Posted by: Buck Turgidson at July 3, 2011 08:05 AM

Plus, check points net all kinds of revenue generating items like issuing tickets for non-alcohol related items, more then they catch intoxicated drivers. It's about milking the local citizenry for extra $$$

Posted by: PMain at July 3, 2011 02:24 PM


Really? Would that include outstanding arrest warrants, suspended drivers' licenses, no required insurance and such? Do you have a source for that information, or is this a 'Travis Bickle' moment?

These poor police people can't win, they're either "sitting on their asses" or doing 'over & above'. Just like when the 'gated community' type call and complain about speeders in their neighborhood where the children play, and the police send traffic units to the area. Three days later, the same people call and complain about police harassing motoring residents in their neighborhood. (for extra $$$, of course)


Posted by: Buck Turgidson at July 3, 2011 04:55 PM

DUI road blocks are unconstitutional - there is no 'reasonable suspicion', no warrant, nothing.

But because we do it to everybody - oh, hi, judge, yes, just go on through - is IS constitutional.

Batshit crazy.

Posted by: Bill Johnson at July 5, 2011 09:49 AM

Bill Johnson,

You watch too much TV, pilgrim.

Most traffic police relish the idea of 'trophy' incarcerating an elitist, judge, prosecutor, politician, celebrities.....but it's not a perfect world. In the early 80's any vehicle with a 'rainbow' sticker, got a pass. They were not even allowed to slow & and roll down the window, as the experts were inconsistent (at the time) on how AIDS could be transmitted; hand shake, bite, open wound, tears, saliva and such. Of course, it's wasn't becoming - but that's the way it was!

I suspect you didn't see that on TV, eh?

Posted by: Buck Turgidson at July 5, 2011 11:13 AM