Top 10 Mistakes Made by Police in an OWI Case

1. An Invalid Investigatory Stop

A police officer must have ‘reasonable suspicion’ to stop your vehicle. ‘Reasonable suspicion’ requires a clear reason for stopping you other than mere suspicion, and, the officer must be able to support his basis for the traffic stop. Traffic violations and equipment violations are typical examples of proper investigatory stops, but other stops for conduct that does not amount to a specific traffic violation can be challenged.

If your challenge to the stop is successful, all the evidence obtained as a result of the stop is suppressed, that is, thrown out of court.  I recently had the court suppress the evidence in a 2010 Monroe County case, when the police officer activated his emergency lights (his red & blue lights) to get the attention of my client and lure him into contact with the officer.  Don’t get me wrong, a police officer can always approach a citizen and inquire of any problems.  What the officer cannot do however, is activate his emergency lights in an effort to ‘seize’ the person unless and until he has reasonable suspicion to justify that seizure.  If a policeman is exercising authority over your person – then he is seizing you – you are not free to ignore him – he must have a valid basis to exercise that authority over your vehicle or over you!

2. An Out-of-Uniform Unmarked Vehicle Stop

Off-duty police officers who are neither in uniform nor in a marked vehicle are prohibited from making traffic stops by Ind. Code § 9-30-2-2. Such a stop causes the evidence obtained therefrom to be suppressed or thrown out of court. Sam Shapiro successfully argued this case before the Indiana Supreme Court in a case entitled Miller v. State.  There may be issues about what constitutes a uniform or a ‘marked vehicle’.  Check with your attorney about the latest developments in Indiana law regarding these issues.

3. An Improper Administration of Field Sobriety Tests

The National Highway Traffic Safety Administration (NHTSA) has devised three (3) standardized field sobriety tests for citizens that the arresting officer must understand, properly administer, and properly evaluate in order for his conclusion regarding intoxication or impairment to be supported by research.

A failure to properly administer or evaluate your performance regarding a field sobriety test may invalidate the test and calls the officer’s opinion and proficiency into question. In fact, it may serve as the basis for reasonable doubt.

4. An Improper Administration of the Chemical Breath Test

The Indiana State Department of Toxicology has chosen to purchase and place into operation a breath test device called the Intoximeter Intox EC/IR II, manufactured by Intoximeters, Inc. in St. Louis, Mo.  Intoximeters, Inc. purchased National Patent Analytical Systems, Inc. in 2013.  Previous Indiana breath test equipment was the BAC Datamaster, manufactured by National Patent Analytical Systems.   Most Intoximeters were placed into service in Indiana in 2014. 

Each officer who is allowed to administer a breath test in Indiana must be properly trained and certified by the Department of Toxicology, and, must strictly follow an approved method developed by the Department of Toxicology.

Any deviation during the administration of a breath test from the APPROVED METHOD may result in suppression of the breath test result.


5. Hostile Attitude

Some officers can simply not bring themselves to be civil to suspects, defendants, or their attorneys. These ‘cowboys’ often display behavior that is unprofessional and demeaning to the entire criminal justice system. Wise-cracks during the investigation, name-calling such as ‘scumbag’, or other derogatory comments simply detract from the officer’s professionalism and the jury’s perception of the officer’s fairness.

Many of these officers resent Shapiro & Lozano or any other attorney questioning their observations, behavior, and conduct of the investigation. Some even refuse to attend depositions. They do so at their peril and at the expense of the State’s case.  At some point, prosecutors come to know which officers are trustworthy and reliable and which are not and act accordingly.

6. Unfairness and Lack of Objectivity

Some officers cannot be impartial observers and admit that a subject passed any testing administered. Often, videotapes expose the inaccuracy of these officer observations and reports.

7. Failure to Videotape

There is absolutely no excuse for the lack of a videotape of police procedures. The tape may be either in-car, at station, or both. This is the 21st Century! The Rodney King case and the recent California beating of a juvenile at a gas station are pointed reminders that a police report can be a biased, inaccurate document.  The recent 2015 shootings in Baltimore and Ferguson Mo. illustrate the trend toward requiring body cameras.  I would hope that in the not too near future, video evidence is a pre-condition of a case being brought to prosecution – the technology is just not that hard.

It only assists a professional police officer when a videotape exists to corroborate his observations. This is a no-brainer. A win-win for everyone in the system.  Protection for the public and the police in one fell swoop.

Here’s a thought – If jurors and judges punished officer reporting and lack of video documentation with adverse verdicts, it would not be long for videotape to be as widely accepted as the patrol car itself. Unfortunately, there is currently no specific legal requirement for video or audio tape, but, the lack of those items of evidence can and should certainly be brought to the jury’s attention. 

8. Failure to Document

Amazingly, some officers destroy their field notes. They will claim that a citizen engaged in certain behavior, or, that he or she failed a standard field sobriety test. Remarkably, when the officer is asked to support his report and his conclusions with specifics, he develops a case of the ‘I don’t remembers’, or, he relies on a typewritten report that was created from memory or from field notes that have since been destroyed.

Nothing in the case should ever be destroyed until the case is completed. In addition, a typed report some hours or days later is not the same as a contemporaneous field notation which, if objective and fair, more accurately documents an observation.

9. Assumption that the Case Cannot be Lost

On my way to Court to begin an OWI jury trial years ago, the Indiana State Police arresting officer pointed his finger at me in the form of a pistol, pulled the imaginary trigger after ‘shooting’ me, and blew the smoke from the barrel. This was before the voir dire, (jury selection) had begun!

Fortunately for my client and myself, the jury did not believe that a pretty uniform, a shiny badge, a cocky attitude, and an authoritative presence translated into proof beyond a reasonable doubt. Cross examination was made easy by this officer’s blustering, posturing, and prima donna performance. A ‘not guilty’ verdict went a long way toward defusing the police officer’s posturing.

Of course, after losing the trial, this same officer blamed the ‘bad’ jury or the ‘ineffective’ prosecution for the ‘not guilty’ verdict. He refused to take any responsibility or believe that anything he did could ever cause a case to be lost. Easy pickings for a good lawyer.

10. Insensitivity to the Rights of the Defendant

Many many police officers view the entire criminal justice system as nothing but a game. They resent the exercise of constitutional rights at the expense of their investigation. They laugh, joke, or are disrespectful to the suspects, the witnesses, the defendant, his attorney, and sometimes even the judge and jury.

Ironically, I have often marveled at the change of attitude and sensitivity that occurs when these very same officers find themselves or their family members in some kind of trouble. These same officers call upon me to use my knowledge, skill, and experience to exercise those same constitutional rights that they so often demean in the defense of themselves or their loved ones.

Interestingly, I have represented police officers, politicians, attorneys, doctors, judicial family members, employees of prosecutor offices, and other citizens of all backgrounds. It’s my hope that after my representation, there is a greater respect for, and appreciation of our constitutional system of criminal justice for all.

Other Common Police Errors

Click here for a list of your constitutional rights in a criminal court case.

Violation of a Citizen’s Search and Seizure Rights

Our State and federal constitution guarantee that we are to be free from unreasonable search and seizure. Sometimes officers present deceptive, misleading, or false facts to a judge in support of a warrant. Other times citizens are entrapped into behavior they would otherwise not engage in. Still others may be coerced, tricked, or deceived into giving consent to an officer to search or seize without any advisement about the right to consult with counsel prior to consent.

Believe it or not Indiana offers greater protection in some situations than our federal government.  2 examples are:  (1)  for Indiana trash searches [yes, police search your trash sometimes to inspect items regarding criminal behavior when they do not have sufficient evidence to get a search warrant – these are usually drug cases]  YOU MUST HAVE REASONABLE SUSPICION IN INDIANA before you can do a trash search.  Under federal law, typically trash is abandoned property that may be searched at will;   (2)  again, mostly in drug cases, in Indiana, if you are in custody and the police are requesting that you consent to a search, they must advise you of your right to counsel – known as a Pirtle advisement – which is not something required by federal law. 

Failure to Mirandize

In some cases, officers just make a mistake and ask questions without Mirandizing a suspect or defendant. In other cases, officers intentionally do not read Miranda in the hope that the matter will simply not come up or because they believe Miranda is not required.

Failure to Make an Attorney Available

I cannot count the number of traffic arrests I have successfully defended because the arresting officer failed to read the statute applicable to the offense and apply it to the behavior of the suspect defendant.

For example, the infraction of following too closely requires a consideration by the officer of the relative speed of the two vehicles involved, and, the interval between those vehicles. The vague claim that they looked too close to be safe will not hold water in most courts.

Failure to List Potential Witnesses and Listen to Different Sides of the Story Before the Arrest

Many times officers are too quick to arrest. They hear one side of a story, fail to ask witnesses who may be independent non-suspects and/or discount legitimate statements made by a suspect defendant who chooses to give a story. It is never an error for a citizen to proclaim his innocence. However, any specific recitation of facts which may incriminate should not be made without consultation with an attorney.


Where is the fire? What is the hurry? For example, in an OWI case an officer has 3 hours to offer as many chemical tests as he desires to a defendant. Most officers spend as little as ½ hour with a suspect defendant even when the allegation is the refusal to take a chemical test.

Failure to Follow Required Protocols

Certified chemical tests including breath or blood require police officers and prosecutors to carry follow protocal.  The failure to record night-time search warrants for example, results in suppression of the blood alcohol level result.

The prosecution failure to call certain witnesses or insure the admissibility of certain evidence can cause suppression or exclusion of such evidence by the court when it applies our Indiana Rules of Evidence.  Let Shapiro & Lozano utilize our vast experience in these areas to assist you in your case.