DUI & DWIClients’ ChoiceAward 2012-2018

When a Cadet is Involved in a DUI Stop, the Game Changes

When a Cadet is Involved in a DUI Stop, the Game Changes

We all have to start somewhere when we're new on a job. But what happens when a cadet in training is handling your DUI stop and possible arrest? DUI attorney Jonathan Rands talks with KGMI's Dillon Honcoop about the situation and how he approaches trials when there's a cadet involved.


Episode Transcript

Announcer
The Legal Docket with Dillon Honcoop on KGMI 790 and kgmi.com

Dillon
How would you like to be guinea pig? How would you like to be used as an object for training, especially if your legal future is on the line? Jonathan Rands, local DUI attorney with us in studio this morning, this is The Legal Docket, Dillon Honcoop with you here on KGMI News Talk 790. And Jonathan, you were just telling me, we've been talking for quite awhile about how the state patrol needs more troopers. To do that of course, there's a process of training. And you were telling me just before we came on the air here, and I want to talk about the new troopers that are coming, the situation caused by not having enough troopers on the road, what does that really mean? You were say that they use some actual DUI cases as guinea pigs for cadets in training to try out their practice — practice their field sobriety techniques. How does this work? What do they do?

Jonathan
Short answer is, yes. I think in any career, you've got to start somewhere. There's always a training process.

Dillon
Right.

Jonathan
Right? Part of the actual state patrol curriculum, it culminates in so many hours at the end of the academy training — practical training — or road work, or road training. This happens generally twice a year, I've seen. I forget how many hours it is, but I think it's a couple hundred hours that a cadet needs to have on the road. I first ran into this a couple of years ago when it became — it created a legal argument for an arrest being unlawful because a cadet in training is not a graduated cadet, a graduated cadet into a full-fledged trooper. They call them trooper cadets; they call them cadets because they have not been sworn in. They actually have a certificate that they're issued that allows them, it specifically says that it allows them to act in full capacity as a trooper with full powers and authority on their way to training. So anybody that's commuting to the academy, or on their way home — when they encounter an emergency situation. So when I looked at that, I thought, if you need special permission to have full authority, that means you don't have full authority, right? I mean that just stands to reason —

Dillon
They've been given a waiver basically, a temporary —

Jonathan
Right, I think the thought process ... I think you've got a little more training than the average person, and you can have full powers on an emergency basis, but really a cadet become a full-fledge trooper when training and the academy is done. And field training, field in air quotes meaning out on the road, is still part of the curriculum. You have to satisfactorily pass your field training and get the requisite scores in all facets of the job before you can go on and become a full trooper. So it's an interesting scenario because, it kind of brought this motion before — I've taken it all the way, where I realized that a cadet was on the road and making arrests, and I was reading reports and my clients were essentially arrested by someone in training. But when you look at the statute for the emergency powers, it stood to reason that, where's the authority when you're in training to say to somebody, you're under arrest? I'm placing you under arrest for suspicion of DUI. To sign off on that citation, which is a charging document after you've decided to arrest them, process them, and then charge them of DUI. They're given temporary ticket books because their training isn't done. When I say ticket books, I mean the handwritten tickets.

Dillon
Yep.

Jonathan
In this day in age, the troopers that are full-fledged troopers they have been issued a car, they've been issued a badge and the license plate and badge number are one and the same and all their equipment. So they're onboard computers, they have their identification in them and they generate charging documents for DUI, in this particular scenario we're talking about. And the document is printed from the printer from the car, and it's in electronic filing, so you hit enter and it sends that filing off to court and that's how charges get filed now. 

But the old way of doing it when you're a cadet and you don't have full-status yet, is you write out a ticket. It's a ticket book, it's starts with a "C"; it stands for Criminal Citation vs and "I". And that's just another example of not being a full-fledged trooper. So what we're seeing now, or what we've seen recently is, I've read several reports from arrests in May and June, where, well when you're our on the road and you're a cadet, the way it works is that you're issued a car, temporarily contingent upon your graduation, and you're issued an FTO, which stands for Field Training Officer. Field Training Officer is a full-fledged trooper that has so many hours under his or her belt, and I think they've actually have to undergo a particular course, but it's something they can certainly do within a couple years of becoming troopers on their own, and they become trainees, and so they're FTO. FTO's are responsible for really just grading the cadet during the proficiency of their shift, on their proficiency during the shift. I always take it upon myself to ask for those notes from the field training officers to see how well the person's performing. And it's funny, sometimes I'll get a series of clients who are arrested by the same cadet over say one, two, and three days. And the difference between the investigation and the field training notes on arrest number 1 and arrest number 3 are interesting.

Dillon
Yeah, because they're practicing. 

Jonathan
Yes!

Dillon
They're trying to correct their mistakes. But on the flip side of that, what if I'm the person who's accused, what if I'm the person under suspicion of driving under the influence and it's the cadet first try at me, again I understand that everybody's got to start somewhere, but if I'm going to have brain surgery, I don't want the surgeon to say, oh by the way, this is the first time I've ever done it.

Jonathan
Which is also why people don't like to necessarily hire brand new lawyers. It works on the flip side, right?

Dillon
Yeah, true.

Jonathan
But from a tax-payers perspective, what you see is these cadets are out and looking for experience. You're brand new in a job; you're gung-ho; you want to do what you want to do. You're listening to the airwaves, and I've read several reports now where one senior officer, or trooper, will make a stop, and he'll call out shortly after that stop that it's a possible DUI. Sometimes that trooper's already engaged in the first of three field sobriety tests. And then the cadet will hear this, and whatever they're doing, finish what they're doing and drive to that location if it's close. And in downtown Bellingham, things aren't too far away. And then the police report or the video will pick up with the cadet walking over and saying, hey, do you need any help? And the senior officer is only too pleased to hand this person off. And what you have here, is you've got the senior officer making the stop, and then abandoning that investigation, if you will, and handing it off to a cadet who's also being observed by another officer. So we've got three officers on scene with potentially one person who typically only needs one person to investigate. So there's that aspect of it in terms of resources being allocated.

Dillon
But also the facts of the case. I mean, like the old game of telephone—the more people that pass on, you know, this person, this cadet that's training wasn't there at the beginning of the call.

Jonathan
Uh-huh

Dillon
So they're relying on the notes, I guess, from someone else, things that were observed by a different person. They're new, so depending on how they're interpreting, or what they know, they may be seeing different things, or understanding it differently. Then they have someone supervising them, which is, again a third person here in the mix. To me that could make things pretty confusing.

Jonathan
Well, more importantly, I think is you're not approaching a situation from a blank slate perspective. You're a cadet who hears that there's a possible DUI stop. So what are you thinking? Great, I'm going to go and investigate a possible DUI. You get out, you have a brief conversation with the person who made the stop. That person says, yeah this is why I stopped them; I smell the odor of alcohol; I see bloodshot, watery eyes, flushed face and I'm not seeing great balance. Ok now the cadet takes over. Generally, I've seen them start from the beginning again. I know you already did this test with this person, but I'd like to do it again. Are you willing to do that? It's usually one of the field sobriety tests. And so you come into a situation not looking at it going, alright this is what I'm seeing. You're taking over a situation; you're taking over somebody's observations and you're following through with them.

Similarly with the field training officer, you get somebody who's now watching two different conversations, overhearing two conversations, moving over to just watching the cadet do one thing. And it's not unusual, I've seen officers also make arrests based upon the initial officer's observations. For instance, what if the person says, and I've read this before, Mr. John Smith driver, this trooper's going to take things over. We're going to do field sobriety tests with him. You've already done one with me. And the person says, no. And then what happens? Well, the cadet probably will say, I'm placing you under arrest for suspicion of DUI. But they haven't had any interaction with them yet. They're basically making an arrest based upon what this other person —

Dillon
What someone else said.

Jonathan
Right. Which makes for a very interesting motion's practice and trials, in terms of what caused you to arrest this person. You know what the answer generally is? Based on my training and experience.... You don't have any experience! So you could base it on your training. You could base it on an order or the observations of a senior officer, but don't say training and experience.

Dillon
I'm curious to talk about what happens when something like this, a case like this, makes it into the courts. We've got to take a quick time out. We're talking about what happens when you suddenly and unwittingly become, not only someone who's accused of driving under the influence, but in some  cases a guinea pig for someone who's training on how to do these arrests and investigations. A brand new state trooper, for instance in this case. And we'll talk more about why that's an issue with Washington State right now. Jonathan Rands our guest here on The Legal Docket. Local DUI defense attorney. 360 3068136 is his phone number. His website is jrandslaw.com. Rands is spelled r-a-n-d-s-, very simple his last name, Rand. jrandslaw, all one word, dot com and 360 306 8136. Stick with us. We'll come back and continue this conversation straight ahead.

Announcer
The Legal Docket with Dillon Honcoop

-- ad break --

Dillon
Well, it's one thing to be arrested, technically the term is on suspicion of driving under the influence. Those are the kinds of people you defend, right?  Jonathan Rands, our guest in studio this half hour.

Jonathan
Accused citizens, that's how I refer to them.

Dillon
Accused citizens. People often say, well they got arrested for drunk driving. No, technically that's not accurate, right?

Jonathan
They're arrested for suspicion of DUI.

Dillon
There's a difference, and that's why there's a court system and that has to be proven before someone is actually convicted of said crime in this case. What about, this is what we've been talking about, what about a trainee? How do officers learn how to do this whole thing where they pull someone over; where they give them field sobriety tests; where they make this decision that we talk about so often when we talk to you, this decision of ok, I'm going to arrest this person. Take them back downtown and have them use the breath machine there. Possibly book them into jail, all this. And the thing that you brought up is some people end up being  guinea pigs. They are arrested or stopped, I guess first. Detained and investigated. And sometimes people who are in-training cadets who are working to become troopers are brought in to take on someone's case as a guinea pig, as a training, as a practice round.

Jonathan
As experience, is what I would say.

Dillon
Experience for them.

Jonathan
To gain experience, yeah.

Dillon
Which of course ... and I understand the need for that. And I support them doing that, I guess, but what does that mean for the case? And this is what I was saying, by the way I want to get to, before I run out of time. Humane's Society, a neat event — a golf event — and I want you to tell us about that in just a little bit. But what happens when you get one of these cases, and you see the facts and you see the reports, and you see ah, this is someone in training who arrested my client.

Jonathan
You know, before anyone even formally hires me, I generally have an idea if it's going to be a cadet case or not because I've been doing this long enough and I've been doing it in this community long enough that I pretty much got troopers' names certainly memorized, and I've dealt with almost ever single one of them, but more importantly, because hand writing is not always legible, I've got badge numbers fairly well memorized in terms which corresponds to which officer. And whenever a breath test ticket is printed, the operator's name is on that. So usually when I get a phone call on a weekend, or if I get a phone call during the week and I'm chatting with somebody, one of the things I always ask them is, hey do you have the breath test ticket in front of you? Yes, I do, or no, I don't, and go find it. What's the name of the operator? And as soon as I don't recognize the operator's name, and I know what month we're in — fall or spring, that's usually when training happens, or sometimes there's a summer session. I know right away, the next question out of my mouth is, was there a second officer on scene? Yeah, there was a second officer there, is usually the answer. And did the one officer seem like he may not have known what he was — wasn't really comfortable, not not know what he was doing, but not really comfortable? Yeah, it was pretty clear that one guy was really watching another guy. Ok. Now I know right away that I'm dealing with a cadet case. And that always sets the case up to be a little bit more unique. It's a little bit unique in a couple of ways. Sometimes they're easier cases, sometimes they're harder cases. They're harder cases because depending on who the field training officer is, the veteran field training officers, the ones that have been doing this a really long time, they will frequently write a report or will frequently write a simultaneous narrative that will have they're own impressions of what they saw. 

Dillon
So basically you'd have two police reports for the same arrest.

Jonathan
Correct. The newer field training officers will simply say what happened and that they say a particular violation and then they basically watched the cadet do the cadet's job. And so the harder cases when you have a veteran officer writing a report that say this cadet did xyz, I field trained, I watched. They're not really supposed to intervene per say unless something really goes sideways. Their job is to really grade and make sure the cadet is doing things according to policy, according to their training, according to the laws and constitution. But it's really hard when you get, for lack of a better word, a rookie saying this is what I've got. And you have a veteran saying, I saw exactly the same things and absolutely this person made the right decision to arrest. So that's what makes it harder — it's two against one.

It also makes it harder because a lot of the times cadets, once they graduate, don't necessarily come back to the community they train in. Now that makes it difficult for the State if there isn't a field training officer who's got a solid report because if that cadet goes off to Asotin County, which is in the far southern east corner, and that's a 6-7 hour trip back for a trial, well prosecutors on a first offense .09 / 1.0 case breath test may not want to invest the resources to bring that person here if there's not a strong backup report. Or they might not bring that person in at all. Because there's nothing wrong with the cadet staying where they're at, and in a trial having a veteran officer say, I was field training this particular person, I saw him stop for this reason. I saw him doing this. I was close enough to the person during the interaction. I smelled the odor of alcohol. I saw these things, and I watched close enough that these tests were done and I believe that the officer did them correctly and the officer saw these things. Or even if the officer didn't see these things —

Dillon
When you say officer, you mean the cadet?

Jonathan
Yeah sorry, the cadet saw these things, and the field training officer says, maybe he's just writing his own report as to what his impressions were. So in that capacity it can be extremely difficult to resolve those types of cases, or even have a winnable case in trial. It becomes a little easier when everything is on the cadet's shoulders. And I think that that is the way the training is generally designed is to make sure that the cadet does the lion share of the load and learns.

Dillon
That's the real experience.

Jonathan
Correct, yeah. And when you get one of those cases, and let's say it's a second offense for a person so the ability to plea bargain isn't necessarily there and it's a high breath test and the State's probably going to take this case to trial because there's no reason not to. That's when the trial really get interesting because usually the trial will be 6 ,7, 8, 9 months down the road, the cadet who is now 6, 7, 8, 9 maybe even a year of experience down the road will come in and testify based on that experience, unless you try and limit them to living in the moment at that particular point. You know the greatest weapon that they have in trial, whether it's a trooper or a city officer, is to start answering a question based on my training and experience. And they always spend a lot of time being asked about their training and experience. And of course the longer you've been doing something the greater your experience. And so —

Dillon
And a cadet has no experience, understandably, but still, the fact remains.

Jonathan
Right. It's always fun on cross examination where they're finished with the prosecutors, and say well, what did you do. Well, based on my training and experience, I decided that this person was possibly under the influence and I arrested them. Alright, no further questions or something. So always like to start with, let's talk about your training and experience on day three.

Dillon
Well, yeah. I mean, ok, you could say that's a little harsh, but it's the truth, and everybody deserves a fair shake if they are stopped and accused of this crime.

Jonathan
And here's the thing about DUI cases, whether a person gives a breath sample or doesn't give a breath sample, that arrest is logged into the breath testing machine. So there's no hiding how many arrests, or lack of arrests, this particular cadet made on this particular day. I'd just go into the breath testing machine database, I'll start in January and I'll finish whenever, and I'll look where I first see this cadet's name as an operator, and I'll go, oh, that's my client's name and date of birth next to it. Or there's three of this cadet's name and then my client's breath test. So I have a pretty good idea of how much — 

Dillon
Of how much experience there is, at least when the numbers are low.

Jonathan
Another thing I like to do that a lot of attorneys don't do or haven't thought of, I think, is you're entitled to the assessment of that cadet's job that night. 

Dillon
So if he got a D. You got a D+ on your performance that night, but here now this case is at trial. What does that say about the case.

Jonathan
So what I can do is ask for the field training officer's notes, and I get them and I usually end up having to sign off on basically and agreement that I won't use that material for anything outside of the case. It's a protective order. And I think it makes sense, because I'm allowed to asses the credibility of the accuser, on this particular case it would be a cadet, and if the cadet had subpar marks, how do you base something on your training or experience when somebody who's grading you says D / D+ / C / C+.

Dillon
Yeah, exactly. And anything less than an A, well, what's going on there? Jonathan Rands, local DUI attorney. Thanks for giving us the background on this and we're basically out of time, but real quickly, you were part of a cool event here recently.

Jonathan
Yeah, the Whatcom County Humane Society golf tournament that I know Cascade Radio is a big supporter of, as am I. Fun times. I didn't see you golfing, but I saw a couple of the other guys.

Dillon
No, they keep me away from the likes because it gets really ugly really fast. I get angry and just no, it's bad. I should just stay here and stay working while other people go golfing.

Jonathan
Well, you could just drive the golf cart or something.

Dillon
That's true. I'm a pretty good driver. My wife would disagree.

Jonathan
Driver of the carts, not as as in golf driver?

Dillon
Exactly. Jonathan Rands, thank you for the work and the effort and the assistance you give to organizations like that in the community with your position there with your business. And Jonathan Rands, he's a local DUI attorney and his business is in Fairhaven. He has a presence online as well — jrandslaw.com. Jonathan's last name is spelled r-a-n-d-s, so j, just the letter j-r-a-n-d-s, law l-a-w, jrandslaw.com. Check that out and the phone number, as I mentioned a little bit earlier, 360 306 8136 to reach Jonathan. Again 360 306 8136. Thanks for being here this morning.

Jonathan
Thanks for having me. And by the way, I'm not a great golfer. I golf once a year.


Call now for your free consultation (360) 306-8136

“Being charged with a DUI is scary and often makes you feel alone against the unknown. Jonathan made himself available after hours to have a 'consultation' of sorts, to meet with me and hear my story, at no cost or commitment.”
Amy
A DUI Client, via Avvo