DUI officers may not testify that a DUI defendant was impaired under a decision rendered by the Washington Supreme Court in October of 2009. The decision, State v. King, 167 Wn.2d 324, (2009), clarifes to what extent the influential testimony of police officer on the ultimate issue in any criminal proceeding may be presented to the jury. Although the evidence in the King case was the opinion that the driver was driving “recklessly,” the rule established applies to DUIs and any case when officers testify to one of the elements of the charge. Let me quote the Supreme Court directly:
“(g)enerally, no witness may offer testimony in the form of an opinion regarding the guilt or veracity of the defendant; such testimony is unfairly prejudicial to the defendant ‘ because it ” invad[es] the exclusive province of the [jury].” ’ ” State v. Demery, 144 Wash.2d 753, 759, 30 P.3d 1278 (2001) (alterations in original) (quoting City of Seattle v. Heatley, 70 Wash.App. 573, 577, 854 P.2d 658 (1993) (quoting State v. Black, 109 Wash.2d 336, 348, 745 P.2d 12 (1987))); see also ER 608 cmt. (noting, ” drafters of the Washington rule felt that impeachment by use of opinion is too prejudicial and on a practical level is not easily subject to testing by cross examination or contradiction” ). Thus, neither a lay nor an expert witness ” may testify to his opinion as to the guilt of a defendant, whether by direct statement or inference.” Black, 109 Wash.2d at 348, 745 P.2d 12. A law enforcement officer’s opinion testimony may be especially prejudicial because the ” officer’s testimony often carries a special aura of reliability.” Kirkman, 159 Wash.2d at 928, 155 P.3d 125.”
The evidence at issue in King was the prosecutor asking Officer Starks whether he had been trained on the elements of reckless driving. Starks replied he had. The prosecutor then asked whether the officer felt King’s driving was within those elements, and Starks replied, ” I did.” King’s lawyer did not object. In closing argument the prosecutor reiterated, ” Officer Starks said here today, I thought it was dangerous and I felt it was reckless to me. Therefore, I would just ask that you convict the Defendant of reckless driving.” (See page 273.) Here is the actual testimony:
[Prosecutor]: So based on your training, experience and observations of the Defendant’s driving, did you form an opinion regarding his driving?
[Officer Starks]: Yes, I did.
[Prosecutor]: And what is that opinion?
[Officer Starks]: I felt that the entire act of what he had done was reckless in my viewpoint.
[Prosecutor]: Okay. And what … have you been trained on reckless driving … the elements of reckless driving?
[Officer Starks]: Yes.
[Prosecutor]: Okay. So you felt this was within those elements?
[Officer Starks]: I did.
[Prosecutor]: And did you issue him a criminal citation?
[Officer Starks]: I did.
[Prosecutor]: For reckless driving?
[Officer Starks]: Yes I did.
The analysis of the trial court to determine whether statements are impermissible opinion testimony, has five steps: 1) what type of witness, 2) what is the nature of the testimony, 3) what is the nature the charges, 4) what type of charges, 5) what other evidence is before the jury on that issue?
The Supreme Court ruled that the testimony above violated the rule that jury’s shall be the sole decider without undue influence or inference from witnesses on the ultimate issues of the any case – the elements of the offense. In a DUI case, the ultimate issue is the impairment of the driver so no witness may testify that a defendant was “impaired” because that is something only the jury can decide. Officers may testify about the signs and symptoms of the impairment but not their conclusion of impairment. In a DUI cases prosecutors ask officers about their special training on the issue of impairment, which creates a scientific authority surrounding the opinion. This, the Supreme Court ruled, is prohibited.