DUI Arrest: Can The Judge Read The Police Report?

When a
motorist is arrested for drunk driving in Orange County, the arresting officer
will fill out a police report explaining why the officer stopped the motorist—perhaps
for a traffic violation or at a DUI checkpoint—and the details of what happened
after the stop. The DUI report gives a detailed description of the driver’s
appearance, including whether the driver smelled of alcohol, had red and watery
eyes, had any slurred speech, and had any difficulty with balance or
coordination. The report also explains how the defendant did on each of the
field sobriety tests that the driver took—if they did agree to take the
voluntary tests. The officer will also write down what the readings were on any
breath test the defendant took and whether the defendant elected to take a
blood test, breath test, or refused to take any test.

This police
report is the cornerstone of the prosecution’s case against any defendant in a
DUI case and is usually the starting point for the defendant’s Orange County
DUI defense lawyer. Both the DA and the defendant’s DUI attorney will comb the
report for any details that help them. Usually, since the reports are written
by police officers after an arrest to justify the DUI arrest, the reports are
highly unfavorable to the arrestee.

Having been
an Orange County DUI Attorney for many years, I’ve noticed that my
clients are often very agitated by their belief that the judge will read the
police report and instantly be biased against them. However, in my experience,
Orange County judges almost NEVER read the police report in a DUI arrest. Nor
do judges look at the defendant’s record of prior arrests. The reason for this
is simple; any judge who looks at the police report in a DUI case, or any
criminal case for that matter, MUST be disqualified from sitting as the trial
judge or as the preliminary hearing judge in the case. Section 1204.5 of the
California Penal Code specifically states that no trial or preliminary hearing judge
shall “read or consider any written report of any law enforcement officer or
witness of any offense any information reflecting the arrest or conviction
record of a defendant, or any affidavit of representation of any kind verbal or
written, without the defendant’s consent given in open court,…”.

Thus, the
only way a trial or preliminary hearing judge can read the police report or the
defendant’s arrest record, is if the defendant allows the judge to do it. For
this reason, almost no judges in Orange County will read the report in a DUI
case. However, as the statute says, the defendant MAY allow the judge to read
it. Sometimes, when some fact or facts in the report are actually favorable to
the client, their DUI lawyer will ask the judge to read some or all of the
report. Moreover, if the judge is not going to be the trial or prelim judge,
then the judge may read the DUI arrest report without the clients consent.
However, because DUI judges are so busy, this rarely happens.

If you have
questions regarding a DUI arrest, call The Law Offices of EJ Stopyro today at
(949) 559-5500 for a free and confidential consultation with an experienced Orange
County DUI defense attorney. You can also visit us at www.ejesquire.com.  We have offices at 32072 Camino Capistrano, 2^nd
floor, San Juan Capistrano, CA 92675 and 1901 Newport Blvd., Suite 350, Costa
Mesa, CA 92627.