In my capacity as a DUI Lawyer, I have read, in my 20-plus years, thousands upon thousands of Police Reports. Careful examination of the Police Report in any DUI case is absolutely essential to proper handling of the case. In the last number of years, however, the presence of Police in-car video has added another ingredient to the mix of things that must be reviewed by the Attorney before any plan of intelligent action can be formulated. This article will be a bit longer than most of the others in the Drunk Driving section of this blog, and therefore will be divided into 2 parts.
We live in a video world. The advent of shows like “Cops” introduced us to seeing Police in action. And if you want to take about media “bias,” how often do you see Police video of innocent people being questioned, and the let go? Short of the Rodney King video, and perhaps a few other examples of Police misconduct, all captured by third parties, by the way, we’ve essentially been trained to expect Police video to demonstrate guilt.
If you tune in to the local news, and there is Police video being run as part of any story, it almost always shows the Police arresting someone who should be arrested. DUI drivers are shown as staggering, and if there’s audio, you hear them slurring their speech, or sounding otherwise drunk.
In DUI cases, it is not uncommon for me to be asked by a new Client, before I ever even get that far, about the Police video. “Can you get it? I’d like to see it.”
In-car Police video has the potential to derail a DUI prosecution more than any other single piece of evidence. Admittedly, those examples of cases where the Police video contradicts the Officer’s written version of events aren’t very common, but for an investment of about $50, it amounts to a small price that can result in a huge payoff.
It is important to note, however, that Police are not required to have video-equipped Police cars. And even if the car has such equipment, there is no Law requiring that it be operational.
In the real world, Police video can really impact 2 major areas of a DUI arrest: The initial Traffic Stop, and the Field Sobriety Tests.
Many Traffic Stops are the result of a Police Officer encountering a car that is driving erratically. In another tip of the hat to the modern world, cell-phone callers reporting a suspected Drunken Driver have become more and more common. By Law, when the Police receive a tip about someone Driving Drunk, they must independently observe some kind of erratic of unlawful driving before they can initiate a Traffic Stop on the vehicle.
The Law requires the Police to have “Reasonable Suspicion” to pull over or otherwise investigate a suspected DUI Driver. “Probable Cause” is different than “Reasonable Suspicion,” but if you ask 100 different Lawyers and Judges to explain that difference, you’ll likely get 100 different answers.
Here’s where everyone, I think, would agree: “Reasonable Suspicion,” as it is applies to Traffic Stops, is a more liberal, watered-down version of Probable Cause. It allows the Police to stop a car with less evidence of wrongdoing than Probable Cause.
Some people think of it this way, although it is not altogether accurate: Reasonable Suspicion is reason to make a Stop, Probable Cause is reason to search after that Stop.
The hope in any case is that the Police Report says something like the Officer observed the car drift onto the right shoulder, or cross over the center line, and then a Traffic Stop was initiated, but the video clearly shows that none of that happened, and that the car was driving, by all accounts, quite normally. Do such situations occur? Absolutely. Do they occur often? No.
In theory, you’d think that Police video either would, or would NOT show what amounts to the Officer’s claimed Reasonable Suspicion to make the Stop. In practice, the picture isn’t so clear, pun intended. Sometimes, the car being followed will be too far in front of the Police car to really see whether it was weaving, or not. Other times, the video just isn’t clear enough to make things out. I’ve seen videos where the Officer claimed the offending vehicle was headed toward him, and was over the center line in the road, and the Officer did a quick U-turn to follow, only then flicking on the video. This means the reason for the Stop was not on the video.
In other cases, the video actually does show the offending vehicle weaving, or otherwise driving erratically
The point here is that in-car video is NOT the holy grail of Defense tactics. It can be, but more often than not, falls far short of that mythical status.
In some cases, even if there is video, it isn’t going to matter. This means that if the Police are responding to an accident, and DUI Driver Don has rolled his SUV into a ditch, any in-car video isn’t going to help Don as far as the reason for the Police response. If DUI Don is passed out behind the wheel, and the Police have to extract him from his vehicle, and take him to the hospital for examination or treatment, then there will have been no Field Sobriety Tests, and any video that exists is not going to be of any help to Don.
In those cases where the in-car video does show the offending vehicle weaving, or crossing the center line, the Client at least knows that there is essentially no likelihood of successfully challenging the Traffic Stop. This at least removes any doubt about the strength of the Prosecutor’s case.
In part 2 of this article, we’ll continue examining the role of in-car Police video in a DUI case, and move from the Traffic Stop to the Field Sobriety Tests, and beyond.