The Role of Police Video in a Michigan DUI Case – Part 2

In part 1 of this article, we began examining the role of in-car Police video in DUI cases. We left off after reviewing the role of in-car video right up through the Traffic Stop. In this 2nd part, we'll pick up with what typically follows in any DUI Traffic Stop, the Field Sobriety Tests. Beyond the Traffic Stop itself, in-car video can record the Field Sobriety Tests. In these cases, the audio is also important. Therefore, it shouldn't come a surprise that in any number of these videos I've obtained, there was no audio, or the Sobriety Tests were performed outside the angle of view of the in-car camera. To be fair, in most of the videos I've seen and heard, the Client has, to put it nicely, not been at their best. Told, for example, to count backward from 89 to 72, the Client will continue on past 72 into the 60's. Letters are skipped during alphabet recitals. "I've seen enough. Turn it off" is a request that has been made of me any number of times while the Client and I watched the video. Again, even if the video offers no help in avoiding a DUI, it does bring a certain peace of mind to the Client, because they can at least move beyond any belief (or clouded memory) that they did "fine." Although it may be exception, rather than the rule, finding that video where the Client does just fine is a bonus. It's like finding a pound of gold in a ton of dirt. Before any of this can be done, however, it must be determined whether or not there was any in-car video. As a general rule, most Police departments will "recycle," or erase over any video in about 30 days after it is recorded. This means a person must not delay in hiring a Lawyer to make that inquiry to prevent destruction of this evidence. Which should bring to mind two very important questions. Why would the Police destroy any video that supports their case? Wouldn't they really only be interested in getting rid of any video that did NOT help their case? The answer is not nearly as diabolical as it might first seem. Let's face it, there were as many DUI cases before the advent of in-car video as after. Like it or not, Police Officers are, to some extent, professional witnesses. They know how to testify. It's part of their job. And we can get as mad as we want about this, but the fact is, and it is a fact, that when Officer Clean Cut is up there detailing his "Reasonable Suspicion" for stopping a vehicle, and recounting how the Defendant failed the Field Sobriety Tests, there isn't a lot to contradict him with absent a video. There are some pretty slick salesmen out there who will try to make issue with things like the ground conditions at the time and place where any Field Sobriety Tests were administered, but all any Officer has to do is to point out that the ground seemed okay, and that he or she was able to demonstrate the Test to the Defendant without any trouble, and that line of attack turns out to be about as successful as asking the Officer "are you sure?" about what happened. In other words, the Judge isn't likely to say "Case dismissed. Officer, you're a liar!" Remember, all the Officer needs is Reasonable Suspicion to think the Driver was under the Influence to get them take the Sobriety Tests, and subsequently, the Preliminary Breath Test in the back of the Police car. Judges, not surprisingly, are generally not inclined to side with a suspected DUI Driver and rule against the Police. In fact, and this is no knock to the Judiciary, most Judge's will only do this when there is no choice, and it is crystal clear that the Officer is wrong. Given a judgment call between an Officer's version of what happened and a DUI Driver's (or his or her Lawyer's) what do you really think the Judge is going to do? Being a "friend" to suspected Drunk Drivers is not a way to get re-elected. In fact, in today's political climate, can you imagine the field day some challenger for a Judge's position would have if he or she was able to point out a high number of DUI dismissals on the part of the incumbent Judge? The point here is that the Officer's version of what happened, unless it can be proven inaccurate, carries a lot of weight. As I hinted before, absent any contradictory evidence, such as a video, a Defense Lawyer is pretty much stuck with asking "are you sure?" And what do you think the Officer is going to say? "Hmmm. I just finished smoking a really big, fat joint, right before I pulled over your Client, and I did have a pretty good buzz going at the time, so, no, I'm not that sure." This means the absence of any video seldom hurts the Police. In contrast, while the majority of in-car video either helps the Police, or at least doesn't hurt their case, there are some situations where it is a help to the Defendant, as it allows the Defense to contradict the Officer. The absence of any video poses no such problems. In other words, the Police will do just fine without having a video. They don't need it. Knowing these limitations allows the Client and the Lawyer to proceed without unreasonable optimism, but also can result in making better, informed decisions about how to handle a DUI. And given that, sometimes, what's on that video can amount to a jackpot, it is a line of inquiry that should always be examined carefully I often explain it this way to my Clients: Imagine you are going to the hospital for a sharp pain on lower right side of your abdomen. Seems like the appendix. The Doctor greets you and says "99% likely it's your appendix, and we'll have to perform surgery to remove it. There is, however, a 1% chance it's just gas, and if it is, then you only have to take this one pill, and you'll be better in a few hours. I can take an x-ray, it will help allow me to make that determination. Would you like the x-ray? It only costs $50, or would you just like to go straight to surgery?" Who wouldn't want the x-ray? In-car Police video is much the same thing.

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