For defending criminal and DWI prosecutions, the defense early on needs to move to preserve and obtain video, audio and photographic evidence of and related to the incident.

At first blush, the criminal defense lawyer might ask whether it is better to try to make such evidence go out of sight and out of mind. In some rare instances that will be true. However, even if such evidence might be damning, the police officer’s recitation of events might be even more damning, whether through intentional or unintentional omission, memory lapse, intellectual weakness, perception handicap, distraction, tendency to accentuate the bad and minimize the good, exaggeration, recklessness with the truth, or outright prevarication.

Recently, I won a Virginia, General District Court DWI/DWI and refusal case at the arrest suppression argument stage, with great help from the incident video.

In this trial, the police officer stopped my client for speeding. Field sobriety tests were done. No preliminary roadside breath test was done (yes!). My client allegedly refused to take the Intox EC/IR II breath alcohol test at the jail.

Early on, I filed a discovery order — signed with my and the prosecutor’s mutual agreement — that included getting me any incident video. The prosecutor ended up providing me the police incident report — which is wise to do even though Virginia has no Jencks rule requiring that the police report be provided — and incident video.

On the one hand, my client’s behavior on the scene looked favorable in many respects, with an immediate and well-executed stop of the car in response to the police car’s emergency lights, generally good coordination, and clear speaking. However, some judges might have found at least probable cause to arrest when considering the speed, claimed odor of alcohol, my client’s admission to drinking, the officer’s claim of bloodshot and glassy eyes, and some issues following the officer’s instructions for the field sobriety tests. Add to that, the officer claimed my client at points was unsteady on his feet or swaying.

The prosecutor was wise to provide me the police report, rather than get caught running afoul of the Supreme Court’s mandate in Brady v. Maryland  timely to disclose exculpatory evidence to the defense.  

Here, the officer claimed that my client not only missed heel-to-toe and stepped off the line at least once each on the way out for the walk and turn test, but claimed the same for the return. On cross-examination, I asked the officer to confirm that his report was silent about missing heel-to-toe on the way back. He started reading his report aloud, albeit quietly, and I asked him simply to read the report quietly to himself. The officer first stated that his report did make such an allegation. I insisted that this was not the case, and he finally admitted I was right. I then elicited the police officer’s admission that his report did not say that my client stepped off the line on the way back. The video itself did not cover either. This deviation between the officer’s testimony and report may at first blush seem small, but it made the officer’s words all the more unreliable, and the incident video all the more important for the defense.

Also during cross examination, I obtained the officer’s confirmation that my client spoke with an overseas accent, but the officer did not bother to ask what other language my client spoke. I see this type of willful ignorancetime and time again with police not inquiring sufficiently about the English language capabilities of my clients who clearly speak English as a second language, and then trying to put the burden on my client to say they do not sufficiently understand and/or need an interpreter. Tell that to the slew of immigrants to the United States who come from countries where police are proxies of tyrannical governments and themselves act as tyrants. Or simply tell that to a criminal suspect all alone on a street staring at a police officer with handguns, a taser, a billy club or asp, and the power of arrest.

Praised be video technology, which is too inexpensive and easy to use not to be employed for all police encounters with suspects. First, I had the police officer confirm that he had previously watched the incident video, and that the video was authentic. I then had the video played for the judge, right through the end of the field sobriety testing. The video countered the officer’s claims of unsteadiness and swaying other than momentarily during the field tests. The video backed up my theme that we had a man caught on his way towards his home very late at night when most people are sleeping.

At the conclusion of playing the incident video, I did not need to ask any further cross examination questions. The video had spoken for itself.

I then successfully argued that the police officer lacked probable cause to arrest my client for DWI, including discussion of the probable cause standard detailed in Maryland v. Pringle, 540 U.S. 366 (2003). The prosecutor tried arguing a totality of circumstances scenario that purportedly favored a finding of probable cause, but the judge was not swayed that probable cause existed to arrest. In making that conclusion, the judge included reference to how well the video showed my client pulling his car over for the police officer, never coming close to hitting the adjacent guardrail. Praised be video.

As a result, the judge dismissed not only the DWI charge, but also the breath test refusal charge, because a breath test refusal conviction cannot be obtained without probable cause to arrest for DWI.

As icing on the cake, the judge also dismissed the third and final charge of speeding, where the prosecutor was unable to offer into evidence sufficient documentation to prove the reliability of the radar system used to check my client’s speed.

Now, I am going to urge people to do something that — if followed by everyone, but few follow this urging — would dry up lawyers’ DWI clientele. The DWI laws are so unfavorable to driving even with a small amount of beer, wine or alcohol in one’s system that it simply is not worth risking getting behind the wheel within twenty-four hours after consuming alcohol. At first blush, this urging might sound like it is from a killjoy. However, particularly in this day and age of widely available taxi alternatives as Uber, the expense and aggravation of paying for a ride home, or even of staying at a nearby hotel, can spell the difference between that minor annoyance, and the angst and attorney and even liberty expense of defending a DWI case in court.

In any event, justice prevailed in this particular videotaped case. If only justice always prevailed in court, but it does not.