Police video does not tell the whole story, says Fairfax DUI lawyer

Police video (PV) is essential for your Virginia DWI attorney to arrange to receive well before your trial date in court. As a Fairfax DUI lawyer, not only do I move quickly to obtain such video as soon as possible, but I inquire whether I have received all available dashcamera / dashcam and body worn camera / bodycam footage from the police, on top of considering whether to tell the police and prosecution to assure that any records retention policy not be used to destroy video footage. By putting the Virginia commonwealth’s attorney’s office and the specific law enforcement agency on such notice, any such spoliation of evidence all the more becomes subject to obtaining relief under the Supreme Court’s Brady rule concerning prosecutors’ obligations timely to divulge exculpatory evidence to criminal defense lawyers. This article focuses on what the PV does not always show.

Insist on downloadable Police video

At least one Northern Virginia prosecutor’s office has a penchant for not providing downloadable Virginia police video showing non-law enforcement non-defendants talking, at least absent the issuance of a protective order by the court. When prosecutors provide non-downloadable video links (commonly through the Axon / Evidence.com platform) in the face of a court order that says to make such video available in downloadable format, they expose themselves to sanctions for disobeying a court order, at least if the prosecutor does not first file a motion and pretrial hearing request to amend that court order. Downloadable video makes the video footage available to copy to the defendant by flashdrive, Google Drive, or Dropbox. Anytime Virginia DUI video footage is watched on Axon / Evidence.com , the prosecutor will have a record of the dates and times of the viewing, and sections that were watched, and who knows if your IP / Internet Protocol address used can also be recorded? A colleague recently told me of a prosecutor who posited that the defense lawyer already saw the incident video, and proceeded to state the date of the viewing. My viewing activity — and that of my Virginia clients charged with driving under the influence of alcohol or drugs under Virginia Code § 18.2-266 — of prosecutorial and police discovery and evidence should always be my business alone.

Virginia DUI incident camera and audio footage does not reveal what happened before and after the camera got turned on and off

As a Fairfax DUI lawyer, I repeatedly see that Virginia DUI police video starts only after the first — if not only — alleged traffic / moving violation that the law enforcement officer ( LEO ) uses to justify his or her stop of the defendant’s car. Similarly, the incident video for Northern Virginia DWI cases ordinarily stops before the defendant enters the jail or police station to be offered or told to provide a blood alcohol ( BAC ) via breath testing or blood (thus typically depriving such defendants of independent ammunition to use to defend against charges of refusing post-DWI arrest BAC testing, and depriving the defendant of independent evidence about whether the breath technician checked the Virginia DUI defendant’s mouth for such foreign substances as food, chewing gum, or dip (chewing tobacco), all of which can trap alcohol in the mouth with post-arrest BAC testing is supposed to be checking for deep lung alcohol.

The Virginia DUI blood alcohol content tester even sign his or her name in the BAC certificate of analysis attestation clause?

Also not shown in Virginia police video is the completion or not of the attestation clause in the certificate of analysis. The attestation clause in the Virginia Department of Forensic Science ( DFS ) BAC results form includes an attestation clause / paragraph with a box for the BAC breath testing technician to sign, to assert that DFS-approved equipment was used for the testing, and that the testing conformed with BAC procedures. However, sometimes the technicians leave that attestation box blank. Sometimes they only print their name rather than signing their name, which I argue is not an attestation at all, and that it invalidates the BAC test results shown therein.

Fairfax DUI lawyer Jonathan Katz is among the small percentage of Virginia DWI defense lawyers who are members of the vital National College of DUI Defense, and an even smaller percentage of those who have been trained to administer standardized field sobriety tests to people who have consumed alcohol, by one of the nation’s leading trainers of police on the SFST’s. Call 703-383-1100 for your free in-person initial confidential consultation with Jon Katz about your court-pending case.