Virginia DUI defense battles often embrace the incident video, says Fairfax DWI lawyer

Virginia DUI defense battles often embrace the incident video. As a Fairfax DWI lawyer, I know that the most defense unfriendly police dashcam and bodycam video footage might show a defendant who looks drunk, including heavily slurred speech, falling unless holding onto one’s car or another object, and making such off the wall comments as “happy new year” in the summer. Even those videos might have gold in them, including police failure to ask — rather than command — the driving under the influence (under Virginia Code § 18.2-266) suspect to submit to field sobriety testing; not asking the suspect if s/he has any physical, medical or other health impairments that might interfere with doing field testing; and not inquiring whether the suspect even understands and speaks English sufficiently. Sometimes the incident video reveals that the testifying officer is exaggerating at best or misstating the facts even worse, for instance about whether the suspect had slurred speech, fumbled to find his or her driver’s license and registration, and lost any balance more than slightly during field testing. My watchword is for Virginia DUI lawyers to embrace the possibilities to find gold even among the possible fecal matter in incident video, and to milk the good stuff in the videotape evidence to the hilt.

Relying on police testimony rather than video footage often is like letting the fox watch the henhouse

One of the scariest things about the more prevalent existence of police incident videotaping among Fairfax County police and beyond — but not used everywhere even after George Floyd and so many others have been wrongfully killed by police — is the frequency with which police dashcam and body cam video reveal gross inaccuracy in police reports (which commonly become a police officer’s gospel) and law enforcement officer testimony. In Fairfax and most of the other jurisdictions where I engage in Virginia DUI defense battles, the incident video can cover even hours of footage. The longer the video footage, the more possible it is that the prosecutor skipped over some of it, which means that the prosecutor may miss introducing some of the more damning video excepts into trial evidence, and which also presents me with the opportunity to ask the prosecutor: “Have you watched the video?” If the prosecutor says no, I am able to cue the prosecutor into some of the defense beneficial highlights — sometimes even replaying some of the highlights — to assist with settlement negotiations. If the prosecutor says yes, sometimes that “yes” sounds hesitating, perhaps because they skimmed some sections, or watched the video footage so long ago that they do not remember its contents. Nonetheless, I can then proceed along the lines of: “Seeing that you watched the video, then you also would have seen, as I did, that — despite the police report’s claiming otherwise — my client never slurred his speech, never stumbled, and was an angel with the police officer.”

Assuring that the police video footage is complete for Virginia DUI defense battles

Prosecutors often get so busy that not all will sufficiently inquire of police personnel whether the prosecutor has received all incident video footage, particularly where multiple videotaping was taking place from dashcameras and from multiple police officers’ body cameras. The same goes for producing 911 tapes to which the defense is entitled. A Virginia DUI and criminal needs to be ready to make that independent inquiry for Virginia DUI defense battles.

Virginia DUI defense battles often include the DWI lawyer’s confronting the police officer head-on about their exaggerations — and worse — about what really happened

In Virginia DUI defense battles, prosecutors often lamely counter masterful defense cross examination that blunts police testimony that looks manufactured out of thin air when totally absent in their police reports — by asking: “Is your police report intended to recount every single thing that happened in your investigation?” First, if the prosecutor and police officer thought that a particular point was important enough to bring out in their trial testimony, then it was important enough to be in their police report. Second, playing relevant police incident footage withstands any excuse that it is not humanly possible for a police officer to type out every single detail about his or her encounter with a Virginia DUI suspect, without writing a tome. Some of my most effective police cross examination includes: “You testified on direct examination with the prosecutor that my client, Jim, called you an S.O.B. Is that in your police report?” If the police officer says yes when that is not in his police report, I can follow with: “Here is your police report. Please tell us where it is in your report. I’ll wait.” Then the police officer is left to squirm to figure out when it is time to say that such a claim is nowhere in his or her police report. With police video, the threat can be all the more real to the officer about the absence of video footage to back up his or her claim, because an omission in a police report may not automatically mean that the police officer is mis-stating events, but the absence of video footage to backup a police officer’s claim can make the officer look at best as mistaken and at worst as lying or else playing fast and loose with the truth. No wonder that when I recently confronted a police officer on cross examination by saying: “With your insisting that A happened, I am now going to play that video segment of the incident,  and ask you to tell us where the video shows that happened.” When the police officer realizes that the video will not back up his or her testimony, he is going to back down from that part of his or her testimony.

When the incident video and police report reveal enough police mis-statements of the truth, the argument exists to not rely on any part of the police officer’s testimony that is not supported by the video footage

Why do so many police officers mis-state the truth? First, police officers come from the general population, in which mis-stating the truth and outright lying are all too common. Second, if the police officer has never been revealed on the witness stand to be grossly mis-stating the truth, s/he might simply continue with the same modus operandi. Third, it is quicker for a police officer to rush out a police report that reflects poorly remembered information and omits too much information that is defense-favorable — and then to treat his or her report like the gospel at trial — than to give all Virginia DUI and criminal defendants their due by either preparing a sufficiently accurate police report, to fully and fairly prepare their testimony, and to tell the prosecutor where their police report, recollection and past testimony has fallen short of accuracy. Virginia DUI defense battles need to keep in mind all of this reality.

Using the incident video to challenge police engagement in willful ignorance

Virginia DUI and criminal law provides that determining probable cause to arrest a suspect or not requires looking at the fund of knowledge available to the police officer at the time of arrest. If that is so, then the police officer must not engage in such materially willful ignorance as: (1) Not asking the Virginia DUI suspect if s/he has any physical, medical or other health impairments or injuries that might interfere with the suspect’s ability to perform such field tests as walking a line and standing on one leg. Police incident video will reveal when this is absent or asked in too narrow or incomplete a fashion. (2) Not asking a suspect with an accent that indicates English is the suspect’s second language, whether the suspect sufficiently understands and speaks English, and/or needs a language interpreter. Police incident video robs the police officer of the ability to understate how important it was for the officer to have engaged in such a line of inquiry. (3) Not asking an underdressed (this is common) DUI suspect stopped on a cold night, whether s/he has any additional clothing in the car that s/he may wish to put on to be less cold. The same goes for offering the suspect to perform field sobriety tests in another pair of footwear (if the suspect has another pair of shoes in the car) or without shoes. Sometimes the incident video will even show that the suspect is wearing high heels, which make for a non-alcohol factor for any physical mis-steps during field sobriety testing. All of these considerations are critical for Virginia DUI defense battles.

Police video footage can be powerful weapons in Virginia DUI defense battles, to use to the hilt to the defendant’s advantage.

Virginia DUI lawyer Jonathan Katz has successfully defended hundreds of people charged with violating the laws against driving under the influence of alcohol, illegal drugs, and medication. A DWI charge is a damning one that can also be accompanied by particularly distasteful collateral risks, for instance to security clearance, job, and military status. Jon Katz will not only pursue your best possible defense, but will incorporate your concerns about any such collateral risks into that defense. Call 703-383-1100 for your free in-person strictly confidential consultation with Jon about your court-pending case.