Virginia DUI incident video omits the full picture about testing conditions, says Fairfax lawyer

Virginia DUI incident video’s prevalence in Northern Virginia is a big improvement over the days when such videotaping was much less common. At the same time, as a Fairfax DWI lawyer, I know that much of the essential defense story against a prosecution for driving under the influence of alcohol or drugs under Virginia Code § 18.2-266 still is not always told by the video, which does not tell if the temperature was freezing; does not show the full extent of debris, inclines and declines on the ground; and does not show what happened before the video started nor after it ended. Consequently, such incident footage assists in understanding the incident, but does not answer all essential questions about the incident.

Look for telltale signs of raindrops on the police officer’s windshield in Virginia DUI incident video

Police and prosecutors attempt in a Virginia DUI trial to focus heavily on the suspect’s performance on so-called standardized field sobriety tests (SFSTs or FSTs). However, such testing is hardly standard and all the less reliable when conducted in less than ideal conditions, including cold, rain, snow, fatigue situations for the suspect, denying suspects the opportunity to go to the bathroom or to drink water when thirsty, being underdressed, wearing awkward footwear (or footwear without sufficient traction), being in the presence of armed police controlling their actions, doing testing on inclines and declines, and dealing with road debris and the distraction of cars whizzing by during field sobriety testing. The Virginia DUI incident video does not reveal all of this. Nor do police always sufficiently probe whether the defendant can sufficiently understand them in the loud traffic (nor whether English is their first language), nor clearly enough determine whether the defendant has any physical or other health issues that can interfere with such testing. A Virginia DWI defense lawyer needs to discuss these issues early on with his or her client, and needs to be ready to cross examine police accordingly about such circumstances.

Recreating the less than ideal FST conditions in the mind and feeling of the judge and jury

Obtaining and playing the Virginia DUI incident video can be critical for a DWI defense lawyer to convey to judges and jurors how even if they were doing such field sobriety tests when stone sober, they could well have faltered numerous times. Many judges and jurors are resistant to letting these less than ideal conditions lead to an acquittal, but their oaths require judges to suppress a DUI arrest when without probable cause, and requires factfinders (whether judges or jurors) to acquit unless they find guilt beyond a reasonable doubt. Certainly the incident video often includes unfavorable evidence to a person accused of violating the Virginia DUI law. Nonetheless, the DWI defense lawyer and the defendant need to decide whether it does more good than harm to play the video at trial. Moreover, if the prosecutor sees the video as beneficial to his or her case, the prosecution may present the video at trial anyway, so the defense needs to be able to use the video footage to the defendant’s best advantage, no matter what. Also, the defense needs to be ready to move to keep out police and other witness statements on the video footage that is inadmissible.

Throwing off the game of police and prosecutors in DUI court

Virginia police and prosecutors love nothing more than for a DUI defendant to walk into court without having a qualified DWI defense lawyer to throw off their game, including to challenge Virginia DUI incident video and to break apart their claim that this is somehow but an open and shut case. DUI is big business for police and prosecutors, because of the decades long attitude of so much of the public to get tough on driving under the influence, and because of any law enforcement funding earmarked towards such cases. A qualified criminal defense lawyer is often the only assurance that a DWI defendant will get a fair and effective trial.

How to obtain incident video in Fairfax and other Northern Virginia counties

The ideal way to obtain Virginia DUI incident video varies from county to county. In my home county, the Fairfax County prosecutor’s office offers to request incident video and police reports to be produced in as little as two weeks after being requested. In another nearby county, downloadable video (versus video that can only be watched using the lawyer’s evidence.com user ID and password) can only be obtained by appearing for a hearing to obtain a discovery order. An experienced Virginia DUI defense lawyer will know how to obtain said discovery.

Fairfax DUI lawyer Jonathan L. Katz has successfully defended hundreds of people charged with driving under the influence of alcohol and drugs. Obtaining and carefully analyzing Virginia DUI incident video and police reports is, and fully defending in court, is part of his comprehensive defense for DWI suspects. Call 703-383-1100 for a free in-person confidential consultation with Jon Katz about your court-pending case.