“[T]here is a camera in the officer's vehicle. When he returned to the station, there was some sort of download process with the camera. There was a person at the police department, I do not have that person's name and I don't have that person in court with me today. The officer tells me that he is in charge of downloading the videos and things of that nature. This person told Officer Foltyniewicz that the video was unavailable, that it did not work. That being the case, there was a camera, I understand, but there is not an actual video of the stop.”
The court denied a motion for sanctions, noting that there was no evidence presented that there was an intentional or willful destruction of any evidence. However, the court noted:
“[I]t is something that I think I can and, frankly, I will consider [at the rescission hearing]. There is a video. I have no explanation as to why that video doesn't exist. Again, I am not making any finding that it was willful or intentional, but the impact of that is going to be something that I can and I will consider during the course of the hearing. * * * I will consider that failure to produce that video. I think it was something that was in the possession of law enforcement. It doesn't exist and there is no explanation for that, and that's a factor I can and will consider.”
Officer Foltyniewicz testified that he asked the defendant to step out of the vehicle to determine whether she had consumed alcohol. Foltyniewicz detected the odor of alcohol coming from defendant's breath, and he asked defendant to perform four field sobriety tests. Ultimately, he concluded that she failed three of the tests. Specifically, on the walk-and-turn test, defendant did not stumble or fall, but Foltyniewicz observed that defendant did not touch toe-to-heel, raised her arms more than six inches from her body, and did not follow instructions on the turn. Further, on the one-leg-stand test, defendant put her foot down before Foltyniewicz told her to stop. Finally, on the breath test, defendant formed a tight seal with her lips around the tube, but did not blow as instructed and, therefore, no results were obtained. According to Foltyniewicz, defendant admitted that she had earlier consumed one glass of wine. Foltyniewicz arrested defendant. In his testimony, Foltyniewicz made no mention of the alleged video recording.
Thereafter, defendant, a home health care nurse, testified to her belief that she did not fail the sobriety tests. Specifically, defendant testified that she walked the walk-and-turn test as instructed, including touching heel-to-toe, and that she had her hands at her sides during the one-leg-stand test, but, because she was “very nervous,” lights were shining, and “a lot was going on,” she did not know whether she held her arms more than six inches from her body. Defendant denied telling the officer that she consumed any alcohol that night.
The court granted defendant's petition to rescind the suspension. The court noted that Foltyniewicz was “very credible” in its mind. However the judge stated:
“The concern that I have, the issue in my mind, is the field sobriety tests. Again, I think the officer testified credibly as to the defendant's performance * * *. I found the officer to be more credible [than defendant]. The question I have, and this is troubling to me, is that there is a tape. It was inadvertently not recorded, destroyed, I don't know if you want to call it that, which is what the cases say. But there was a tape recording that we don't have. It wasn't intentional based upon what's been represented to me, but through no fault of the defense, they were diligent in trying to get a tape. I do not think that it automatically warrants reversal. If it was intentional, perhaps it would be different. But that's where I come down.
If it was a case where there was no tape, this call would be easy for me. I think the officer testified more credibly, but the absence of the tape raises a concern in my mind. Again, I don't find that it was intentional, it's inadvertent, but it's in control of the State. There's principles of civil law that indicate that if there's evidence that was in the possession of one party and it's destroyed, whether it's inadvertent or not, there is an inference to be drawn that it was detrimental to that party. Again, I don't know that, but that's the concern that I have is that there was a tape that the defense can't have, through no fault of theirs.
It's for that reason, and I am reluctant to do it, I don't know how to express that any better, reluctantly. The officer testified credibly. I think he behaved like a professional, but because of the absence of the tape, that it was inadvertently not recorded or destroyed, I am going to rescind the summary suspension.” (Emphases added.)
On appeal, the court affirmed the trial court's ruling:
"the court considered that a recording was made on the very issue disputed by the parties, i.e., whether reasonable grounds existed for Foltyniewicz to believe that defendant was driving while intoxicated. That video, which might have held exculpatory value for defendant, was unavailable. The court did not rescind the suspension as a sanction to the State, but it did inherently find that the information presumed to be on the video, coupled with defendant's testimony, outweighed the evidence in the State's favor."
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