Tuesday, September 27, 2011

DUI Law - Lost Videotape Lets Driver Win in Missouri

In Zahner v. Director of Revenue, State of Missouri, --- S.W.3d ----, 2011 WL 4025275 (Mo.App. W.D.) the defendant was arrested for DUI by an Officer Pierce. He filed for review of his suspension and was given a hearing in the trial court. According to Officer Pierce, Zahner refused to take the test. Zahner maintained that he never refused to take the test, and Zahner claims that Officer Pierce never read him the implied consent warning required by law.

At the hearing, Officer Pierce testified that any confusion over whether he had read the implied consent warning to Zahner and whether Zahner refused the test could be cleared up by a video recording of Zahner's booking at the police station. Notably, the trial court instructed the Director to produce the videotape—strongly suggesting that the trial court was not convinced that Officer Pierce's testimony alone was sufficient to convince the trial court that Zahner had been read the implied consent warning or otherwise refused the breath alcohol test. The trial court continued the hearing so that the videotape could be produced to the trial court for review. A week later, however, counsel for the Director advised the trial court that the videotape had been “destroyed as part of the post arrest routine.”

In its judgment, the trial court noted, in pertinent part:

The Court is also troubled by the officer's assurance that the recordings were available only to be advised one week later that the recordings had been “... destroyed as part of the post arrest routine.” The Court chooses not to infer that the destruction occurred after the officer's assurance.


The “policy” here alleged causes the Court to ask, “If the recordings are not preserved for evidentiary purposes then why are they made in the first instance? Are they gleaned to preserve evidence favorable to the arresting agency in support of their cases and the rest purged so as to be unavailable to a party opponent?”

Left without production of the corroborating evidence promised by Officer Pierce, the trial court weighed the credibility of the conflicting evidence and ruled in favor of Zahner, entering judgment requiring that the Director reinstate Zahner's driving privileges.

On appeal, the court wrote as follows:

"Even though the spoliation doctrine may not be applicable to the Director for the conduct of law enforcement officers, this case illustrates the practical dilemma a law enforcement agency faces when it destroys relevant evidence—i.e., the risk that the arresting officer's testimony may not be accorded the credibility that the officer (and the Director) might like for such testimony to receive.FN3

FN3. When faced with destroyed evidence—but not applying the spoliation doctrine—the trial court is free to “believe all, part or none of the officer's testimony” and is “free to consider the failure to produce the video and audio recordings in its decision.” Douglas v. Dir. of Revenue, 327 S.W.3d 555, 557 n. 3 (Mo.App.S.D .2010).

Ruling in favor of the driver, the court concluded as follows:

"The evidence in this case was hotly contested on numerous disputed facts. But, the trial court did not limit either party's opportunity to present evidence in support of their respective positions. Unlike the Prins and Baldridge cases,FN5 the trial court permitted the Director to present all evidence in her possession supporting the administrative revocation of Zahner's driving privileges and likewise permitted Zahner to present his rebuttal evidence before the trial court issued its judgment. Further, the trial court included language in its judgment that it was not inferring bad faith in the destruction of the relevant videotape. In fact, the trial court does not even mention the spoliation doctrine in its judgment.FN6 However, in the trial court's judgment, the trial court notes that it found the destruction of the videotape as “troubling” and “odd” enough such that “under the circumstances of this case,” the trial court refused to believe the Director's evidence supporting administrative revocation of Zahner's driving privileges and instead chose to believe Zahner's rebuttal evidence.FN7 This is not to say that a different trier of fact could not have concluded differently. The Director made a prima facie evidentiary showing in support of administrative license revocation, and the trial court could have chosen to accept the Director's evidence in support of the revocation of Zahner's license—with or without corroborating video evidence. But, the trial court heard conflicting evidence on the claim that Zahner refused the breath alcohol test and whether Zahner had been properly warned of the Implied Consent Law, and after weighing all of the conflicting evidence, this trier of fact chose to believe Zahner's version of events that he did not refuse the breath alcohol test and that he had not been properly advised of the Implied Consent Law. There is substantial evidence in the record to support the trial court's judgment.

EDITORS NOTE: This case explains a different tactic that can be employed in lieu of seeking sanctions. Rather than forcing a judge to make a politically difficult decision (and one that might not be upheld on appeal) convince the court to simply apply an evidentiary ruling that favors the driver.

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