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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DWI Law - Texas Judge Videotape Trial Policy Violates Rights

This opinion comes to DAD thanks to NCDD Regent Troy McKinney, who tells DAD that the trial attorney in the case was NCDD Fellow Gary Trichter. Troy says that "this went on this county (north of Dallas) for over 20 years with no lawyer ever appealing it." This is a case where 26 lawyers filed affidavits regarding the policy in question. Before trial, appellant filed a motion styled “Motion To Play Video For Defense Cross–Examination, Defense Direct Examination, In Closing Arguments [,] In A Motion To Suppress Outside The Presence Of The Jury.” In his motion, appellant stated:

[The trial court] had a long standing policy of not allowing litigants to use a properly admitted DWI video/audio recording for a defendant for purposes of cross examination of the arresting officer in the State's case in chief, for direct examination of defense witnesses in defendant's case in chief, for use before the jury prior to closing argument or to play the same during closing argument. Rather, it is understood that the court will admit the recording and allow the jury to use it only during deliberation.

Appellant then filed a motion to recuse the trial court judge, contending the trial court's routine practice of not allowing defendants to play or use audiotapes and videotapes during the questioning of witnesses constituted bias and denied appellant his federal constitutional rights to due process of law, cross-examination, compulsory process, confrontation, a fair trial, effective assistance of counsel, and his right to present a defense. Appellant further alleged the trial court's policy denied him his rights under the state constitution to put on a defense, to due course of law, to cross-examination, to confrontation, to a fair trial, to compulsory process, and to effective assistance of counsel.

The appellate court ruled as follows:

"We agree with the parties that the trial court's ruling prohibiting the publication of the videotape evidence to the jury in a timely manner, a decision preordained by the trial court's policy without reference to the facts and circumstances of this case, was arbitrary and constitutes an abuse of the trial court's discretion. See Billodeau, 277 S.W.3d at 39; Mechler, 153 S.W.3d at 439; Montgomery, 810 S.W.2d at 380. We further conclude the trial court's order deprived appellant of a meaningful opportunity to defend himself, and violated appellant's rights under the Sixth and Fourteenth Amendments to present his defense and confront the witnesses against him. See Holmes, 323 S.W.3d at 173.

Editor's Note: As they say, everything in Texas is 'BIG'. And nothing is bigger than the guts it takes to call out a bad judge or a bad policy. Congrats to all attorneys involved.


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DUI Appeal of the Day (DAD) - State deliberately destroyed potentially exculpatory evidence

In State of Delaware v. Wright, Not Reported in A.3d, 2011 WL 826357 (2011 Del.Com.Pl.),upon entry of appearance, counsel for the Defendant filled a request under Court of Common Pleas Criminal Rule 16 for the production of “a copy of the videotape/recording device of the in-station security tape/recording, as well as the 20 minute observation period”.FN1 Defense counsel proffered that there “was not a 20-minute observation period and that the examining officer left the room during the observation period.” FN2 This observation period is required to properly lay the foundation for admissibility of the intoxilyzer test results at trial. Upon subpoena, the chief would constantly respond that:

Please be advised that The Rehoboth Beach Police Department does not have a video tape of your client walking into the building or of the twenty minute observation period. We have a surveillance camera that is used for security purposes monitored by our Dispatch Center. This device records for immediate playback only. There is no retention of these recordings.

His system was built to hold up to 2.6 days of video when set to record 24/7, and about 4.6 days when set for motion only. However, in reality the system worked much longer, and the police often retrieved video when accused of assaulting arrestees or for other beneficial purposes. Thus, the chief knew that his statements were false or misleading. His misleading statements were repeated for years, as evidence was allowed to be erased and destroyed.

When the trial court here found out, it suppressed the breath test as a sanction based upon a discovery violation:

The Court finds that the Rehoboth Beach Police Department's discovery policies constitute entrenched, flagrant misconduct. Between 2006 and 2009, Chief Banks repeatedly distributed incorrect discovery responses to defense attorneys despite his knowledge that these responses were misleading and incorrect.

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