DUI Law - Illinois Sanctions Loss of Videotape

In People v. Kladis, 2011 IL 110920 (decided December 30, 2011) the Illinois Supreme Court affirmed a trial court ruling, barring any evidence that was contained on a videotape that was negligently erased after it had been requested by defense counsel.  The facts established that within 5 days after the defendant had been arrested for DUI (and 25 days prior to the first court date) the defense filed and hand delivered a discovery request for inter alia, any and all videotapes of the stop and arrest of the defendant.

On the first court date, the State failed to produce the tape. After confirming with the arresting officer that the incident was videotaped, the matter was continued so that the state could obtain a copy of the video for the defense. At the next court date, it was learned that the police department, pursuant to policy, had automatically purged the tape (25 days after the request was handed to the prosecutor and hours prior to the 1st court date). The trial court barred introduction of any evidence that would have been on the tape, including the driving of the car, the field sobriety tests, and the manner in which the defendant exited the vehicle.

The Supreme Court first dealt with the State's argument that the video was not 'discoverable' because discovery for misdemeanors is extremely limited, and videotapes were not included on the list of things that a defendant can seek in a misdemeanor DUI, based on an old 1974 decision on discovery. The Supreme Court in the instant case stated that the 1974 decision was merely a review of the status of custom and practice at that time, and was not intended to remain static, nor was it intended to "not take into account the fundamental changes which have occurred in law or society since that ruling."

"In sum, we conclude that the routine video recording of traffic stops has now become an integral part of those encounters, objectively documenting what takes place by capturing the conduct and the words of both parties." The Suprem Court therefore held that videotapes were discoverable.

In terms of the propriety of the sanctions incurred for failing to comply with discovery, the court found the sanctions proportionate to the violation. "Here, the court properly exercised its discretion in choosing from the spectrum of available options and narrowly tailoring its sanction to bar the State from introducing testimony regarding what was contained in the video recording."

Congratulations go out to Attorney Ed Maloney, partner to new NCDD member Thomas Moran.

Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Law - Use of Video Doesnt Violate Confrontation Says Florida

In State of Florida v. Holland, --- So.3d ----, 2011 WL 6183512 (Fla.App. 4 Dist.) the defendant was stopped and eventually arrested for DUI. After the initial stop, BSO Deputy Grady was called to the scene to perform field sobriety exercises on Holland. He requested Holland undergo a breath test. The interaction between Grady and Holland was recorded by video camera. In particular, the videotape showed Holland's refusal to submit to breath testing, the field sobriety exercises administered by Grady, and the conversations between Grady and Holland during the course of the investigation.

Before Holland's trial, the State announced that it did not intend to call Grady as a witness, prompting Holland to move to suppress all of Grady's involvement in the investigation. This included the entire contents of the videotape. Holland argued that the State's decision not to call Grady would violate the Confrontation Clause under the Sixth Amendment to the United States Constitution,FN1 citing to Crawford v. Washington, 541 U.S. 36 (2004). The trial court agreed and suppressed the video.

On appeal, the court reversed. It found that the defendant's refusal to submit to sobriety cases was admissible, citing to a variety of cases as such:

"First, Holland's refusal to submit to sobriety testing is admissible. This issue has been resolved by the Legislature's enactment of the implied consent law under section 316.1932(1)(a) 1.a ., Florida Statutes (2010). Section 316.1932(1)(a) 1.a. provides in pertinent part that “[t]he refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.” § 316.1932(1)(a) 1.a., Fla. Stat. (2010); see also State v. Kline, 764 So.2d 716, 717 (Fla. 5th DCA 2000) (holding that implied consent law requires admission of a defendant's refusal to submit to a breath or urine test). We look no further than the legislative directive to conclude that the segment of the videotape showing Holland's refusal is admissible under section 316.1932(1)(a) 1.a. Furthermore, Holland's statements on the videotape constitute admissions of a party opponent. See § 90.803(18)(a), Fla. Stat. (2010) (providing an exception to the hearsay rule when a statement is offered against a party and is “[t]he party's own statement in either an individual or a representative capacity.”). Therefore, under section 90.803(18)(a), the statements are admissible. See Dias v. State, 890 So.2d 1254, 1255 (Fla. 4th DCA 2005); cf. United States v. Valdes, 214 F. App'x 948, 950 (11th Cir.2007) (“Statements made by [the defendant] in tape-recorded conversations [with an informant], when presented by the Government, were not hearsay because they were admissions of a party opponent.”).

How the above statutes and caselaw relating to the admissibility of a refusal to submit to a post-arrest breath blood or urine test authorizes the admissibility of evidence of a refusal to submit to pre-arrest field sobriety testing is beyond this author's comprehension. In regards to the remaining portions of the videotape, the court wrote:

"We hold that Grady's statements on the videotape were non-hearsay verbal acts. A verbal act is defined as “an utterance of an operative fact that gives rise to legal consequences.” Banks v. State, 790 So.2d 1094, 1097 (Fla.2001). Verbal acts are not hearsay because they are admitted to show they were actually made and not to prove the truth of what was asserted therein. Id. at 1097–98.

Here, Grady's directives on the videotape during the sobriety exercises, both verbal and non-verbal, are not hearsay because they were not offered for the truth of the matter asserted. Instead, they were offered to give meaning to Holland's otherwise ambiguous acts. See Longval v. State, 914 So.2d 1098, 1102 (Fla. 4th DCA 2005) (noting that witness testimony describing the conversation on a surveillance video in evidence was admissible over hearsay objection because it described and gave significance to the ambiguous conduct on the videotape); see also Stotler v. State, 834 So.2d 940, 944 (Fla. 4th DCA 2003) (holding that words that explain or give meaning to otherwise ambiguous acts are not hearsay). The State is correct that Holland's reactions on the videotape would be meaningless without having the benefit of Grady's statements prompting Holland's reactions."

The court reversed and remanded the case to the trial court to determine whether the videotape was properly authenticated through the testimony of the deputy who conducted the initial traffic stop.

Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DWI Law - New Jersey Booking Video Loss Creates Negative Inference

What happens if the police department has a booking room video of a defendant, and prior to retrieval the system (allegedly) corrupts, rendering the video irretrievable? In New Jersey v. Ayala, Not Reported in A.3d, 2011 WL 3476806 (N.J.Super.A.D.), the defendant sought suppression, arguing that the failure to have a system in place to download the video before it is subject to loss, was a suppressible scenario. Additionally, the defendant sought to have the jury instructed that they should draw a negative inference against the government for the incident.

On appeal, the court reviewed the constitutional law on the subject of destruction of evidence. Reviewing Trombetta and Youngblood, the court held that in the absence a showing of bad faith (which wasn't proven according to the trial judge) there was no basis for suppression.

Nevertheless, the court did authorize the use of a jury instruction, as well as introduction of the circumstances of how the tape was (neglectfully) not preserved, as an appropriate tactic to be employed by the defense:

"In its brief on this appeal, the State acknowledges that evidence relevant to the production and loss of the recording would be admissible. We agree.

"In addressing whether a state's loss of evidence that did not meet the Trombetta standard amounted to a denial of due process, the Supreme Court relied, in part, on the fact that the jury was instructed that it could draw an adverse inference if it determined that the state acted in bad faith. See Youngblood, supra, 488 U.S. at 54, 109 S.Ct. at 335, 102 L. Ed.2d at 287; cf. Marshall, 123 N.J. at 109 (quoting Youngblood on this point and finding no due process violation where the State diminished the prejudice by opting not to introduce the test results it obtained through testing of a tire that limited defendant's ability to conduct tests that may have produced exculpatory evidence). If the evidence presented at trial permits an inference of bad faith such an instruction should be given.

"We stress that this court's acceptance of the judge's finding that the officers' loss of the recording was not intentional or the result of bad faith is a product of our standard of review. On the evidence presented at the suppression hearing, a reasonable person crediting defendant's testimony and discrediting the officers' testimony could come to a different conclusion. We refer to the inconsistencies in the officers' testimony about activation of the recording device; the fact that Purcell claims he was unable to retrieve the recording in June but Butler testified that the power surge that affected the computer occurred in August; defendant's testimony that a tape recorder was used; and the fact that the State had no information as to recordings that were stored on the computer's server or hard drive.

"For all of the foregoing reasons, we conclude that the judge did not err in denying defendant's motion to suppress for failure to preserve the recording. Our holding assumes that the trial judge will admit the State's evidence subject to conditions that give defendant a reasonable means of presenting the exculpatory evidence through his own testimony and the inference available therefrom, including an instruction on any negative inference based on bad faith that is available from the evidence adduced at trial."

Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DWI Law - South Carolina Throws Out Arrest Based on Lack of Video Camera

The late Reese Joye, beloved member and Fellow of NCDD, was instrumental in passing a law in South Carolina mandating in-squad videotaping in DWI cases. His spirit still lives on as exemplified in Town of Mt. Pleasant v. Roberts, --- S.E.2d ----, 2011 WL 2682407 (S.C.). There, Officer Bruce Burbage of the Town of Mount Pleasant's Police Department conducted a traffic stop of Roberts after observing her driving erratically. As a result of his initial observations, Officer Burbage conducted three field sobriety tests, on which he noted Roberts “performed pretty poorly.”

Subsequently, Officer Burbage arrested Roberts for DUI and transported her to the Mount Pleasant Police Department where Roberts was offered, but refused, a breathalyzer test. There was no recording of the initial traffic stop, field sobriety tests, or the arrest as neither Officer Burbage's vehicle nor the backup officer's was equipped with a video camera.

In response to Roberts's discovery motions, which included a request for production of the incident site videotape, the Town's prosecutor forwarded an “Affidavit for Failure to Produce Videotape” executed by Officer Burbage on October 16, 2009. The affidavit, a form generated by the Town, included a “checked” box that stated:

At the time of the Defendant's arrest the vehicle I was operating had not been equipped with a videotaping device and therefore pursuant to Section 18 of Senate Bill 174 of 1998, the videotaping requirement regarding vehicles is not applicable.

On October 30, 2009, a municipal court judge conducted a jury trial on Roberts's DUI charge. Prior to trial, Roberts moved to dismiss the charge based on Officer Burbage's failure to videotape the entire arrest pursuant to section 56–5–2953. Roberts asserted that section 56–5–2953 conferred upon her a statutory right to have the roadside arrest videotaped. Because Officer Burbage failed to comply with the statutorily-mandated procedure, Roberts claimed this violation warranted the dismissal of her DUI charge. The motion to dismiss was denied.

The Town relied on subsection (G) of the statute for the proposition that the videotaping requirement took effect only “once the law enforcement vehicle is equipped with a videotaping device.” FN6 Because Officer Burbage's vehicle was not equipped with a video camera, the Town argued that the videotaping provisions of section 56–5–2953 were inapplicable and, thus, the failure to videotape Roberts's arrest did not warrant the dismissal of the DUI charge.

In support of her motion, Roberts called several law enforcement officers from Charleston, Berkeley, and Dorchester counties in an attempt to establish that the Town had fewer video cameras than other municipalities despite the Town's significantly higher number of DUI arrests. Given these statistics, Roberts argued that the Town had willfully avoided complying with the 1998 statute as it had not requested from the South Carolina Department of Public Safety (DPS) additional video cameras in response to the increasing number of DUI arrests. Roberts also offered evidence that the Town was financially able to purchase additional video cameras, but had chosen not to do so.

The Town countered Roberts's arguments by claiming that DPS was solely responsible for providing the video cameras and, thus, the Town did not have a duty to request or purchase additional cameras in order to comply with the statute.

Discussing the issues on appeal, the appellate court wrote:

"Taking into consideration the purpose of section 56–5–2953, which is to create direct evidence of a DUI arrest, we find the Town's protracted failure to equip its patrol vehicles with video cameras, despite its “priority” ranking, defeats the intent of the Legislature and violates the statutorily-created obligation to videotape DUI arrests. Accordingly, we do not believe that the Town should be able to continually evade its duty by relying on subsection (G) of section 56–5–2953. Thus, we hold that the Town's failure to equip its patrol vehicles does not negate the application of the statutory exceptions in subsection (B).

"Under the specific facts of this case, we find the Town failed to satisfy any of the above-outlined statutory exceptions. Significantly, the Town conceded in municipal court and before the circuit court that the initial three exceptions did not apply and could not justify its failure to videotape Roberts's DUI arrest.

"Thus, the only feasible exception is that there was a “valid reason” for the Town's failure to comply with the mandatory videotaping requirements. Although the Town did not explicitly reference this provision, it argued that Officer Burbage's patrol vehicle was not equipped with a video camera because DPS had not supplied the Town with a sufficient number of cameras and the Town was not obligated to expend funds to purchase the cameras.

"As we interpret the circuit court judge's order, we do not discern a ruling that the Town was obligated to purchase the cameras with its own funds. Instead, the circuit court judge imposed an obligation on the Town to request additional video cameras given the Town's “high ranking” for DUI arrests as compared to other municipalities.

"Consequently, the question becomes whether the Town's failure to request additional video cameras constituted a “valid reason for the failure to produce the videotape based upon the totality of the circumstances.” Id. § 56–5–2953(B). We find the Town's explanation is disingenuous given its significantly higher number of DUI arrests as compared to smaller municipalities. Moreover, the Town's interpretation of subsection (G) is nonsensical as the requirements of section 56–5–2953 could be circumvented in perpetuity if a law enforcement agency purposefully does not request additional video cameras.

"Admittedly, the Legislature was silent with respect to a time requirement for when vehicles must be equipped with video cameras. However, applying the rules of statutory construction, we find the Town's interpretation would defeat the legislative intent of section 56–5–2953 and the overall DUI reform enacted in 1998.

"Finding that neither subsection (G) nor the statutory exceptions in subsection (B) excuse the Town's noncompliance with section 56–5–2953, the question becomes whether the failure to videotape a DUI arrest warrants a per se dismissal of the DUI case or whether, as the Town contends, the accused must establish that he or she was prejudiced.

"As evidenced by this Court's decision in Suchenski, the Legislature clearly intended for a per se dismissal in the event a law enforcement agency violates the mandatory provisions of section 56–5–2953. Notably, the Legislature specifically provided for the dismissal of a DUI charge unless the law enforcement agency can justify its failure to produce a videotape of a DUI arrest. Id. § 56–5–2953(B) (“Failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal of any charge made pursuant to Section 56–5–2930 ... if [certain exceptions are met].”). The term “dismissal” is significant as it explicitly designates a sanction for an agency's failure to adhere to the requirements of section 56–5–2953.

"Furthermore, it is instructive that the Legislature has not mandated videotaping in any other criminal context. Despite the potential significance of videotaping oral confessions, the Legislature has not required the State to do so. By requiring a law enforcement agency to videotape a DUI arrest, the Legislature clearly intended strict compliance with the provisions of section 56–5–2953 and, in turn, promulgated a severe sanction for noncompliance.

"Thus, we hold that dismissal is the appropriate sanction in the instant case as this was clearly intended by the Legislature and previously decided by this Court in Suchenski."

Editor's Note: No other State yet has a law mandating videotaping in DUI cases such as South Carolina. However, many states (including Illinois) impose technology surcharges against defendants convicted in DUI/DWI cases, where funds are given to municipalities specifically for the purchase of such equipment. Can this case be used in those instances?


Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

OWI Appeal - Wisconsin Video Can't Beat Judges Eyes

In State of Wisconsin v. Walli, Slip Copy, 2011 WL 1775995 (Wis.App.), an officer equipped with an in-squad video camera stopped the defendant for crossing the centerline. The cop claimed the video accurately established what happened. A review of the tape by the parties and the judge presented differing views of whether the driver crossed the centerline. On appeal, the appellate court first needed to determine what standard of review should be applied to video evidence - 'de novo' or 'clearly erroneous'. "We therefore decide that when evidence in the record consists of disputed testimony and a video recording, we will apply the clearly erroneous standard of review when we are reviewing the trial court's findings of fact based on that recording." The court left for another day the issue of what standard applies when the ONLY evidence is a video.

Since a blind justice may defer to the trooper instead of a video, the court refused to rule in favor of the defendant. "In conference, we viewed the video recording from Munnik's squad car and conclude that the trial court's finding that Walli crossed the center line is not clearly erroneous."

NOTE: Given the need for the court to decide the standard on review here, it is obvious to this writer that the decision about whether the video supported or contradicted the cop was not unanimous.


Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Appeal - Destruction of Video OK Say Mississippi

In Ellis v. State of Mississippi, --- So.3d ----, 2011 WL 1486610 (Miss.App.), NCDD members Vic Carmody, Kevin Stewart, and Lance Mixon appealed the defendant's conviction, based in part on the issue of whether the circuit court erred in failing to grant a verdict of acquittal because the State failed to preserve video evidence from the traffic stop.
The defendant was arrested on January 14, 2009. On February 2, 2009, Ellis's attorney sent a letter to Patrolman Conner citing Mississippi Code Annotated section 63–11–15 (Rev.2004) FN3 and requesting eight items, one of which was “the video, if any, taken by the officer of the test or tests.” By the time of the circuit court trial, Ellis had converted this request for any video of alcohol testing by the officer to mean the trooper's memory card of Ellis's traffic stop. Patrolman Conner did not supply the memory card to Ellis. Patrolman Conner testified that if there was nothing “extraordinary about the stop and nothing goes on,” he does not keep the memory card of each traffic stop. Patrolman Conner said there was no requirement that he keep the card of each stop and that he routinely erased the memory card in order to record future stops. He stated: “When it fills up, you've got to get rid of it where you can video your future stops.”

FN3. The section provides: “Upon the written request of the person tested, or his attorney, full information concerning the test taken at the direction of the law enforcement officer shall be made available to him or to his attorney.” Miss.Code Ann. § 63–11–15.

The appeals court summarized the applicable federal law as follows:

“A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed.” California v. Trombetta, 467 U.S. 479, 485 (1984) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). In Trombetta, a two-part test was developed for determining whether a defendant's due-process rights are violated in situations where physical evidence has been destroyed. First, the “evidence must possess an exculpatory value that was apparent before the evidence was destroyed.” Id. at 489. Secondly, the evidence must “be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. A bad-faith factor to the Trombetta test was added in Arizona v. Youngblood, 488 U.S. 51, 57–58 (1988). There the United States Supreme Court held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. at 58.

The Mississippi appeals court identified the 3-part due process test for destruction of video as follows:

"What has developed then is a three-part test to use when determining if a due-process violation has occurred when physical evidence has been destroyed. In order to prevail on his due-process claim, Ellis first must show that the digital memory card had exculpatory value that was apparent before it was erased. Secondly, he must show that he would be unable to reasonably obtain comparable evidence; and thirdly, Ellis must show that the State acted in bad faith by destroying the memory card."

As far as the exculpatory value was concerned, the court stated that:

"[W]e doubt that the memory card had apparent exculpatory value prior to its erasure. Patrolman Conner testified that the digital camera did not activate until he turned on his blue flashing lights to initiate the actual stop. It would not have shown any actions like the way Ellis was driving prior to the stop. It might have shown the actual stop. However, any exculpatory value of the events following the stop is significantly reduced by Ellis's own admission that he was drinking and driving and that he had been consuming alcohol earlier in the day at the duck hunt and that he refused the field sobriety test and the Intoxilyzer test."

As far as the bad faith element was concerned, the appeals court wrote:

"We can find no bad faith on the part of the State in the destruction of the card. Ellis's attorney sent the trooper a letter requesting “the video, if any, taken by the officer of the test or tests.” However, by this time the memory card had been erased. Patrolman Conner explained that the card was erased through the normal process used by the trooper of erasing and recording over the digital camera's memory card. Ellis said that unless he determines that there is something unusual about a stop, he simply records over each memory card. He further testified that there was no rule or regulation which required him as a trooper to preserve every memory card of traffic stops. He did not destroy the card of Ellis's traffic stop to circumvent its disclosure. In failing to preserve the card for Ellis, Patrolman Conner was acting “in good faith and in accord with [his] normal practice.” Trombetta 467 U.S. at 488 (quoting Killian v. United States, 368 U.S. 231, 242 (1961)). Further there is no evidence in the record of any “allegation of official animus towards [the defendant] or of a conscious effort to suppress” the memory card. Id.

Thus the court denied this ground on appeal. It should be noted that two interesting facts appear from this opinion: first, the request for video was not received until AFTER it had already been destroyed. If the destruction (however innocent or inadvertent) had occurred after the request was received, the outcome may have been different (as it has been in other opinions).

Second, the appeals court failed to address the applicability of Mississippi Code Annotated section 63–11–15, which arguably required preservation of this video independently from the due process clause. Some states have found that a destruction of a video, while not a violation of the due process clause, was still sanctionable for violating state discovery rules.


Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Appeal - Illinois Suspension Reversed Due to Video 'Destruction'

In People of Illinois v. Aronson, --- N.E.2d ----, 2011 WL 941306 (Ill.App. 2 Dist.), the arresting officer's video of the defendant was 'lost' during a technical transfer or download of the video from the squad car to a disc for the court. According to the prosecutor:

“[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."

Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!