THE USE OF VIDEO EVIDENCE IN DUI ARRESTS

The use of video evidence in DUI arrests is becoming more prevalent as most law enforcement agencies throughout Michigan use mobile video recorders (MVRs) or dashboard cameras to capture traffic stops.

The traffic stops they are capturing oftentimes lead to arrests for drunk and drugged driving. Indeed, the internet is replete with videos of seemingly hapless people exhibiting various degrees of intoxication in failed attempts to perform field coordination tasks after a routine traffic stop.

Now, with a nod to advanced technology, some law enforcement agencies have added police body cameras to their “tools of the trade” in an effort enhance the scope of incriminating video evidence in DUI arrests during the stop, detention and arrest phases of DUI cases.

However, it is important to keep in mind that the police body cams and MVRs can also be a source of compelling exculpatory video evidence in DUI arrests when properly utilized by defense counsel.

Unlike most police officers, video evidence in DUI arrests is objective. Police body cams capture and record what is actually there to be seen. They record what occurs in real time without embellishment or other threats to objectivity.

The video evidence in DUI arrests serves as the counterpoint to the original incident reports that are routinely authored by police officers hours after the stop, detention and arrest and well after the officer’s memory of the events leading to the arrest begins to fade.

The on-board dash cam recording function varies from agency to agency. Some departments use digital video equipment that is constantly recording while others may feature either manual engagement or automatic engagement once the emergency overhead lights are activated. However, in most cases the dash cams record the suspect’s pre-stop vehicle operation, the actual traffic stop, the administration of any field sobriety tests, conversations between the officer and the suspect, and the arrest.

It is remarkable how often the video evidence in DUI arrests directly conflicts with the arresting officer’s incident report.

As a condition precedent to a legal stop, Michigan law requires that a police officer either witness a violation of the motor vehicle code or have “a reasonable articulable suspicion” that a crime was committed or is about to be committed.  These indicia of culpability are also referred to as probable cause.

Absent probable cause, a driver cannot be legally pulled over by law enforcement.

Unfortunately, it is not uncommon for officers to fabricate the probable cause for stop, claiming that a driver crossed the fog line, drifted repeatedly within the travel lane or disregarded a traffic control device. Video evidence, on the other hand, can demonstrate that there was no violation or probable cause for the stop. The MVR will objectively show how the driver operated the vehicle prior to the stop.

Once the stop is made and the officer makes personal contact with the driver, he or she invariably detects “the strong odor of intoxicants emanating from the vehicle”, observes the driver’s “bloodshot and watery eyes” and notices the driver’s “slow and slurred speech”. At least, that is what the officer writes in the incident report following the arrest. But the video/audio evidence may be used to question the accuracy of the officer’s written observations.

Before officers can arrest someone for OWI, they must have probable cause to believe that the driver was operating under the influence of alcohol or some other intoxicating substance.

How do they go about attempting to establish probable cause? Most officers rely on field sobriety tests, as unreliable as they may be. And although a person may perform well on the tests, it is not uncommon for officers to claim in their reports that the driver failed the tests. For example, in virtually every incident report the officer indicates that during the administration of the horizontal gage nystagmus test the suspect “exhibited lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation and onset of nystagmus prior to 45 degrees”.

However, the officer’s body cam may completely refute his or her description of the suspect’s performance by actually capturing the eye movements during the test. It may even expose flaws in the protocol used by the officer in administering the test.

Indeed, I recently defended a case where the officers claimed that my client failed the HGN test and exhibited all six clues. However, the officer’s body cam revealed that the claim was a complete fabrication.

In the hands of an experienced Michigan DUI defense lawyer the video evidence in DUI arrests may make the difference between a conviction and an acquittal or outright dismissal.

The important lesson is this: anyone arrested and charged with drunk or drugged driving must make sure that their attorney obtains a copy of all available video evidence

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