Highly Experienced DUI Law Firm
As technology has continued to advance, so too has the prevalence of videotape evidence in NJ driving while intoxicated cases. It is now commonplace for police patrol cars to be fitted with video systems, commonly referred to as mobile video recorders (i.e. “MVR”), that can record DWI events in or around the vehicle. In addition to the use of video, all state police officers on the road in the state, as well as many municipal law enforcement, wear microphones that record audio. While one might believe that video and audio evidence is more valuable to the prosecution in driving while intoxicated charges, we find that the converse is actually the case. The following is a discussion of some of the important aspects of audio and video usage in the defense of NJ DWI charges.
Inherent Limitations of Audio & Video
Both video cameras and audio microphones have limitations on their effectiveness insofar as they must be activated at the time of the encounter to be effective. Most video records are automatically activated when the lights of a police vehicle are put into operation and are not permitted to be deactivated until a DWI investigation is complete. Notwithstanding this protocol, the camera and mic can only record that which the lense observes and the microphone can pick up. If the camera is not pointed in the proper direction or is obscured, as is the case in most state police cases (i.e. trooper typically positions his car behind the suspect’s and then conducts field tests in front of the suspect’s vehicle thereby blocking viewability of the testing), the video cannot record the events.
Loss or Destruction of Videotape
Under certain circumstances, loss or destruction of the videotape evidence can result in dismissal of a DWI or some alternative relief. Whether the prosecution should be penalized in such a manner largely hinges on whether the loss or destruction was intentional, the video was material to the defense, and the loss resulted in prejudice to the defendant. Dismissal is warranted where the loss is intentional and where, although unintentional, the video was both material and favorable to the defendant (i.e. accused was prejudiced by the loss).
Failure to Videotape the Defendant
If the police officer does not videotape or audiotape an encounter, there really is no relief to the defense absent a showing that this was intentional. The reason for this lies in the fact that the law imposes no duty on police to tape a suspect.
Discovery of Video & Audio Evidence
The defense is always entitled to discovery of both audio and video records made at the time of a police encounter. Where the state fails to provide the evidence, the defense is entitled to appropriate relief. While it might seem self-evident that an existing video or audio tape would be provided, police records can be derelict in providing the items. This can provide interesting opportunities for the defense.
If you would like to discuss a driving while intoxicated offense with one of our experienced DWI lawyers, give us a call. Attorneys are available 24/7 and initial consultations are always without charge, so do not hesitate to give us a call at 855-450-8310 if you require assistance.
