Video Evidence in a California DUI Case

Posted by Jon Ibanez on June 21st, 2018

No longer are the days where it was the cop’s word against the driver’s word about what exactly happened when the cop pulled the driver over on suspicion of driving under the influence. Fortunately, video evidence is becoming increasingly available in California DUI cases to confirm or refute the facts of the case.

Mobile video and audio recording systems (“MVARS”), often referred to as “dash cams,” were first used by law enforcement in the late 1980’s in Texas to keep law enforcement safe in remote rural areas. Back then, the camera was mounted on a tripod and the footage was recorded on a VHS cassette. Remember those? This necessarily meant that they were big, bulky and expensive. As a result, law enforcement agencies did not begin using dash cams regularly until the technological efficiency of dash cams increased, and price decreased in the late 2000’s. This is not to say that all agencies use them, because some still do not.

If, however, a patrol car has one, it may help officers gather evidence that a driver was driving under the influence as well evidence that a driver may not have been driving under the influence.

Dash cam footage is objective. An officer’s perception and recollection of the event unfortunately are not. Unlike a police report which is written hours after the DUI stop occurred (and well after an officer’s memory begins to fade), a dash cam records the events as they occur.

Law enforcement needs probable cause of a traffic violation to initiate a traffic stop, which is usually the first step in the DUI investigation process. Absent probable cause, a driver cannot be pulled over. Unfortunately, many officers fabricate the probable cause for stop, claiming that a driver never used a blinker, or they were swerving, or they ran a stop sign, so on, so forth. The dash cam, however, can show that there was no probable cause for the stop. It can show that the blinker was used, there was no swerving, and the driver did stop at the stop sign.

Even in agencies that use dash cams, some officers are finding their own ways to circumvent the transparency that the dash cam provides.

More often than not, at least in my experience, officers will take the driver out of the camera’s view to perform field sobriety tests. The officer will then write up their police report claiming that the driver “failed” the field sobriety tests providing little or no explanation as to why they failed.

Hopefully, this will soon be a thing of the past as more law enforcement agencies are beginning to use body cameras rather than or in addition to dash cams.

A body camera would serve to provide first-hand evidence to support officer claims that a person was, in fact, driving drunk. If an officer justifies a DUI arrest by claiming that an arrestee had slurred speech and bloodshot, watery eyes, the footage would verify the officer’s claims. If an officer determines that a person failed field sobriety tests, the footage from the body camera could support the officer’s interpretation of the person’s performance.

What if a patrol car doesn’t have a dash cam and the officer doesn’t have a body cam? Can you or someone else record officers during a DUI stop?

I don’t know anyone who doesn’t have a smartphone with a camera on it. If you, a passenger, or some other third party have a camera, such as a smartphone camera, readily available, you can record law enforcement performing their duties in public. The First Amendment protects the right to discuss the government, the right to free press, and the right to public access of information. And the courts are fairly unanimous that citizen journalists are protected just as much as members of the press. This includes the right of citizens to record officers performing their duties in public as long as the citizen isn’t recording officers surreptitiously, doesn’t interfere with the officer, or doesn’t break the law while recording.

Whether it comes from a dash cam, a body cam, or a smart phone, video evidence provides transparency during DUI stops. Transparency means finding the truth, which is what should be at the heart of every DUI case. Unlike officers, video footage can’t lie.

 

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