A Lost DUII Video is a Violation of Due Process

This wikilog article is a draft, it was not published yet.

by: Eder.ben • December 20, 2011 • no comments

In most of my driving under the influence cases the total evidence put on by the state is the police officer's testimony and a breath or blood test. Occasionally, the state has video or audio of the stop, including the field sobriety tests. Frequently though, the video or audio evidence is "lost" due to faulty recording devices, downloading errors, mistake or possible destruction. In every case where the audio or video recording has been "lost," it is important to recognize that the lost evidence is a violation of Due Process. Even if the loss was due to a mistake. The case to know in this area is State v. Zinsli, 156 Or App 245 (1998). The only defense hurdle in Brady cases is that the defense needs to establish that "some" evidence would have been favorable. This turns out to be much easier for DUII videos than in the usual lost evidence situation. In Zinsli, the defense met their burden by using the police report and cross examination to show that some of the field sobriety tests went well for the defendant. The defense could also call the defendant or other witnesses to testify about the defendant's speech, statements, physical appearance or actions.

In Zinsli, the state unintentionally lost a video of the defendant's performance on field sobriety tests. The defendant in Zinsli passed some field sobriety tests, but also submitted a breath sample over the legal limit. The field sobriety evidence was on the lost video. The Court explained why the lost video violates the Due Process Clause:

"As relevant here, the Due Process Clause of the Fourteenth Amendment1 guarantees for a criminal defendant access to evidence in the state's possession that 'is materiel either to guilt or to punishment. . .' Brady v. Maryland, 373 US 83, 87, 83 S Ct 1194, 10 L Ed 2d 215 (1963). To support a claim of denial of due process on the ground that constitutionally material evidence was lost, the defendant must make some showing that either the state acted in bad faith in failing to preserve the evidence or that the evidence sought to be discovered will be favorable…Where the state has not acted in bad faith, the defendant must show that the claim of favorableness is genuine, not speculation…and that comparable evidence cannot be obtained 'by other reasonably available means.'" California v. Trombetta, 467 US 479, 489, 104 S Ct 2528, 81L Ed 2d 413 (1984). Id. at 252… "In general, the prosecution of a DUII case depends heavily on the opinion of the arresting officer in determining whether a defendant's 'mental or physical faculties were adversely affected * * * to a noticeable or perceptible degree.' State v. Gaylor, 19 Or App 154, 163-64, 527 P2d 4 (1974). Here, in the absence of the videotape, a jury would have only [the arresting officer's] interpretation of defendant's performance of the FST's, demeanor, appearance and speech patterns, which, as noted, were to some extent not noticeably affected by alcohol. Of course, defendant may, but does not have to offer his own version of the events to rebut [the arresting officer's] conclusions and the intoxilyzer results. However, defendant's testimony is not an acceptable substitute, because defendant's testimony carries the risk that the jury will view that testimony as extraordinarily self-serving, whereas the risk is not present in the videotape evidence. Accordingly, the videotape evidence is unique because it would provide defendant with an objective video replay of the events from which a jury could draw its own conclusions….[the replay of the video] would have given defendant a unique opportunity to permit the jurors to form their own opinions as to defendant's intoxication level, defendant is not able to obtain comparable evidence from [the police officer's testimony]." Id. at 253 and 254.

Although the videotape was lost, the proper remedy was not suppression of the related evidence because some of the defendant's performance was exculpatory. The Court explained:

"The defendant may wish to use that evidence in his defense and because decisions of trial strategy should be left to the discretion of the advocate, we apply a discretionary suppression remedy. On remand, defendant may choose whether he wants the jury to hear evidence of his performance on some, all or none of the [field sobriety tests]." Id. at 255.

Zinsli allows the defense to choose what evidence from the video or audio is admissible as long as some of the lost evidence would be favorable for the defense.