Missing Dash Camera Video in DUI Case: Officer's Testimony Kept Out of Court

What happens when a police officer should have video and audio from his dash camera available for trial, but the evidence is not preserved? This is not a question of an equipment failure, but a situation where an officer simply does not follow department policy and does not preserve a video. I litigated and won this case in York County recently in the context of a DUI case where the defendant was stopped for minor equipment violations after he turned to avoid a DUI checkpoint. Here is the decision.

My client was stopped for minor equipment violations after he (legally) turned to avoid a checkpoint. The officer who made the traffic stop engaged him briefly at the driver's side window, then had him get out of the car. A brief field sobriety test was administered, and my client was searched, had his keys taken away, was cuffed, and was transported 1/3 of a mile a way to the checkpoint. He was ordered to do more field sobriety tests there, and he gave blood. The blood test showed he was over the legal limit.

A major problem in the case was that the officer's version of events could not be confirmed or contested by the video and audio that his cruiser was equipped with. The dashcam system did not malfunction or fail to work -- the officer simply did not preserve the video (and that failure actually violated his department's policy).

There is a lot of talk about "body cameras" for police these days and whether they are good or bad. I find that video is useful for prosecutors and police far more than it is for the defense. Almost always, it shows police doing a good job.

That said, video evidence is not on the side of defendants or the police. It is on the side of the objective truth.

Also remember what would happen if a defendant had video of a crime and destroyed it: obstruction of justice and/or tampering with evidence charges would be filed. What's fair is fair.

Video is often incomplete. It can be frustrating when it misses something important or when it has a bad angle. But video doesn't have an agenda. It doesn't fudge or "stretch" facts. It isn't impaired by drugs, alcohol, or adrenaline. It is an objective, unblinking eye that is incredibly useful in sorting out competing versions of the truth.

What should courts do when video that should be there goes missing? That is what the court had to decide in this case.

This was a complicated legal and factual issue. The bottom line is that the arresting officer was not allowed to testify as a sanction for failing to preserve the video and having no legitimate excuse for failing to do so. As a result, my client was able to plea to a summary offense instead of the DUI. The result could have been different had there been an equipment failure or for any of a number of other factors.

I will absolutely agree that, despite the serious errors made on the video issue, the officer did remove a driver from the road who had no business being behind a wheel, and that made all of us safer. In criminal court, we all do our jobs and trust in the system to work. Even in a case like this where a defendant might win, the other side did something that was good and necessary. Ultimately, while we are on opposite sides of a case, we are not each others' enemies.

At the end of the case, it was encouraging that there is a meaningful remedy for a defendant when video is not preserved.  As video becomes more and more common, this issue is likely to come up again and again. I am very glad that the judge gave thorough and thoughtful consideration to the legal arguments on both sides and wrote this opinion to give guidance in this case, and, hopefully, others.

As a historical note, I litigated a similar issue for a defendant in 2012, but lost. The case was: Commonwealth v. Kenneth Leahy.  That decision is a useful "bookend" to this case.  Judge Renn made the decisions and wrote the opinions in each case, so he isn't being pro-defense or pro-police in these cases - he's making rulings based on the law and facts of each case.

Like video evidence, good court decisions are not pro-defendant or pro-police. They are pro "fairness". Fairness promotes truth, for both sides. I was very happy to help out my client in this case. I was also happy that this case helps to further define legally what is fair in cases in York County where video evidence is inexplicably missing.