Missing Video Evidence
Many police department vehicles, especially in the greater Portland area, are equipped with video and audio recording equipment. Some departments, notably the Oregon State Police, equip their officers with lapel microphones to record conversations that occur on the side of the road, away from the car. Often DUII cases come down to officers opinions about the presence of signs of intoxication. A blood alcohol content, which may be found after taking a breath test, may be one sign of intoxication, but there are many many more that can be seen by anyone and are, generally, much more subtle. An officer may say, I believed Mrs. X to be intoxicated because her eyes were bloodshot and she had a sway when she stood. An officer will often do field tests and note things as signs of intoxication, such as stepping out of line during the Walk and Turn or raising one’s arms more than 6 inches during the One Legged Stand.
As jurors, it is our job to determine the facts. What really happened and what is just opinion? If that is the case, wouldn’t it benefit all to watch a video and audio recording of the event itself? Wouldn’t it be helpful to watch those field tests, to listen to the defendant’s speaking, to watch for that sway? It most certainly would and this is why it is perpetually frustrating that, despite all this, audio and video is virtually never available in DUII cases. The reason is usually, I forgot to turn it on or the recording was corrupted/can’t play or I lost it. Often this brings out a feeling of helplessness in someone accused of a DUII. It doesn’t need to be so, if you use a Portland DUII attorney who knows that this is a violation of your due process rights, even if the recordings were genuinely lost by mistake.
The courts declared it a violation of due process in State v. Zinsli, 156 Or App 245 (1998). Your defense attorney will need to establish that ”some” evidence of this recording would have aided in your defense. For the reasons mentioned above, and more, how could this not be the case? In Zinsli, the state unintentionally lost the video of the field sobriety tests, but the court held that it doesn’t matter if it was a simple mistake because so much of the case is based on opinion and a video would help the jury aid in interpreting those opinions.
Having an experience Portland DUII attorney on your side in these situations is vital, because the court notes the remedy is not simply to toss it all out. Some of the evidence may be exculpatory, so the court allows the defense to choose what evidence from the video or audio is admissible and to what they object. This is not only a huge decision, but it may have very significant ramifications for your case. If you or someone you know is facing a possible DUII conviction, give us a call today and let us be there with you, in your corner.
