https://katzjustice.com/dwi-defense-with-video

Winning at trial with the smoking video

EXCERPT:

For defending criminal and DWI prosecutions, the defense early on needs to move to preserve and obtain video, audio and photographic evidence of and related to the incident.

At first blush, the criminal defense lawyer might ask whether it is better to try to make such evidence go out of sight and out of mind. In some rare instances that will be true. However, even if such evidence might be damning, the police officer’s recitation of events might be even more damning, whether through intentional or unintentional omission, memory lapse, intellectual weakness, perception handicap, distraction, tendency to accentuate the bad and minimize the good, exaggeration, recklessness with the truth, or outright prevarication.

Recently, I won a Virginia, General District Court DWI/DWI and refusal case at the arrest suppression argument stage, with great help from the incident video.

In this trial, the police officer stopped my client for speeding. Field sobriety tests were done. No preliminary roadside breath test was done (yes!). My client allegedly refused to take the Intox EC/IR II breath alcohol test at the jail.

Early on, I filed a discovery order — signed with my and the prosecutor’s mutual agreement — that included getting me any incident video. The prosecutor ended up providing me the police incident report — which is wise to do even though Virginia has no Jencks rule requiring that the police report be provided — and incident video.

On the one hand, my client’s behavior on the scene looked favorable in many respects, with an immediate and well-executed stop of the car in response to the police car’s emergency lights, generally good coordination, and clear speaking. However, some judges might have found at least probable cause to arrest when considering the speed, claimed odor of alcohol, my client’s admission to drinking, the officer’s claim of bloodshot and glassy eyes, and some issues following...