When Must Police Videotape Your DWI or DUI Arrest?

No Duty to Videotape DUI or DWI in New Jersey

In Ocean County and Monmouth County, New Jersey, there is no obligation for the police officer to create evidence by videotaping suspected drunk drivers. While videotaping equipment is widely available in both police squad cars and police stations, the law still does not require police officers to videotape the arrest or administration of the breathalyzer test. Rule 3:17 mandates the electronic recording of custodial interrogations for the most serious criminal offenses as listed in Rule 3:3-1(c)(1). These offenses are murder, kidnapping, aggravated manslaughter, manslaughter, robbery, aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, second degree aggravated assault, aggravated arson, arson, burglary, any crimes involving the use of a firearms, attempts to commit crimes involving firearms.

The loss or destruction of videotape evidence by the State prior to the trial of a defendant may constitute a due process violation requiring dismissal of the case. New Jersey has adopted the rule expressed by the United State Supreme Court in Brady v. Maryland which held that the withholding of material evidence favorable to a defendant is a denial of due process and the right to a fair trial. This rule applies regardless of the supposed good faith or bad faith of the prosecution.

Often clients ask what the distinction is between material evidence and non-material evidence. Material evidence is that which would tend to induce a reasonable doubt about the verdict or tend to exculpate the defendant. Thus, material evidence must possess an exculpatory value (to clear of guilt or blame) that was apparent before it was lost and which the defendant would be unable to reasonably obtain on his own.

In State v. Greeley, the court established three essential factors to be used in determining whether a due process violation has occurred when evidence has been lost, destroyed, or improperly suppressed.

  1. Whether there was bad faith or inconvenience on the part of the prosecution in the loss of the evidence;
  2. Whether the lost evidence was sufficiently material to the defense; and
  3. Whether the defendant was prejudiced by the loss of

Call an Experienced DUI/DWI Attorney

If you have been charged with a DWI or DUI you need to call an experienced New Jersey DWI attorney to protect your rights. Partner, Carmine R. Villani, Esq. has a wealth of experience in New Jersey criminal defense having served as municipal prosecutor and municipal public defender in numerous municipalities in Ocean County and Monmouth County throughout his 20+ year legal career. Contact the experienced NJ criminal defense attorneys of Villani & DeLuca, P.C. for a free initial consultation. Call 732-965-3350 today!