Use of Videotape in NJ DWI Prosecutions

Can the State Use Video Evidence in a DWI Case?

Any evidence that is material (probative of the defendant’s guilt or innocence) may be used in court unless an exception applies. Because video evidence in a DWI/DUI case tends to show whether or not a defendant was intoxicated, it will be admissible in most cases. In certain circumstances, discussed below, portions of the videotape may not be admissible.

Field Sobriety TestDWI Video is Material Evidence

Under New Jersey law, the prosecution (State) must not withhold material evidence that is favorable to the defendant. Withholding such evidence is a violation of a citizen’s Due Process rights. Often times, the accused drunk driver and police officer have a difference of opinion as to whether the driver passed or failed the field sobriety tests.

Typically, the standardized field sobriety tests are performed in front of the police officer’s squad car and are videotaped by its dashboard camera. If you have been charged with drunk driving, it would be beneficial to retain an experienced drunk driving attorney who will review the videotapes in detail if your testing and arrest was captured on video.

What if Police Didn’t Record My Field Sobriety Tests?

In New Jersey, police are not required to videotape a driver while conducting a field sobriety test. Therefore, if no video was taken, there is no relief available to the driver unless the police purposely neglected to provide video evidence after it was in fact captured.

How Can Videotapes Help or Harm a Defendant?

It is often helpful for a defendant to obtain copies of the videotape to show that a police officer may have been exaggerating the defendant’s hostility, or level of intoxication. In such cases, an attorney can present video evidence to help exculpate the defendant. If the videotape shows that the defendant was more sober or cooperative than the police officer claimed, then the charges may be downgraded or dismissed. However, if the videotape corroborates the officer’s testimony, it may be harmful to the defendant.

Is the Defense Entitled to Copies of the DWI Video?

If videotape was taken during a drunk driving arrest, the defense is always entitled to copies of the video. The prosecution is required to provide copies of the video if the defendant asks for it in his or her discovery requests. If the State fails or refuses to provide video, the defendant may be entitled to certain relief.

What if the Video Recording was Lost or Destroyed?

Sometimes, the prosecution may lose or destroy video evidence before it can be used against the driver. If the loss or destruction of the videotape evidence was intentional and resulted in prejudice against the driver, DUI charges may be dismissed if the video evidence was material to the case.  If the loss was merely accidental, it is unlikely that the court will dismiss the charges. In summary, if a tape is lost or destroyed, the defendant will have to show that the tape contains exculpatory evidence, cannot be replaced with similar evidence, and was lost or destroyed in bad faith.

Can a Defendant Get a Copy of the Video Before Hiring an Attorney?

Once the prosecution starts to bring its case against the defendant, the videotape of the sobriety test and arrest will be provided. At that time, the defendant will have the opportunity to purchase a copy and review the video evidence. The opportunity for such review is always provided.

Call Experienced Jersey Shore DWI Defense Lawyers

The law firm of Villani & DeLuca, P.C. has a significant amount of experience in defending against drunk driving and refusal charges in New Jersey. Field sobriety test trained attorney Carmine R. Villani, Esq. has represented hundreds of clients charged with DWI, DUI and refusal in his career. Call (732) 965-3350 today for a free initial consultation and a Villani & DeLuca attorney will discuss your charges, possible penalties and available defenses.

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