Most police agencies in Michigan use dash-cams to record citizen interactions. This means that if you’ve been arrested for DUI/OWI in Michigan, there is an excellent change that a dash-cam video exists.
Every drunk driving arrest is different, and not every video recording is the same. However, this video may capture all the interaction you had with the police, beginning with an audio of the officer’s first words to you as you were sitting in your car after being stopped. Next, the video may show you stepping out of the car and then walking to the rear and waiting for the officer to give you instructions on the field sobriety tasks. If the officer asked you to state the alphabet, count backwards, pick a number, etc., then your responses these requests may also be captured on the audio portion of the video recording. Also, it may be possible to determine how well you performed on the walk and turn and the one leg stand tasks. Finally, a careful observation of the video recording will allow your attorney to determine if the officer followed his or her training regarding these tests, and particularly, if the officer properly administered the horizonal gaze nystagmus test.
This video recording could be the most important piece of evidence in your case, so it is important to be sure that your attorney requests that it not be destroyed and that a copy of it be provided to you. A failure to do so could result in the video recording being destroyed. Because many departments have policies regarding how long video records are kept, a failure to make a timely request could also result in the destruction of this important evidence.
When viewing a dash-cam video your attorney will be thinking about many different things, including; (1) did the officer follow his/her training while investigating your case, (2) how well did you perform, and how does your observable performance differ from what is described in the officer’s narrative police report, and (3) what will a jury think when viewing this video and particularly, do you look impaired or intoxicated?
Because a video recording is the most objective and dispassionate piece of evidence available, it is essential that your attorney obtain and review it early on in your case. The information in the video may serve as the basis for pretrial motions to dismiss or supress, and even if no motions are appropriate, the video will almost certainly serve as the foundation of your lawyer’s trial preparation.
Unfortunately, if the police destroy your video, you may be without legal recourse. In the 2006 opinion of People V. Greenfield, the Michigan Court of Appeals ruled that the police are not required to produce video recordings. This case did not involve a dash-cam video recording but instead involved a recording of the administration of a DataMaster breath test. In Greenfield the defense attorney requested a copy of the the booking room video where the DataMaster device was located. The video was destroyed after the request, and on this basis, Judge Lisa Asadoorian of the Rochester District Court suppressed the breath test results, meaning Judge Asadoorian precluded the prosecutor from being able to use the results at trial. The Oakland County Prosecuting Attorney appealed this decision, and ultimately, the Michigan Court of Appeals said in their opinion that:
Because the videotape does not fall under any category of mandatory discovery under MCR 6.201, and because defendant made no showing of good cause, the district court erred as a matter of law in ordering the production of the tape, it abused its discretion when it suppressed the DataMaster test results as a sanction for violating its erroneous discovery order, and the circuit court repeated both errors.
Looked at from a Due Process standpoint, this is a terrible opinion. Judge Asadoorian was exactly right in ordering the production of the video, and in ordering the suppression of the breath test as a sanction to the police for not providing it. The Circuit Court was also correct in agreeing with Judge Asadoorian. Nevertheless, the Court of Appeals opinion stands, and while this case involved a booking room video and not dash-cam video, and may therefore be distinguishable, it nevertheless shows the importance of an aggressive discovery practice on the part of the defense attorney.
As an interesting side-note, the defense attorney in the Greenfield case was attorney Kirsten Nielsen Hartig who at the time was in private practice. Attorney Hartig later ran for judge and is now known as the Honorable Kirsten Nielsen Hartig of the City of Troy District Court.