dui, failure to preserve evidence, Motion to Dismiss, Motion to Suppress, Video

Playing Video Games Cost DUI Cops Big Time – Motion to Dismiss Granted

dui, failure to preserve evidence, Motion to  Dismiss, Motion to Suppress, Video,
Motion to Dismiss Granted

Motion to Dismiss Granted


“the Deputy acted in bad faith by failing to follow the policy of the Sheriff’s Office when the Deputy had the ability to video record the field sobriety tests and failed to do so” 

We have previously noted that failure to preserve evidence in a DUI case can be a defense. See http://www.dui2go.com/p/dui-attorney-tampa-home.html .  One Florida county we frequently have appeared in has become notorious for “losing” videos of suspects.

Sample Video Policy Policy Manuals

Here is part of a typical Hillsborough County / Tampa Bay area law enforcement DUI Video Procedure Manual . Here is the Video Procedure Manual used by the Florida Highway Patrol.

A jury may be instructed that the police failure to preserve evidence is misconduct. See http://www.centrallaw.com/destruction-of-evidence-jury-instruction-criminal-case-rare-ruling/  Typically, a Motion to Suppress or Dismiss similar to the Motion we filed below can help a Judge find police misconduct for which the State will be penalized.

Here is a typical Field Sobriety Exercise Video from a Tampa DUI Traffic Stop


“The trial court ordered all evidence of field sobriety test 
results be suppressed as a 
sanction for the failure to record the FSTs.”
Here is a Motion from a recent case where the cops played games with the video:

SAMPLE MOTION TO SUPPRESS OR DISMISS

1. The Defendant, XXXXXXXXXX,  by and through his undersigned attorney and moves this Court for an Order dismissing this case pursuant to State v. Powers, 555 So.2d 888 (2nd DCA 1990) and as grounds therefore would state:
2. Deputy Lester stopped XXXXXXXXXX. Deputy Tiburcio conducted the DUI investigation. In the course of completing the investigation, no video was taken of the scene investigation. 
3. The Hillsborough County Sheriff’s Office is the 4th largest Sheriff’s Office in the United States and was the 1st Sheriff’s Office in the state to be accredited and the 1st in the nation to be re-accredited by the Commission on Law Enforcement Accreditation, Inc. (CALEA).
4. Most agencies including HCSO, FHP, and TPD now have this video policy to remain CALEA Commission on Accreditation for Law Enforcement Agencies certified. 
AGENCY STANDARD OPERATING PROCEDURE. 
a. The in-car video/audio system will automatically activate and begin recording when the vehicle’s emergency lights and/or siren are activated. At their discretion, officers may also manually activate the system to begin recording without activating the emergency equipment. All traffic stops, police pursuits, “code one” situations, and DUI investigations will be recorded.
b. Failure to activate the in-car video/audio system as outlined in this SOP, properly retain and store tapes, or the abuse or misuse of the in-car video/audio system may result in disciplinary action.
5. None of the deputies, presumably with camera-equipped cell phones made any effort to record this DUI investigation.
6. The Defendant’s due process rights have been violated. When evidence is incomplete rather than requiring the Defendant to vindicate herself through the trial process, the appropriate remedy is dismissal based upon the Defendant’s inability to demonstrate that her normal faculties were not impaired on the evening of his arrest by showing a recording containing the required sound to the jury. 

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO SUPPRESS OR DISMISS

 
Courts recognize that videotape evidence is unique objective evidence for jury to consider. Ordinarily, a DUI prosecution depends heavily on the opinion of the arresting officer. A videotape can serve to teach the officer’s testimony on issues of material to question of impairment. Moreover and refusal case like XXXXXXXXX’s, physical signs of impairment are of utmost importance.  See Florida v. Davis, 14 So. 2d 1130 (4th DCA 2009). 
In Davis, the recording was lost during the transfer of the recording from the hard drive to digital video disc. On appeal the Fourth District reversed the trial court’s dismissal of the DUI as a sanction for the loss of the tape. The Davis court agreed with the defendant that simply not informing the jury that the tape ever existed was an inadequate solution for the failure to preserve critical evidence. Id. at 1133.  The court remanded and suggested other possibilities including precluding the state from utilizing the roadside sobriety tests were possible sanctions. Id.  In addition the Fourth suggested the trial court could instruct the jury that they may infer that the lost evidence is exculpatory.  Id.
The Second District upheld a circuit court’s reversal of a dismissal sanction where the video made by a digital video camera during a traffic stop was lost in the attempt to transfer the data to DVD.   Bennett v. State, 23 So. 3d 782 (2nd DCA 2009).   The court reversed for the county court to consider whether the evidence was material exculpatory evidence or only possibly useful.  Case law is not clear on whether the State or defendant  has this burden of proof.  Id. at 792.
This case is a little different. Here, law enforcement made an executive decision to begin patrol with equipment that could not record a full and fair rendition of the investigation despite their own policies requiring them to do so. 
Law enforcement made a choice to limit the nature of evidence they obtained and violated XXXXXXXXXX’s due process right to complete evidence.  The burden on the state to have fully functional equipment is not an onerous one.  The HCSO and CALEA Certification contemplate that complete recording should and will be taken.  
Alternatively available video equipment was not utilized – the deputies’ cell phones.  The results are incomplete evidence that could contain exculpatory fruit.  Because the deputies chose to enter the field without complete video recording capability, the remedy of suppression of all investigatory information that would have been completely recorded is reasonable. 
The defense requests to Court to enter an Order that:
The state will be precluded from having the officers testify to what was seen or heard after activation of the mobile video/audio recording should have occurred and no later than the activation of the emergency warning devices in the police cruisers.
The state will be precluded from using or eliciting testimony about roadside sobriety tests.
The state will be precluded from eliciting testimony regarding refusal to submit to a breath test.
The jury will be instructed that they may infer that lost evidence is exculpatory.
The jury will be instructed that missing video contained information detrimental to the State Of Florida’s case.
The jury will be instructed that missing video would not contain any evidence incriminating the defendant.
WHEREFORE, Defendant, XXXXXXXXXX, respectfully requests this Honorable Court to suppress all evidence collected from the time the video should have run, including the alleged driving pattern.

RECENT DUI DISMISSED CASE EXCERPTS

What is exculpatory evidence in a DUI case?

“the Deputy testified that Appellee’s performance on two parts of the FSTs would be considered exculpatory evidence. The Deputy testified on cross-examination that although Appellee exhibited signs of impairment based on his performance of four of the FSTs, Appellee performed well on two of the exercises, and therefore the trial court found a video-recording of the tests would be considered exculpatory evidence.”

Do cops have an obligation to videotape a DUI arrest?

“Law enforcement does not have a constitutional duty to perform any particular tests. Certain duties arise, however, once a policy of gathering evidence through certain tests is established . Once law enforcement has gathered and taken possession of evidence, a duty of preservation in some form attaches.” 

“the evidence was exculpatory because the Deputy testified that Appellee performed well on two of the FSTs, and that the opportunity to cross-examine the officer was not the equivalent of a video-recording of the FSTs.”
“ the trial court found the Deputy acted in bad faith by failing to follow the policy of the Sheriff’s Office when the Deputy had the ability to video record the field sobriety tests and failed to do so without sufficient justification , and again dismissed the charges. “
“the Deputy’s justification for not recording the investigation was insufficient, when it was the policy of the Sheriffs Office at the time to video-record field sobriety investigations.”
“The Deputy testified on cross-examination that although Appellee exhibited signs of impairment based on his performance of four of the FSTs, Appellee performed well on two of the exercises, and therefore the trial court found a video-recording of the tests would be considered exculpatory evidence.”

What can be done when a DUI Video is lost or destroyed?

“The trial court ordered all evidence of field sobriety test results be suppressed as a sanction for the failure to record the FSTs.” 

COMPLETE COURT OPINION IN FLORIDA DUI VIDEO PRESERVATION OF EVIDENCE CASE

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY
APPELLATE DIVISION
STATE OF FLORIDA,
Appellant,
v.
DUSTIN FUNDERBURG,
Appellee.
On appeal from County Court, Honorable Robert P. Cole,
Office of the State Attorney, for Appellant,
Randall C. Grantham, Esq., for Appellee .
UCN: 512016CF00455AOOOES
Appeal No: CRC1600455CFAES
L.T. No: 11•1010-XGBT-ES
I
ORDER AND OPINION
The trial court did not err by suppressing evidence of field sobriety test results as a sanction for the arresting officer’s failure to comply with the policy of the Pasco Sheriff’s Office that DUI investigations be video-recorded . The order of the trial court is affirmed.
STATEMENT OF THE CASE AND FACTS
This case is before the Court for the third time on appeal. Appellant was arrested for DUI in violation of § 316.193, Fla. Stat. , on December 14, 2011 . At the first trial had in the matter, the trial court granted Appellee’s motion to dismiss based on the failure to video-record the DUI investigation , which the court found to be a violation of due process as having deprived Appellee of exculpatory evidence, and that the Deputy’s justification for not recording the investigation was insufficient, when it was the policy of the Sheriffs Office at the time to video-record field sobriety investigations. State appealed the June 4, 2012, order of the trial court. This Court found the trial court applied the incorrect legal standard when granting the motion to dismiss, and remanded the cause for further proceedings, directing the trial court that the applicable legal standard required a finding of bad faith to support dismissal of the charges. On remand, the trial court found the Deputy acted in bad faith by failing to follow the policy of the Sheriff’s Office when the Deputy had the ability to video•record the field sobriety tests and failed to do so without sufficient justification , and again dismissed the charges. State appealed the dismissal and this Court reversed the trial court’s order, finding the record insufficient to support a finding that the Deputy acted in bad faith . 
On remand a hearing was held on Appellee’s motion to determine sanctions short of dismissal. The trial court ordered all evidence of field sobriety test results be suppressed as a sanction for the failure to record the FSTs. State appeals the order, alleging it was error to suppress the evidence and that Appellee was not entitled to any sanction.  
STANDARD OF REVIEW  
“Appellate review of a motion to suppress involves questions of both law and fact” Rosenquist v. State, 769 So. 2d 1051 , 1052 (Fla. 2d DCA 2000). This Court reviews the trial court’s application of the law to the facts of the case pursuant to a de novo standard . Id.; Ornelas v. U.S. , 517 U.S. 690, 698 (1996) ; State v. Petion , 992 So. 2d 889, 894 (Fla. 2d DCA 2008). Findings of fact by the trial court are reviewed for “clear error,” and the Court will give deference to inferences drawn from those facts by the trial court and law enforcement officers. Ornelas, 517 U.S. at 699. See Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002).  
LAW AND ANALYSIS  
Appellant contends that the unpreserved evidence was not materially exculpatory, and therefore Appellee was not entitled to any remedy and it was error to suppress the evidence in this case. The trial court previously held in its February 3, 2014, order, that the evidence was exculpatory because the Deputy testified that Appellee performed well on two of the FSTs, and that the opportunity to cross-examine the officer was not the equivalent of a video-recording of the FSTs. 
“When determining whether a defendant’s due process rights have been violated by the State’s destruction of or failure to preserve evidence, a court must first consider whether the missing evidence was ‘materially exculpatory’ or only ‘potentially useful. “, State v. Bennett, 111 So. 3d 943, 945 (Fla . 2d DCA 2013). Failure to preserve evidence “that is merely ‘potentially useful,’ posing only some likelihood of exonerating a defendant,” constitutes “a denial of due process only when law enforcement acts in bad faith.” Id. (citing California v. Trombetta, 467 U.S. 479, 488 (1 984); Arizona v. Youngblood, 488 U.S. 51, 56-58 (1988)) . To be materially exculpatory, “evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Trombetta, 467 U.S. at 486-87. 
The trial court relied on State v. Davis, in suppressing the evidence, in which the Court held that dismissal was too harsh a sanction where there was no finding of bad faith , but the lost evidence was “material exculpatory evidence,” and therefore “the loss of such evidence is a violation of the defendant’s due process rights and the good or bad faith of the State is irrelevant. ” 14 So. 3d 1130, 1132 (Fla. 4th DCA 2009). In Davis, the Court remanded the cause to the trial court to consider sanctions short of dismissal to address the loss of evidence, noting that possible sanctions may include precluding State from presenting evidence of the roadside sobriety tests. Id. at 1133. 
In its previous order, this Court relied on State v. Powers, 555 So. 2d 888, 889 (Fla . 2d DCA 1990), in which the Court held that “the appellees’ due process rights were not violated by the sheriff’s department not video taping the appellees’ performance during field sobriety testing .” State contends that based on this analysis, lesser sanctions are not appropriate absent a finding of bad faith , because this case does not involve lost or unpreserved evidence, and that Appellee was not entitled to any remedy based on the failure to video-record the FSTs. 
Appellee responds that the trial court’s order is entitled to a presumption of correctness, and that the trial court found the Deputy’s testimony was not credible. Appellee contends the decision to impose sanctions was within the trial court’s 
discretion and that the trial court did not abuse its discretion in this case. See Carr v. Reese, 788 So. 2d 1067 (Fla. 2d DCA 2001); Turner v. Anderson, 376 So. 2d 899 (Fla. 2d DCA 1979). 
In Powers, the express policy of the sheriff’s office was not to video record performance tests, whereas in the instant case the Deputy acted in contravention of the Sheriff’s Office express policy of video-recording FSTs. See Powers, 555 So. 2d 888. In Powers the Court held: 
Law enforcement does not have a constitutional duty to perform any particular tests. Certain duties arise, however, once a policy of gathering evidence through certain tests is established . Once law enforcement has gathered and taken possession of evidence, a duty of preservation in some form attaches. 
Id. at 890 (citing Youngblood, 488 U.S. 51). Further, 
Whatever duty law enforcement has to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. 
Id. at 891 . See Trombetta, 467 U.S. 479. The trial court found that the Deputy testified that Appellee’s performance on two parts of the FSTs would be considered exculpatory evidence. The Deputy testified on cross-examination that although Appellee exhibited signs of impairment based on his performance of four of the FSTs, Appellee performed well on two of the exercises, and therefore the trial court found a video-recording of the tests would be considered exculpatory evidence. This Court will not reverse the factual findings of the trial court absent a showing of clear error. Pagan, 830 So. 2d at 806. The trial court’s finding on this issue is supported by the Deputy’s testimony in this case. The Court finds it was not error for the trial court to suppress the evidence of the FST results in reliance on Davis, 14 So. 3d at 1132. The order of the trial court is affirmed . 
CONCLUSION 
It was not error for the trial court to suppress the evidence in this case based on the Deputy’s conduct in failing to record the field sobriety tests. The order of the trial court is affirmed .  It is ORDERED AND ADJUDGED that the order of the trial court is AFFIRMED. DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida This ____  of May, 2016. 
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