Criminal Defense, DUI, Legal Blog

DUI Property Damage – Exculpatory Evidence

An interesting DUI with Property Damage case from Broward was decided recently by the 4th District Court of Appeal. There, the Court had to decide the issue of what remedy, if any, is available to a DUI defendant where the police fail to preserve video evidence of a DUI investigation.

In that case, the Defendant was arrested for Driving Under the Influence with Injury and Property Damage. During the DUI investigation, the sheriff’s office had a DUI Task Force deputy conduct roadside sobriety exercises (such as the Walk and Turn exercise, the Finger to Nose exercise, and One Leg Stand exercise). The deputy was recording the exercises on his in-car camera. However, after a few moments, the camera’s view of the defendant performing the exercises was obstructed by condensation that had built up on the windshield as a result of the air conditioning being on in the police car. The deputy testified that he knew the fogging could happen (and routinely happens when it is hot and muggy outside), but he failed to check the camera to make sure it properly recording. Therefore, the remainder of the exercises was not able to be seen on the video. The defendant filed a motion to dismiss or to exclude the evidence, arguing that the sheriff’s office essentially destroyed exculpatory evidence (or, evidence that would have been helpful to the defendant).

The Trial Court dismissed the charges, finding that the sheriff’s office failed to follow their standard operating procedures by failing to properly maintain the video camera and ensuring that the proper recording occurred. The State appealed the case. 

The appellate court reversed the dismissal, finding that there were other less severe sanctions that the trial court should have entered to rectify the prejudice caused to the defense by the lost recording. For example, the court could have simply excluded any evidence pertaining to the roadside exercises and an instruction to the jury that they may infer that the lost evidence is exculpatory.

In DUI cases, there are possible defenses. In the case above, the defendant argued that the improperly recorded video would have showed him doing well on the exercises, thereby helping his defense. However, because the recording was damaged, the jury would never get to see the evidence that the defendant believed would help him. In that case, if the court excludes the evidence of the roadside tasks, such as all of the video and the officer’s testimony about how the defendant performed, the State Attorney will likely have a much more difficult time proving to the jury that the defendant was driving under the influence.

Driving Under the Influence in the State of Florida can have serious consequences, including jail time, probation, driver’s license suspension. Anyone arrested for a DUI should contact a Criminal Defense Attorney to explore their defense options.



Casey Reiter is an associate attorney at Stuart R. Manoff & Associates, P.A. in West Palm Beach, Florida, practicing in the areas of Criminal Defense and Marital Law.

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