Video Evidence In DUI Cases-When Video Evidence Is Not Disclosed To The Defense

For better or for worse, we live in an age where nearly everything is recorded. This is especially true with traffic stops, encounters with the police after traffic stops, and a driving under the influence of alcohol or drugs (DUI) investigation and arrest following a traffic stop. Police cameras provide audio and video evidence used to prosecute a driver for DUI.

Many police cars are equipped with dash mounted cameras. All police officers in Illinois will be required to wear body-worn cameras by January 1, 2025. 50 ILCS 706/10-15. All police stations have some video surveillance. Some police station surveillance videos also have audio of the events depicted in the video.

In Illinois, the State has an obligation to maintain and disclose all video and audio relevant to a DUI prosecution. The video of interactions with police must be maintained for a minimum of 90 days. Video in a criminal case must be maintained until a final disposition of the case and an order from the Court. See 720 ILCS 5/14-3(h-15).

Failure to maintain and disclose video that once existed but no longer does could be a discovery violation. A failure of the recording equipment will generally not be considered a discovery violation. This is because the State cannot be sanctioned for failing to produce something that never existed. The issue at a hearing for discovery sanctions often is whether an undisclosed video existed, and if it did exist, what would have been depicted on the nondisclosed video.

A knowledgeable DUI attorney will issue a subpoena tuces tecum (subpoena for production of evidence) to the police department. The subpoena tuces tecum will request all information about retention of video recordings, whether the video equipment was working properly, and the areas of the police station where video and audio surveillance is located. The police department response to the subpoena tuces tecum will inform the next steps.

Counsel must file a Motion for Discovery Sanctions if counsel believes a discovery violation occurred. A judge will schedule a hearing on the motion. The police officer who effectuated the arrest and police personnel with knowledge about the police department policy and practice in maintaining video and audio would be issued a subpoena to testify at the hearing. The judge will hold an evidentiary hearing to determine whether the video was created and destroyed or never existed. If a judge determines a video existed and was destroyed and a discovery violation occurred, the judge will decide what would have been shown in the video.

A judge will craft an appropriate sanction for the discovery violation if it is shown a discovery violation occurred. An appropriate sanction in the case where a judge finds a discovery violation for failing to produce a video would be to bar testimony about what would have been depicted on the video if the video had been disclosed. See People v. Kladis, 2011 IL 110920 (2011).

Contact Herzberg Law Firm to defend you against DUI charges. Steve Herzberg’s knowledge of Illinois DUI law will put you at an advantage when compared with most other attorneys defending clients against DUI charges. Don’t wait. Call or email today.