Always, Always, Always Get The Video Evidence!
(True stories from the courtroom)
The first step in defending a client charged with violating N.J.S.A. 39:4-50, (Driving Under the Influence) is to request “discovery” pursuant to Rule 7:7-7. Up until just a few years ago, discovery was comprised almost exclusively of paper discovery, which included police reports, breathalyzer results, operator’s certifications and documents necessary to confirm the accuracy of the breathalyzer. In recent years, all experienced drunk driving attorneys have expanded the request to include photographs, video and audio recordings. Now that almost every police vehicle is equipped with a video camera, it is critical to obtain this information prior to engaging in any discussions with the Municipal Prosecutor. Below is a perfect example of why the video tape is critical.
In February of 2015, one of my clients was stopped by a State Trooper while travelling down a major highway in North Jersey. He was charged with Drunk Driving, Reckless Driving and Failure to Maintain Lane. A conviction would have resulted in a two year loss of his privilege to operate a motor vehicle in New Jersey, because he had a prior Drunk Driving conviction.
After he retained my services, I requested a complete copy of discovery, including photographs, video and audio related to the stop. The paper discovery was produced promptly. However, the Municipal Prosecutor had difficulty obtaining a copy of the video and audio recordings from the State Police. I was forced to file a motion to compel production of the video. Before the Judge was forced to rule on my motion, the Municipal Prosecutor was able to produce a copy.
Per the police report, my client was pulled over because he was swerving. This was clearly reflected on the video. After being pulled over, the trooper observed a strong odor of alcohol, in my client’s motor vehicle. Based upon the odor of alcohol, my client was asked to perform field sobriety tests, which he reportedly failed. He was then transported to the police station where he was administered a breathalyzer. Based upon the test results, he was charged with violating N.J.S.A. 39:4-50 (Driving Under the Influence). Importantly, the Trooper indicated in his report that upon opening my client’s passenger side door, he immediately smelled an odor of alcohol. The report further provided that once my client was placed in the police vehicle it smelled of alcohol and the same happened when he was placed in the holding room, at the police station. It is important to note, that the odor of alcohol is what provided the State Trooper with “probable cause” to ask my client to exit his vehicle and perform the “field sobriety tests.” In essence, it was critical to the State’s case.
Here is where it gets interesting! On video the Trooper is seen pulling over my client’s vehicle. He is then seen approaching the passenger side door and engaging in a one minute and fifteen second conversation, with my client, through the passenger side door. When he closes the door, he immediately turns to the two other State Troopers on scene and states “I don’t have an odor of alcohol.” Less than five seconds later he again states “I don’t have an odor of alcohol.” Remember, the police report, which was prepared by the Trooper that pulled my client over, said there was an “immediate” odor of alcohol. Bottom line, the Trooper lied in his report.
Armed with this blatant contradiction, I played the video for the Municipal Prosecutor and spoke to him regarding a dismissal of the DUI charge. The Municipal Prosecutor refused to dismiss the charges without speaking to the Trooper, which prompted the Judge to schedule the matter for trial. On the day of trial, the Municipal Prosecutor agreed to dismiss both the drunk driving and reckless driving summonses. It was obvious that he had no intention of calling the Trooper as a witness because he would have been forced to admit he lied in his report.
More often than not, the video will support what is found in the police report. However, there are times when an officer makes a mistake or flat out lies on tape. Experienced drunk driving attorneys know that those mistakes and/or lies are critical to the defense of every drunk driving client. That is why it is critical to obtain a copy of the video before engaging in plea negotiation.
If you have been charged with drunk driving or refusing to submit to a breathalyzer, you need to be represented by an experienced drunk driving attorney. The lawyers at Rispoli & Borneo, PC have years of experience and have handled hundreds of municipal court matters. Give us a call and we would be happy to sit down with you – free of charge – to explain what we can do for you.