by Peter Lederman, Esq.
When you have received a Summons for Driving While Intoxicated, it’s important to retain the right lawyer. This should be someone who knows the law, thoroughly understands police DWI investigative procedures such as field sobriety testing, breath testing, and blood testing, understands what it takes to achieve the client’s goal and most important, has passion in representing his client. It is also very important, however, to make that decision as soon as possible. This was made clear in a recent decision from the New Jersey Appellate Division, our State’s second highest court.
State v. Richardson
In the matter of State v. Richardson, the court determined that an “adverse inference” should be raised against the police when video recordings are destroyed after the Defendant’s attorney promptly demands preservation and production of relevant video recordings. The term “adverse inference” means that the Judge in a DWI case can infer that the missing video would have been unfavorable to the State, that is, that it would have shown that the Defendant was not intoxicated.
Obviously, the Defendant should be provided with all discovery created by the police over the course of the DWI investigation. Video evidence is certainly crucial since it shows what actually happened and gives the Defendant’s attorney the ability to test the Officer’s version of what happened. In the absence of this evidence, the court would be limited to the Officer or Trooper’s personal recollection in establishing the events that occurred on the street and in the police headquarters. A video does not forget or mistake events which can be crucial to the defendant’s defense.
Erased to soon?
Too often videos both from Mobile Video Recording or in station recording systems are erased and not made available to the Defendant’s attorney. This was the case in Richardson, where notwithstanding counsel’s demand to preserve and produce in station video recordings, recordings were recorded over, thirty days after the event. The Court found that “ to conclude otherwise would give the State, as well as the police, free rein to destroy evidence that may help a Defendant…That would frustrate the broad pre-trial discovery our Rules authorize and undermine the Rule’s goal of ‘promoting the search for truth’ and ‘providing fair and just trials’ ”.
Obviously then, it is crucial to retain DWI counsel as soon as possible to enable the attorney to demand and obtain crucial video discovery before it is destroyed.