Will a Failure to Videotape My DUI Arrest Result in Dismissal?

Most police agencies in Michigan will make a video recording of their roadside investigation. Depending on where the arrest occurred, this might be either a dashcam or a body cam. As a general rule of the discovery process, the police are required to provide your local OWI lawyer with a copy of the videotape. So what happens if the video is not made or after being made is not produced?

One non-Michigan case finding that dismissal was the appropriate remedy for the lack of a video is State v. Henkel, 404 S.C. 626, 746 S.E.2d 347 (S.C. App., 2013). In this case, there was a 911 call reporting that a motorist was driving a truck erratically on a South Carolina freeway. The caller followed the truck until it hit a bridge and overturned into a ditch. She observed the driver get out of the truck and jump over a fence. Eventually, the police caught up to the driver, who was then being examined by EMS in an ambulance. The officer read the driver his Miranda rights and performed a horizontal gaze nystagmus (HGN) test inside the ambulance. From this, the officer determined that the driver was under the influence and moved him from inside the ambulance to the side of his patrol car.

There, he was asked to state the alphabet and could not, he admitted that he was the driver of the wrecked truck. He was arrested and placed in the officer’s patrol car, where the officer turned the dashboard video camera to face the driver and read him his Miranda rights again. Prior to trial, the driver moved to dismiss the indictment on the ground that neither the field sobriety tests nor the initial Miranda warning was videotaped as required by section 56–5–2953 of the South Carolina Code.

The trial court reserved ruling on the motion until all of the testimony was presented. At trial, the officer as soon as it was practicable. The court denied the motion to dismiss, and the jury found the defendant guilty. This appeal followed.

In its analysis of the facts of this case, the court cited South Carolina law as follows: “[f]ailure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal … if the arresting officer submits a sworn affidavit certifying that the videotape equipment at the time of the arrest, probable cause determination, or breath test device was in an inoperable condition, stating reasonable efforts have been made to maintain the equipment in an operable condition, and certifying that there was no other operable breath test facility available in the county or, in the alternative, submits a sworn affidavit certifying that it was physically impossible to produce the videotape because the person needed emergency medical treatment, or exigent circumstances existed. Further, in the circumstances including, but not limited to, roadblocks, traffic accident investigations, and citizens’ arrests, where an arrest has been made, and the videotaping equipment was not been activated by blue lights, the failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal. However, as soon as videotaping is practicable in these circumstances, videotaping must begin and conform with the provisions of this section. Nothing in this section prohibits the court from considering any other valid reason for the failure to produce the videotape based upon the totality of the circumstances, nor do the provisions of this section prohibit the person from offering evidence relating to the arresting law enforcement officer’s failure to produce the videotape.”

Ultimately, the court found that because the videotape did not include the officer giving the defendant his Miranda warnings, it did not conform to the provisions of section 56–5–2953, and reversed the trial court.

In this regard, South Carolina law is much different from Michigan law. First, there is no mandatory requirement that anything be videotaped in Michigan. Second, there is Michigan case law directly at odds with this South Carolina decision. See People v. Greenfield.

However, this does not mean that the failure to produce a videotape is meaningless in Michigan. If you were arrested in Michigan for DUI, then here are still ways to use the failure to produce a video to your advantage. When you call the Barone Defense Firm for your FREE case evaluation, we could discuss your options with you, and let you know if we think we can use this sort of information to your advantage in defending your case.