Our video camera in the intoxilyzer/DIC room is down for the next few days. Are we required to video tape this or is it sufficient to video only the stop, field tests and arrest?

I was under the impression that counties of a certain population had to videotape--has that been repealed or am I mistaken?

[This message was edited by Robert S. DuBoise on 05-08-03 at .]

Take a look at pg. 126 of the TDCAA's Criminal Laws of Texas. Seems to say that the videotape provision was passed in 1983 but never made part of any statute. Can be cited as Acts 1983 ch. 303. Provision provides that in a county of more than 25,000 if you fail to videotape the defendant can introduce that fact at trial.

Why does it take several days to replace a simple video camera?

This will change subject slightly, but cases have been overturned on appeal based on a videotape and the CCA recently sent one back because the CofA had failed to indicate in its opinion that they had watched the tape. The sponsors of the original bill apparently thought taping would assist the prosecution. In my experience very few tapes are used by the prosecution, and many cases go to trial because of the tape (which defendants and some courts think to be exculpatory). Furthermore, the statute was passed when relatively few rural patrol cars were equipped with cameras. (That is why I believe it was talking about taping at the jail). Maybe the statute has proved harmful or has outlived its need and should just go away. Unless the defendant falls down or passes out on the tape do they really serve any purpose? Since they show a condition other than while driving maybe they are also subject to a Rule 403 objection?

David, I do try to provide information or thoughts on this board when I think I can knowledgeably contribute and aid. While I may participate more than almost anyone else, I certainly don't do it under a pretention of having any greater storehouse of knowledge on criminal practice (esoteric aspects or otherwise) than a lot of others. Inquiries to specific individuals can put someone "on the spot" and should perhaps be left to e-mail.

Your comments were no doubt intended as a compliment and I thank you for them. And I will give my take on the subject. But, first I must say I think you have hit upon a point we have all missed for some time. 49.09(c)(1)(C) equates an offense under the former law with an offense under the new law, but only for "the purposes of" Section 49.09. You are correct that Section 24 of Ch. 303 refers only to visually recording the defendant's appearance within a reasonable time of an arrest "for an offense under article 6701l-1, Revised Statutes, or Subdivision (2), Subsection (a), Section 19.05, Penal Code." Since arrests for those offenses are no longer taking place, no visual recording is necessary. The jail house videos should be stopped! While 49.04 may read a lot like the 1983 law, that statute was repealed. The instruction that the officer failed to visually record the person is also inapplicable because it again refers to "a person arrested for an offense listed in subsection (a) of this section" (not the defendant).

Scott, regardless of the cost to repair or replace, don't do either.

Martin, setting aside your statutory interpretation, have you noticed any changes in public opinion regarding criminal investigations lately? Would you think that discarding any video recordings of DWI investigations would be a wise political or legal decision?

Have your videos generally backed up the officer's opinion testimony? A "bad" video is worse than no video, in my humble opinion. Besides, why go to the trouble to make a movie that is not required. But, I also agree the right answer to your question may be a toss up. I can only say that two of the counties in my district have not chosen to do any taping at the jails and that seems to be a workable policy. I am sure we may have lost some valuable evidence on occasion, but the in-car video of the roadside appearance should do the trick.

Is it your position that police only have a duty to collect "good" evidence and should discard the "bad" evidence?

I think the safer way to deal with the question of videotaping is to assume the uncodified statute still applies. I also think the idea that videos don't help us incorrect. There is a tendency to think that videotaping is a bad thing because so many of the tapes on the cases we go to trial on have defendant's who looked very good (usually explainable by the passage of time). The truth is that most videos (in Tarrant County) help the State and those cases end up as pleas.
I have advised police departments that if they use their mobile video units there is no need to record them again at the station.

Well that settles it. There is no best person to ask and you can choose to listen to whomever you wish. Overall, the Tarrant County experience favors producing the tapes (although Richard seems to agree those made closer in time to the crime are more valuable and likely to be more accurate). In my judgment the majority of the tapes prove nothing, that is they do not serve to resolve the case one way or the other. And a significant number of them are viewed as exculpatory (though I would argue very few truly are). At best, at trial, we have to try to explain them away. Thus, I fundamentally disagree that they should be a mandatory part of a DWI investigation. And I think the 1983 legislation no longer applies by its own terms. Thus, if you like the films, keep the cameras rolling. If not, consider the other alternatives. And no John, you know I am not proposing gathering only a certain type of evidence. I am proposing that misleading evidence be disregarded beforehand and only meaningful evidence be gathered. That a person appeared not to be intoxicated at a given point in time while engaged in a different activity may or may not be related to his ability to drive safely at another point in time. Maybe the officer can make the determination when and where to produce the movies, dependent on whether he thinks they will aid in showing the truth. If he ends up producing one that contradicts his opinion, then maybe he has invited closer scutiny of that opinion.

Richard, I presume you consider continuing the current policy safer because of fear the courts may instruct the jury a tape should have been made or was required. Until someone tests that issue- and it will take only one case to find out- you are right. But that simply does not mean to me that we must comply with a phantom law. No one worries about Chapter 32A these days.

A defendant doesn't need a statute to make the argument that a videotape should have been made. Given the laws regarding racial profiling (which encourage videotaping in the car) and the widespread availability of the inexpensive technology, I think any office would have difficulty explaining in court why he didn't videotape at all (regardless whether it was at the scene or station). And, frankly, as a prosecutor, I would include the absence of a videotape in my consideration whether to prosecute at all.

Doesn't the Tulia experience teach us anything? Would you rather have the Lege move toward a rule requiring corroboration of intoxication opinions of officers?

Martin, I think your argument that the statute does not apply anymore makes sense but I think the practice of making tapes in my County over the last two decades and the expectation that our judges and juries have that they will see those tapes are reason enough to continue. I do fear that some of my judges might make us pay for not doing what they still think the law requires. It is similar to the rule about telling suspects they are being taped. It used to be the law that you had to tell them and now it is not. Still most of my police departments continue to tell them they are being taped and I don't object because it creates an air of fairness and I think their failure to do tests after being told they are on tape increases their culpability in the eyes of our juries. I also have to agree with John that at a certain level it is just the right thing to do. Finally I still believe that they majority of these tapes are favorable to the State and I don't want to give up that evidence.

A video can never prove someone is not intoxicated. It can, however, prove one is intoxicated. I have rarely had a DWI video tape that I regretted had been made. Usually, if you watch the tape closely a few times, you can find a series of problems for the defendant. If you voir dire on the legal meaning of intoxication, and if you stress in opening that the tape will not show gross intoxication or "drunkeness" but will show subtle signs of intox., & what those signs are, you can make the tape work for you. If you get the officer, prior to showing the tape, explain each of the problems the defendant had on the tape, so that when the jury sees the tape they know what they are looking for, that will help too. In my experience, if you can get the jury to re-play the tape several times when they go back to deliberate, you will almost always get a guilty verdict.

If officers are trained to make maximum use of the tape, they can greatly increase its value. I try to get my officers to ask the following question on tape. "I'm going to ask you to rate your own level of intoxication. On a scale of 0--10, where 0 means your are completely sober, 1 means you have just a slight loss of you mental or physical faculties due to the ingestion of alcohol, 2 means just a little more of a loss, and so on up to 10, where you'd be falling down drunk, how would you rate your level of intoxication now?"

Most rate themselves a "2," almost none will say "0." And of course any rating of 1 or higher is an admission of legal intoxication.

Also, the officer can get admissions that the D was driving the vehicle in a public place, if that is a possible issue. I think videos are a great untapped resource.

Has anyone done a study to see how many counties with a population of less than 25,000 have chosen to voluntarily institute a videotaping program at their jails? If it is such a good idea, then presumably almost everyone has decided at some point during the past 20 years to buy and use the cameras. An inquiring mind wants to know.

David's post ranks as one of the World's Most Helpful Post. He provided a succinct and correct answer to the question.

David, I am unclear why Robert titled his response as he did. I hope it was not meant to criticize what you had said. In any event, I agree with Mark that you have correctly analyzed the situation. I would object to a defense attorney mentioning the non-existence of the video if he tried to imply such was required by law. Too, there is a difference between a defense argument and an instruction from the court. The instruction should not be given. It would clearly be a comment on the weight of the evidence.

I do agree that a well-done traffic stop video, done at the time of the stop and arrest, is far better than a police station video. But, for some reason, officers don't ask a lot of the questions at the scene that get asked at the station.

My previous post was a comment on the lack of helpful text in my own message and not in any way a comment on the response by David. My original intent was to post the text of the statute that called for taping at the jail. After I couldn't find that statute (because it hadn't been codified), my posting ending up consisting of the vague assertion that there was some law somewhere that addressed the issue.

Wow! Newell did it again, by posting the above case law regarding a comment on the weight of the evidence concerning any videotape instruction. And I didn't even have to go to the office (i.e. Newell's) next door to get that answer.

So, not only is it two of the World's most helpful posts in one thread, but I didn't have to leave my chair!