In a Motion to Dismiss a DWI (2nd) case, Counsel argues that because the field sobriety tests were not captured on video, Defendant is denied possibly exculpatory evidence that should be grounds for dismissal. Counsel cites CCP Art. 2.137 for his proposition that "video and audio equipment is required by law." 2.137 deals with DPS providing funding or equipment. In any event, I think I'm right to conclude that there is no requirement that a DWI stop be taped, per Rodriguez v. State, 2013 WL 5656194 (Tex. App. -- San Antonio, pet. ref'd)? There are also Courts of Appeals cases (Austin and Waco) that hold the absence of a tape is no grounds for acquittal.

Thoughts would be greatly appreciated. I have a hearing on this motion tomorrow afternoon.

You're absolutely right. There is no videotaping requirement whatsoever and this motion is entirely frivolous.

Here is a copy/paste of the case law on this from Richard's DWI Resource here on the site:

F. ABSENCE OF VIDEOTAPE

1. NOT GROUNDS FOR ACQUITTAL

Williams v. State, 946 S.W.2d 886 (Tex.App.—Waco 1997, no pet.).

Irion v. State, 703 S.W.2d 362 (Tex.App.—Austin 1986, no pet.).

Absence of videotape in DWI case is not grounds for acquittal.

2. UNLESS DESTRUCTION OF TAPE IN BAD FAITH

State v. Isbell, No. 05-15-00506-CR, 2016 WL 1104984 (Tex.App.-Dallas 2016)
Gamboa v. State, 774 S.W.2d 111 (Tex.App.—Fort Worth 1989, pet. ref’d).

To support motion to dismiss based on destruction of video, said destruction must be shown to have been in "bad faith."

3. NO JURY INSTRUCTION FOR FAILURE TO TAPE

Platero v. State, 1995 WL 144565, No. A14-94-00403-CR (Tex.App.—Houston [14th Dist.] 1995) pdr ref’d (not designated for publication).

Logan v. State, 757 S.W.2d 160 (Tex.App.—San Antonio 1988, no pet.).

No jury instruction on state's failure to videotape defendant.

Manor v. State, 2006 WL 2692873 (Tex.App.—Eastland, 2006, no pet.).

Where the DWI videotape was missing, the defendant was not entitled to a “spoilation” instruction. A defendant in a criminal prosecution is not entitled to a spoilation instruction where there is no showing that the evidence was exculpatory or that there was bad faith on the part of the State in connection with its loss.

4. DESTRUCTION OF SCENE VIDEO WON'T SUPPORT SUPPRESSION OF STATION VIDEO

Higginbotham v. State, No. 01-12-00547-CR, 2013 WL 6181850 (Tex.App.—Houston [1st Dist.] 2013).

Destroyed in car video showing 30 seconds of Defendant driving with no erratic behavior, being able to stand on his own and having no trouble reaching for his wallet, would not have affected the outcome of prosecution of Defendant for driving while intoxicated (DWI), such that it was not material under Brady, where recording also contained audio of arresting officer's comments that Defendant smelled of alcohol, had watery eyes, and slurred his speech; the Defendant also admitted to drinking four beers that evening, and a field sobriety test recorded at police station located five minutes from the place of arrest showed Defendant's inability to follow instructions or demonstrate basic coordination. Defendant's argument that station video should have been excluded because scene video was destroyed was properly denied.