In December I pulled a guy over who was weaving to the point of nearly running off the road on the right and completely into the opposite lane of traffic on the left. I approach him and he's blitzed. I do the SFST which he fails miserably, and I get a blood warrant. Blood came back .22.

My camera system was down that night and other deputies were on calls. I called a city unit prior to conducting the SFST, and when he arrives I use his mic and camera.

I have court next week on this case, and the city cannot locate the recording! The officer whose unit I used that night is no longer with that department, which shouldn't matter. They're going to keep looking.

I've always had the audio/video to back me up in court along with the blood, but in this case it looks like all we're going to have is the blood. I don't really know what I'm asking actually, just a little concerned. I guess I'm just looking for thoughts from anyone who has had only the blood evidence without video.

Let the lawyers worry about this one. If the prosecutor has concerns about it then they will talk to you. As long as there wasn't any bad faith, it shouldn't matter. Many cases have gone to trial without a video.

I agree with G - but call the prosecutors on Monday and see if they're concerned at all. As long as the attorneys voir dire properly (DWI was around long before video tape....), and you have the other needed witnesses, your 0.22 blood draw should be plenty.

This is generally no problem at all. I agree with Brent that you should let the prosecutors know but what I've found in trying lots of cases without a video is that sometimes it makes things easier. There are lots of little nitpicky things that a defense lawyer can make a big deal of on a video like, "Isn't it true officer that the car we see driving by could've caused optokinetic nystagmus?" It's all B.S. but not having the video there nips a lot of that in the bud. Plus, you did everything you possibly could to record the stop on video. If your prosecutors know this up front, they can deal with it head on and it's no big deal.

To clarify: I assumed that the prosecutors were already in the loop. If they're not, then Brent and Ryan are absolutely right about contacting them; they can only prepare for issues of which they are aware.

I got the request for the video in my box when I went to work yesterday evening, and they had already left the office. Court date is Thursday.

Thanks much for the replies, I'll call them Monday morning and let them know.

I am prone to idle speculation and, as a member of the laity, I routinely speak out of ignorance... but I won't let that stop me.

Couldn't the fact that the video has gone missing be considered relevant under Brady and therefore required to be disclosed at least 10 days before trial? I believe this applies even if the evidence is only known to the police and not yet known by the prosecution Kyles v. Whitley, 514 U.S. 419 (1995). Or maybe not because although it might be helpful to the defense it isn't something that tends to show he is actually innocent... and maybe the lack of evidence is not itself evidence.

I'm still thinking about this... why would a defendant even set this case for trial without having seen the video and knowing there is a .22 blood test against him?

The items in this list are not mutually exclusive:
1. Defendant is foolish.
2. The plea offer was a non-offer. (max?)
3. Defense attorney is foolish.
4. Defense attorney thinks he can keep the entire traffic stop out of evidence... SFST, video, and blood test. He is banking on no reasonable suspicion when you saw him weaving all over the road.

I think there is some case law that discusses how many times you can cross the fog line or the other line without being suspicious.

This is why I'm worried about not having the video - establishing PC for the stop. Here's the breakdown:

Four-lane road. Two lanes southbound and two lanes northbound. No turn lane. Subject is in the left-most southbound lane. Vehicle crosses through the right lane and onto the right shoulder. Vehicle corrects back to the left-most lane and continues forward. Vehicle swerves into immediate oncoming northbound lane. Corrects back, goes into the outer lane and then back into the left lane continuing south. That's when I initiated the stop.

He could barely stand up when I got him out of the vehicle. Lack of smooth pursuit in both directions, distinct at maximum deviation, and onset prior to 45 degrees. Missed every step on the walk-and-turn, didn't count out loud, and took wrong number of steps. Began the one-leg stand but I stopped that as he was an older (late 50's) man and he was swaying and stumbling so far in both directions when attempting it that I was concerned he was going to fall down. And then there's the blood at .22. When I asked how much he had to drink, he said, "four five or six."

Without the video, I can't visibly show his extreme weaving into practically all lanes and over-correction. It took about two miles for him to finally pull over when I lit him up. I was actually close to calling a pursuit, but I suspected he was so drunk he was clueless about anything around him.

If the city unit can find the video, that will show the SFST. However, there is no video at all of the driving prior to that.

He was a gentleman of Pakistani (I believe, maybe Indian) ethnicity, and all the way to the jail he kept saying, "You have problem with my skin, this is right? Why is it you don't like my skin?" That's word for word (not that it really matters, but he tried that card). He owns several convenience stores in the county, and I recognized him after I pulled him over (it was 3:00 in the morning). I like the guy a lot, but I'd arrest my own brother for DWI if he did it. No excuse for it and I just can't stand someone putting other lives in danger because they can't be responsible enough to get a ride home.

That attitude may have something to do with the fact that I see all to often the tragic results of people deciding to drive drunk, so I have a zero-tolerance policy for it.

If you testify like you wrote, you shouldn't have a problem IMHO. By the way, you know defense attorney's read this site too right?

The extreme weaving is fine so long as you are able to articulate why it was dangerous. You also have the fact that he drove on the shoulder, presumably with no legal excuse for doing so (not passing a car turning left, not making a right hand turn, etc...).

bgreer: True, and I didn't think of that. Better not post things like this in too much detail so it doesn't come back to haunt me. In fact, maybe I should have this thread deleted if possible.

Gretchen: Absolutely the traffic violations occurring subsequent to the weaving due to driving while intoxicated gave me all the PC I needed. I just like to have it on video.

I think you are fine. The prosecutor will cover the video issue in voir dire, or if they have a problem speak to you about it. I swear every old VHS tape I have touched gets eaten by the machine.

Mac - anything you post you can delete yourself. When you click on the index-card-with-a-pencil-looking icon on your posts, there is a button to delete posts.

Just thought I'd do an update. I called the DA Monday morning and spoke to the attorney on this case. He called me back a couple of hours later and told me that I didn't have to worry about going to court after all. The defense attorney had just received the blood return showing .22 and they decided not to go to trial.

So, big sigh of relief. Thanks for the help and advice.

Blood rules.

Amen.