Video Evidence and DWI: Body-worn and Dash Camera

In Texas, if law enforcement officials catch you while you are driving with a Blood Alcohol Content (BAC) that is over the legal limit of .08%, you may be arrested and charged with a Class B misdemeanor, at minimum. If this is your first offense, your driver's license may be suspended, and you may spend up to 72 hours in jail. For those who have past DWI convictions, the charge increases, as does the potential maximum sentence and fines.

When you have a DWI charge in Texas, you want to make certain that you retain a trial litigator who understands how to best strategize and fight for your rights. The best strategy might be a plea negotiation, although this is not often the case. The best strategy might be to go to trial, which is more often effective for the defendant. With a court system as complex as Texas', you don't want to try to navigate your charge on your own. An attorney who is Board Certified in DWI and criminal defense is your best bet.

Doug Murphy is one of only two lawyers in Texas who have both of these certifications. Doug's 25 years of experience mean that he is well aware of the ins and outs of the Texas legal system, especially in Houston and the surrounding metropolitan area. He is passionate about fighting for his clients' right to innocence until proven guilty. One skill of his is knowing when and how to use specific types of evidence. Dashcam and body camera video evidence is an example of this. Sometimes it can be helpful to a client's case, and other times, it is best to try to have the judge suppress it. Let's look a little more closely at its use in a DWI defense case.

What Are the Laws Around the Use of Video Evidence?

There are several factors to consider when it comes to what video evidence may be used in a DWI case and how it may be used. It's beyond the scope of this post to go over them all in detail here, however, a clear resource can be found here, and in the text of HB 3791 which added to the legislation the following:

A person stopped or arrested on suspicion of an offense under Section 49.04, 49.045, 49.07, or 49.08, of the Penal Code, is entitled to receive from a law enforcement agency employing the peace officer who made the stop or arrest a copy of any video made by or at the direction of the officer that contains footage of: (1) the stop; (2) the arrest; (3) the conduct of the person stopped during any interaction with the officer, including during the administration of a field sobriety test; or (4) a procedure in which a specimen of the person's breath or blood is taken.

This addition in 2015 was a significant win for DWI defendants for multiple reasons. Let's look at some of the key components now.

Defense Right to View Tape Before Trial

A defendant in a DWI case and his or her attorney have the right to view a DWI video before trial. Viewing the video evidence before the trial can enable a DWI defense attorney to strategize about how to best approach the case. Seeing a tape before the trial means that you won't be walking into a surprise situation with potentially incriminating evidence. Your defense has the "right of discovery" to access any evidence that the prosecution has against you, and that includes video evidence, whether from a body cam or a dashcam.

Providing Defendant With a Copy of DWI Videotape

To view a DWI videotape, your defense attorney must file a written request asking for access to a copy of the tape. If the formal request does not get filed, you will not have access to this potentially critical piece of evidence. The State must provide a "true and correct copy" before the twentieth date before the proceeding. If the prosecutor "makes available" the tape, that satisfies this requirement.

Mobile Video Camera Tape Is Admissible

When you hear the word mobile video camera tape, perhaps you think of a cell phone video. However, that is not what this refers to. This refers to the dashboard cameras that are commonly installed inside police vehicles. Often, a prosecutor will attempt to use this video as evidence against you to support their charge. As you'll see below, however, a skilled defense attorney may be able to use dashboard camera footage to your benefit.

What Department Policies Must Be in Place?

Texas Occupations Code §1701.655 outlines the requirements and policies that law enforcement agencies must follow if they want to implement a body-worn camera program.

The stated policies of the agencies must include, but aren't limited to:

• Guidelines determining when a police officer should activate a camera or discontinue a recording as it occurs based on privacy in specific circumstances.
• Data-retention provisions: videos must be retained for a minimum of 90 days.
• Provisions regarding the storage of video and audio. These must include the creation of backup copies and data security maintenance.
• Guidelines for public access to the video footage by the use of open records requests.

How Can Video Evidence Be Used?

There are many ways to use video evidence from a body cam or dash cam in a DWI case. Here is a short list of some of the ways a lawyer might use video evidence to help your case:

• To show there was no evidence that you were intoxicated. If you appear in the video and do not appear intoxicated, this works in your favor. Perhaps your speech and eyes are clear, or maybe you passed your field sobriety test with flying colors. This provides evidence that your lawyer can use to argue that your behavior was not that of an intoxicated person.
• To force police officers to be accountable for all their actions. We all know that some police officers exercise brute force and occasionally overstep their boundaries. This police brutality is as true in a traffic stop for an alleged DWI as it is in other areas of their responsibilities. If a police officer behaved aggressively in the video or appeared hostile, and you remained calm, an attorney may be able to use this to the benefit of your case.
• Police officers write their reports about traffic stops hours after they occur. Video evidence can point to substantial discrepancies between an official report and what actually took place during the traffic stop. An example of this might be that in the report, the police officer wrote that you were unable to stand up without swaying, that you slurred your words, and so on. If the footage demonstrates that you stood without swaying and that you spoke clearly, it calls into question the police officer's account of what happened, which may weaken the prosecutor's arguments. Video evidence then, can provide a non-biased account of the event.
  

What Defenses Might Be Raised

Depending on what your lawyer uncovers when he examines the video footage for your DWI case, there are several defenses that a skilled attorney might turn to. Beyond some of the potential benefits listed above, here are some ways a DWI lawyer might use video evidence for your defense:

• Dismissal or suppression of evidence due to procedural errors. If the law enforcement officer who made the traffic stop did not advise you of your Miranda rights but questioned you anyway, your responses to those questions could be suppressed. In other words, the evidence wouldn't be able to be used against you. This strategy could possibly save you from a DWI conviction.
• Dismissal of the video due to probable cause for the initial stop. For example, if the police officer wrote in the report that you had "failed to maintain a single marked lane," but the video showed the officer's approach to your car, and it was evident that your tires only just edged over a line once. Additionally, you were the only car on the road. Therefore, your slight edging over the line once was not actually unsafe to others, the officer may have had no probable cause to pull you over, and a skilled attorney might use this to argue for a motion to suppress.

How Video Evidence Can Hurt Your Case

Video footage can hurt your case if you appear intoxicated or belligerent. Additionally, body cam and dashboard footage might include incriminating evidence of a traffic violation or the interaction with law enforcement officials. This potential is why it's important that a lawyer file a formal request for the footage prior to your trial so that they can prepare a planned strategy.

Contact Our Houston, Texas DWI Defense Attorney

Doug Murphy's extensive trial experience and 25 years as a Board Certified DWI and criminal defense attorney make him an ideal lawyer if you're concerned about your DWI arrest. Contact us today at 713-229-8333 to schedule a free consultation.