Personalized And Aggressive DUI Defense


On Behalf of | Jan 31, 2023 | Driving Under The Influence

In December, I wrote about the requirement of the State to produce video and audio of events leading to a driving under the influence of alcohol or drugs (DUI) arrest and video and audio of the arrestee’s processing at the police station in a DUI case.  Video Evidence In DUI Cases-When Video Evidence Is Not Disclosed To The Defense. Failure to disclose video and audio that once existed but no longer exists could be ruled a discovery violation if a Motion for Discovery Sanctions is filed by the defendant’s attorney and the motion is ruled upon favorably by a judge.

This exact scenario played out in a case heard in the one of the suburban districts in Cook County. Police were called to the scene of a one-car accident. My client was accused of DUI. Standardized field sobriety tests and other aspects of the DUI investigation were not conducted at the scene of the accident. Instead, standardized field sobriety tests and other aspects of the police DUI investigation were conducted at the police station. As such, nearly the entire DUI investigation was captured on police surveillance video at the police station. I filed a Motion for Discovery at the inception of my representation of my client. The State did not disclose any police station surveillance video of events at the police station in its discovery response.

I issued a subpoena duces tecum (subpoena for production of evidence) to the police department after not receiving the police station video evidence from the State’s Attorney’s office. The police department responded that the police station surveillance video no longer exists. The subpoena response indicated the police department had a policy to delete the video footage if no request to preserve the video was made within 30 days of the recording. No video could be recovered after 30 days from the recording.

Based on the response to the subpoena, I filed a Motion for Discovery Sanctions on my client’s behalf. The court held a hearing on my client’s Motion for Discovery Sanctions. The police officer who investigated and arrested my client for DUI and the police department records clerk testified at the hearing.

The police officer testified to being dispatched to a one-car accident. The police officer learned my client was the driver of the vehicle involved in the accident. There was a disturbance at the accident scene. Additionally, the ground was wet. The police officer decided it would be safer to conduct the DUI investigation at the police station. Another police officer transported my client to the police station. The State disclosed squad camera video from the arrest scene. I had reviewed the disclosed squad camera video. Nothing relevant related to the DUI investigation was depicted in the squad camera video.

The police officer testified that my client was brought through the Sally Port (garage) at the police station to a holding room adjacent to the Sally Port. This is where police administered standardized field sobriety tests, conducted an interview, offered a breath test that my client did not complete and fingerprinted and photographed my client before release. The police officer testified my client remained in the holding room from the time my client was brought through the Sally Port to the time of release from custody.

The records clerk testified there was police station surveillance video recording equipment throughout the police station including the Sally Port, hallways, and the booking room where standardized field sobriety tests were administered, and other aspects of the DUI police investigation were conducted. The records clerk knew of no malfunctions in the video equipment during the time near my client’s arrest.

The records clerk testified the police agency responsible for the arrest of my client had a policy to retain police station surveillance video for 30 days unless a written request was made to retain the police station surveillance video. Police station surveillance video would not be retained without a written request. In this case, no one requested police station surveillance video retention until after the 30 days has passed. The police station surveillance video was not retained by police.

The judge granted the Motion for Discovery Sanctions after an evidentiary hearing. The judge found police station surveillance video existed but had not been retained. The judge barred testimony about anything that transpired at the police station from the time my client arrived at the police station to the time of release from custody. This included critical testimony about my client’s exit from the police vehicle, transport from the police car to the police station, information learned in the interview, performance on standardized field sobriety tests, and the failure to complete an evidentiary breath test.

The State could not prove its DUI case beyond a reasonable doubt without testimony about events at the police station. This testimony was barred by the judge. The State dismissed the DUI charge based on the favorable ruling following hearing on the Motion for Discovery Sanctions.

Call or email Steven Herzberg at Herzberg Law Firm when you face DUI charges. My experience with and knowledge of DUI law can be the difference in achieving a successful result to your DUI case.