If you are charged with OUI, most municipalities do not have roadside videotape. However, many municipalities have videotape in their station houses, not for oui cases, but for protection against civil lawsuits. This videotape is crucial to any defense at trial, as there is no more reliable and accurate evidence than videotape. Because police do not perceive this videotape as criminal evidence, they sometimes tape over the videotape or otherwise do not preserve the videotape.
You need to hire a lawyer ASAP to get into Court in the next couple of days after arrest to file an emergency motion to have the police preserve this evidence until the case is tried. Most judges will sign this type of order because they too realize that there is no better evidence of impairment or lack of impairment than videotape. Your lawyer than can walk the order over to the police station.
The Courts like technology and they don’t like omissions in police work. The courts have already ruled that if some one is charged with a crime, is Mirandized and thereafter gives a confession, the confession should be considered “with great caution” unless the confession is videotaped.
The same issue applies to videotape and OUI cases. I have a jury instruction where jurors are told that if the police don’t take the time to avail themselves of new technology, like videotape, then jurors may “weigh evidence of the Defendant’s impairment with great caution and care”.
So, if the police never videotaped you, they will be viewed with suspicion by the judge and most likely the jury, as this omission in police work is hard to justify in today’s world. Why have testimony only from an officer when videotape doesn’t require any filtering by a human’s biased eye ?
Call me if you have any questions. Doug Stoddart 508-243-4877.