Defense attorneys wrap their arms around idea of video taping all DUI arrests.
By Ted McDonough (Posted 10/09/2008)
Expect the 2009 Utah Legislature to tinker with Utah’s drunken-driving law. In fact a bill file already has been opened. One Salt Lake City defense attorney has a change he’d like to make while lawmakers are at it: requiring that arrests for driving under the influence be videotaped. Jason Schatz, who specializes in drunken-driving cases, has compiled a stack of video tapes from recent stops that make up something of a “America’s Most Ridiculous DUI Arrests” collection—in which an arresting officer’s reports of sniffing out a drunk doesn’t jibe with what can be seen on the video screen. Schatz has another stack of videos showing his clients stumbling out of their cars obviously sloshed.
Either way, Schatz argues the camera doesn’t lie, and use of a simple technology could erase a lot of doubt from the DUI courtroom.
“You read some of these police reports, you think ‘This person must be falling-down drunk,'” says Schatz. “Then you take a look at the videos and think, ‘This guy looks good.’ Videotape is the only way we can ever get a 100 percent certain set of facts.”
Among Schatz’s video collection is the April 2008 arrest of a man on Interstate 15 in Murray. The report of the arresting Utah Highway Patrol officer says the driver had to raise his arms to keep balance during the walk-and-turn test and during the one-leg-stand test had to put his foot down to keep from falling over. The tape of the arrest doesn’t show either. It begins with a patrol officer telling a colleague, “I don’t think he’s ‘deuce'”—cop language for drunk—but would give the sobriety test anyway. On tape, the man walks the line without moving his arms. The arresting officer’s report says the man put his foot down after 26 seconds of the one-leg-stand. On video the man counts up to 22 holding his foot in the air, then is told to stop by the trooper.
Cameras are used by many smaller Utah police departments and are ubiquitous in Utah Highway Patrol cars. The UHP requires troopers to record DUI field sobriety tests. The main outliers are the Salt Lake City Police Department and Salt Lake County Sheriff’s Office, both of which cite expense as the main obstacle blocking in-car cameras.
Schatz says Utah could take care of the money problem with a law similar to one adopted in South Carolina. The only state in the nation to mandate taping of DUI arrests, South Carolina requires taping from the time a car is pulled over, through field sobriety tests and back at the station during breath tests. The same law pays for cameras with a portion of fees from convicted drunken drivers.
Defendants in court facing a police officer “always have a credibility problem,” says Schatz. “The videotape levels the field. When it’s cop versus my client, the cop wins. When its cop versus video tape, videotape wins 100 percent of the time.”
The idea of recording drunken-driving arrests has support from some Utah law-enforcement officers who currently use an in-car camera system. Davis County Sheriffs deputies have had cameras in cars for about a decade. Capt. Randy Slagowski likes the systems for training as well as protecting police officers from unfounded allegations. “Much of the time, the video of an incident comes to the rescue of an officer that’s been accused of being rude or mean or doing something inappropriate,” he says.
In DUI cases, video is “invaluable” as evidence, Slagowski says. “A deputy can be on the stand and describe someone intoxicated. That’s all fine and good,” he says. “But a jury only needs to watch three seconds of a video to say, ‘That guy’s sloshed.'”
Schatz had a case like that February 2007 in Murray Justice Court. His client’s breath test was ruled inadmissible, but the jury got to watch the video of the driver flunking the balance tests. Afterwards, jurors told Schatz they would have found his client not guilty were it not for the video. Schatz acknowledges in-car cameras are expensive, but argues there will be savings from cases that don’t have to go to court. Usually, all it takes is one showing of arrest night for a guilty client to decide he really was drunk after all and should take whatever deal he can get, or for a prosecutor to determine an arrest shouldn’t have been made in the first place.
One Schatz video comes from May 2004. Like many cases, it went to trial two years later after memories had faded. The arrested driver wore glasses, which the officer had her take off for the eye test. On the witness stand, the arresting officer testified he gave the glasses back—as required—for the walk-and-turn test. But the video told a different story. Schatz ended his presentation by handing his client’s thick prescription glasses around to the jury.
But, while the camera doesn’t lie, it doesn’t always tell the whole truth. So argues Salt Lake City Prosecutor Sim Gill. “The camera can’t tell you the strong odor of alcohol, the red bloodshot eyes,” Gill says. Often drunk driving is more subtle than can be captured on camera, he says. “Studies show impairment is not always that visible impairment [of the falling-down drunk]. It’s the guy who thinks he can drive when the body is doing something else.”
Gill isn’t necessarily against cameras, but can prioritize plenty of other budget items first.
Schatz has shopped his idea for a mandatory DUI videotape law to some lawmakers but so far hasn’t found a sponsor. He might want to lobby Mothers Against Drunk Driving. MADD purchased five in-car cameras for the Salt Lake City Police Department last year and a sixth system this year.
They are the only cameras the department currently has in its fleet of nearly 300 cars. The department is running the systems as a test and may seek to add more cameras, says Sgt. Robin Snyder, police spokeswoman. Currently, however, there is no money in the budget.
“When the field sobriety test is on video, then everybody’s got a clear shot of exactly what happened,” says MADD Utah President Art Brown. “It’s a really nice thing both for the defense and the prosecution to have one more piece of evidence.”