Nothing has changed the dynamic of a Florida DUI case more than the arrival and use of video in DUI investigations. These days most if not all of the Florida DUI investigators are equipped with video cameras. These cameras are used to acquire evidence of the speculate’s driving and performance on the field sobriety tests. now and then however, especially in the larger jurisdictions, these videos are lost or destroyed and consequently unavailable to the Defense for use in the case. So what happens when a DUI video is lost or destroyed?
In 1990, the Second District Court of Appeals for Florida (2nd DCA), rendered a meaningful decision on this matter in State v. Powers, 555 So.2d 888 (2 DCA, 1990). The Powers case truly didn’t include the destruction of evidence. Instead the issue brought before the court was whether or not the State was required to videotape a DUI investigation. The crux of strength’s argument was that his due course of action rights were violated because a video of his performance on the field sobriety tests, if made, would have shown or supported his claim of innocence. He also argued that the particular law enforcement agency had adopted a policy of bad faith in not videotaping investigations. The 2nd DCA ruled against Powers stating that “motorist’s due course of action rights were not violated as a consequence of failure to videotape the investigation.” State v. Powers, 555 So.2d 888. (2 DCA,1990).
The 2nd DCA decided, however, to expound further on the issue and they ultimately drew a bright line between failure to gather evidence and actual destruction of the evidence. The 2nd DCA opined that “an accused’s due course of action rights are violated, irrespective of good or bad faith on part of prosecution, if prosecution suppresses material, popular evidence.” U.S.C.A. Const. Amends. 5, 14. State v. Powers, 555 So.2d 888(2 DCA, 1990). Furthermore, “although accused’s due course of action rights are not violated if lost or destroyed evidence would not have been advantageous, consequently demonstrating without of prejudice, the State has the burden of showing without of prejudice.” U.S.C.A. Const. Amends. 5, 14. State v. Powers, 555 So.2d 888(2 DCA, 1990). Finally they opined that ” In a case where destruction of evidence is a flagrant and deliberate act done in bad faith with the intention of prejudicing the defense, that alone is sufficient to warrant dismissal of charges. State v. Powers, 555 So.2d 889(2 DCA, 1990).
consequently a good Florida DUI Lawyer will always request copies of all video and testing evidence when handling a Florida DUI case. If something comes up missing then the State’s case can be attacked using the opinions in Powers. I agree with the 2nd DCA’s holdings in this case. It would hardly be justice to allow Law Enforcement to dictate which evidence a trier of fact gets to see.