Many arrests in Illinois for Driving Under the Influence (DUI)are recorded by a camera affixed to the dash of the officer’s squad car. In fact, Illinois State Police are required to record all DUI arrests and preserve the video. However, court cases have stated that there are no consequences for the failure of the Illinois State Police to record an arrest.
In the case of People v. Kladis, 2011 IL 110920, 960 N.E.2d 1104, 355 Ill. Dec. 933, the Illinois Supreme Court addressed the consequences of the state failing to preserve a video even though the defense lawyer made a timely request for its preservation.
Five days after her arrest and 25 days prior to the first appearance, Defendant filed a Petition to Rescind the SSS and also served on the state a notice pursuant to Supreme Court Rule 237 (b) requesting production of all in-custody videotapes. At the first appearance, the videotape was not present.
The arresting officer testified that he had activated his dash camera prior to making the stop and described what the camera captured, namely, the substance of the arrest. The hearing was continued to a later date but not before defense counsel requested discovery pursuant to People v. Schmidt, 56 Ill.2d 572, 309 N.E.2d 557 (1974).
When the parties returned to court at the later date, the state advised the court that the video had been destroyed only hours prior to the first appearance, in accordance with departmental policy. The state did not dispute that it had received defendant’s Rule 237 notice prior to destruction of the video.
The court then granted defendant leave to move for sanctions as provided for under Rule 219. At a later hearing the court entered a sanction that precluded the state from providing any evidence of what occurred beginning five seconds prior to the time the tape would have started and ending at the time the defendant was removed from the scene (when the tape would have stopped automatically upon activation of the squad lights).
The SSS hearing proceeded and the court rescinded. The state ultimately abandoned its appeal of the sanction order in connection with that proceeding.
The trial court subsequently extended its ruling in the SSS case to the criminal case and entered identical sanctions as it had with regards to the SSS. The state filed a certificate of impairment and notice of appeal.
The state argued on appeal that the sanctions should not have extended to the criminal prosecution, asserting that Schmidt limited misdemeanor discovery to a list of witnesses, any confession and any evidence tending to negate the defendant’s guilt. The Supreme Court rejected that argument. In its narrowest sense, the holding is that videotapes are an essential piece of evidence in a DUI prosecution.
The court also refused to accept the state’s contention that the ruling effectively precluded the state from prosecuting the case. The Supreme Court held that the sanction was narrowly tailored and that the state could still have presented evidence of defendant’s intoxication beyond what appeared on the video, but chose not to do so.
More broadly, though, the Supreme Court appears to be saying what defense attorneys have argued for years–this is not 1974 and DUI is no longer a traffic offense with an extra wrist slap thrown in for good measure. Defense counsel should take advantage of the expansive language of Kladis to seek discovery of items such as source codes for breath test machines and uncertainty measurements for blood tests.
Jerseyville man’s attempt to suppress evidence in DUI stop fails Illinois DUI Lawyer Blawg, April 20, 2012
Fourth Amendment Rights in Driving Under the Influence Prosecutions Illinois DUI Lawyer Blawg, April 29, 2011