Cops, DWIs, and Videotape: Proposed N.C. law would require police to record DWI arrests from start to finish.

Dashboard Cameras and DWI Arrests

Why aren’t all police cars already equipped with dashboard cameras?

When it comes to defending individuals charged with driving while impaired (DWI), footage from the arresting law enforcement officer’s dashboard camera can be crucial to formulating legal strategy. The recordings taken by officers’ dash cams allow criminal defense attorneys to ensure that an arresting officer had reasonable suspicion for the stop of a vehicle and probable cause for the arrest of their client. In the case of DWI stops, dash cam footage also gives defense attorneys the opportunity to make sure that field sobriety tests were carried out in the correct manner or see for themselves whether their client was showing visible signs of impairment, such as having difficulty exiting their vehicle. Further, if an officer’s written report contradicts the video captured by their dash cam, a defense attorney can use that contradiction to attack the officer’s testimony during trial. In the hands of a skilled criminal defense attorney, dash cam video can often have a significant impact on the outcome of a DWI trial. Yet this valuable evidence is not always available to defendants because not every law enforcement vehicle is equipped with a dash cam.

DWI Breath Tests Not Always Recorded

DWI defendants are also often at a disadvantage because law enforcement agencies in North Carolina do not routinely film individuals undergoing breath tests. Breath-tests are the most common way that the police establish a person’s blood-alcohol content (BAC), and breath-test operators are supposed to follow a strict protocol to assure accuracy when breath tests are administered. Failure to take all the required steps can lead to an otherwise unimpaired individual showing a BAC above N.C.’s legal limit of 0.08.  For instance, if an individual who has consumed alcohol vomits or burps before blowing into the test machine, it can skew the blood-alcohol content reading and make it appear as though the person being tested is drunk. When a BAC breath test is not videoed, a defense attorney may have only their client’s word that the breath test was performed incorrectly.

Video Makes a Difference in DWI Arrests

However, proposed Senate Bill 449 may make these powerful tools widely accessible to criminal attorneys across the state. Proposed Senate Bill 449 would require video recording devices to be installed in all law enforcement vehicles engaged in traffic enforcement and at all sites where breath tests are conducted throughout North Carolina. In police vehicles, the dashboard camera would be required to begin recording when the officer activates his or her blue lights. The video would also be required to include any field sobriety tests conducted by the officer, as well as the actual arrest of a driver for DWI should it occur. In the case of breath-test sites, it would be necessary to record a DWI suspect’s entire breath-test, including the suspect being given notice that they are being recorded and the actions of the breath-test operator during the test.

Unfortunately, Senate Bill 449 does not go far enough to protect the rights of DWI defendants. Even as the proposed legislation mandates that video recording equipment be installed on traffic enforcement vehicles and at breath-test sites, this obligation is only compulsory if the N.C. General Assembly appropriates funds for that purpose. In other words, if the legislature never set aside money for recording equipment in the state budget, North Carolina’s law enforcement agencies would not be responsible for independently seeking out revenue to buy and install such equipment – the police could continue to operate as usual with regards to how DWI traffic stops and BAC breath tests are handled.

 A Right to Due Process in DWI Cases

This is not about giving defense attorneys in North Carolina an unfair advantage. This is not about subjecting law enforcement officers to unnecessary scrutiny. This is about ensuring fair process for the criminally accused, one of the most sacred protections given to us by the U.S. and N.C. constitutions. By recording the police’s interaction with a DWI suspect from traffic stop to breath test, defense attorneys are given a better opportunity to protect the innocent from harm and to advise the guilty on the wisdom of admitting responsibility in those cases where that might be appropriate. By having a concrete video record of police actions during DWI arrests, we may place our faith in good law enforcement officers while identifying those officers who repeatedly violate the rights of suspects.

Senate Bill 449 demonstrates that lawmakers in North Carolina recognize the need for increased police accountability when dealing with DWIs. Though the language of the proposed statute relieves law enforcement of its recording duty if funds for video equipment are not provided to state agency, the bill still represents a step in the right direction. Nevertheless, if Senate Bill 449 becomes law, it will be most effective if the legislature puts its money where its mouth is.