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What happens when a DUI / OVI arrest is videotaped by law enforcement and then the video comes up missing?  On June 30, 2010, the Franklin County Court of Appeals in Columbus, Ohio decided against a motorist when this exact issue arose.  The defendant was arrested by The Ohio State University Police Department for DUI / OVI.  She took a breath test at the OSU police department.  The act of giving a breath sample was recorded. 

The defendant requested a copy of all video evidence at the defendant's first court date - just 4 days after her arrest.  The Ohio State University Police Department's video policy is to have digital video evidence overwritten if it is not requested to be preserved within 96 hours (4 days). 

Courts considering the effect of the loss or destruction of evidence in a criminal case have distinguished between evidence that is materially exculpatory and that which is only potentially useful. If evidence is materially exculpatory, its suppression violates a defendant's due process rights, and requires dismissal of the charge. State v. Johnston (1988), 39 Ohio.St.3d 48. On the other hand, if the evidence is only potentially useful, the defendant must show bad faith on the part of the state in order to show that the defendant's due process rights have been violated. State v. Geeslin, 116 Ohio.St.3d 252, 2007-Ohio-5239; Arizona v. Youngblood (1988), 488 U.S. 51, 109 S.Ct. 333.

Evidence is materially exculpatory if " 'there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'"  The defendant argued that the burden should be on the prosecution to prove that the video evidence was not materially exculpatory.  The prosecutor argued that the evidence was just "potentially useful" thus not required to be preserved.  The Franklin County Court of Appeals concluded that the burden is on the defendant to prove that the police department's video evidence of her was "materially exculpatory" and that evidence that is merely "potentially useful" does not need to be preserved unless the defendant can demonstrate "bad faith" on the part of law enforcement.

Asking a citizen to prove bad faith on the part of the government is next to impossible.  Furthermore, asking a citizen to prove that the contents on police video is materially exculpatory is completely impossible.  It continues to amaze criminal defense lawyers how many ways the courts will issue illogical or unfair rulings in DUI / OVI cases. 

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