What might the police have recorded or filmed on video & can we get it?

We often used to get video from the station of the suspect being administered the breath tests in the breath testing room at the police station. Those videos often showed that there was defective or inadequate police booking and processing work. Especially as to how they administered the breath tests. Many police departments have disabled, removed or even broken their video systems. The recordings often were too helpful to defense lawyers.

They often showed that the police officer forgot to do a thorough mouth check to make sure there were no foreign substances in the subject’s mouth. Substances such as such as tobacco, gum, candy, metal tongue inserts, vomit, or mints. The videos showed that they didn’t allow the suspect to remove the substance and then rinse their mouth before taking the breath test. Which is required when foreign substance(s) are found in the mouth.  The mouth check shows that if the person’s mouth is opened wide and the cop uses a flashlight if needed to take a close look inside their mouth.  There can be no foreign substances in one’s mouth for a valid breath test.

These videos showed that the officer did not always do a mouth check, then keep a 15-minute observation period before starting the test. Such as if someone knocked on the door of the room and the officer administering the breath test got up to answer the door taking their eyes off the subject. If the officer turned around facing away from the subject to retrieve a form from a file cabinet, etc., that breaks the observation period. The observation period is required by law and failure renders the entire breath test results suppressible. This sometimes even leads to complete dismissal of the entire DUI charge and case.

(revised 12/07/2021)