Missing Video Issues in Prosecution for DUI with Illinois State Police
Below is an outline for issues to consider in a Kladis motion during a DUI case. Please contact me if you would like copies of the case law, ISP directives, or ISP training materials that were used to generate this list.
Kladis:
- Officer testified that the in-car video system begins recording 5 seconds prior to the activation of the emergency lights. At that time the microphone is also activated.
- According to the Trooper, the video would have captured: images of defendant’s car 5 seconds prior to the stop; the manner in which the defendant pulled over and curbed her vehicle; defendant’s actions when he approached her vehicle; the manner in which defendant opened her car door and exited her vehicle; the defendant’s performance on SFST.
- This Trooper turned off the emergency lights prior to transport to the station and it was then that the recording ended.
- Court held both at SS and MTQ that “the video may not be used, or any testimony regarding what is on the video pertaining to just before the officer stopped the defendant and the time that the defendant was placed in the squad car, which would mean anything that happened on the street prior to her being placed in the squad car.”
- State argued that Schmidt set out an exhaustive list, it did not. Since Schmidt, 4 decades ago, video records made by in-squad cameras in misdemeanor DUI cases have become as relevant to the issue of proving or disproving guilt as the materials specifically mentioned in Schmidt.
- 2009 General Assembly clarified and broadened the production and preservation safeguards for police recordings. It established the general rule that when any law enforcement agency makes an in-squad video and audio recording in connection with either law enforcement or investigative duties, that recording shall be retained for a minimum period of 90 days. 720 ILCS 5/14-3(h-15). Significantly, the legislature has also mandated and extended period of storage for certain recordings. Where “the recordings *** are made as a part of an arrest or *** are deemed evidence in any criminal, civil, or administrative proceeding” they cannot be destroyed except “upon a final disposition and an order from the court.”
- These legislative enactments express the clear legislative intent that the purpose of recording traffic stops and preserving these recordings for later production is to assist in the truth-seeking process by providing objective evidence of what occurred between law enforcement and the citizen.
- Upon receiving the written Rule 237 notice to produce the video recording 5 days after defendant was arrested—and 25 days before it was destroyed—the State was placed on notice and should have taken appropriate steps to ensure that it was preserved.
ISP Directives:
- V.B.3. Emergency equipment will be set to automatically activate the in-car video camera when the emergency lighting is activated. In addition, officers will have the ability to activate the equipment manually.
- V.B.4. The recording will not be interrupted or stopped until completion of the enforcement stop. The enforcement stop is considered complete when the subject of the stop or officer has left the scene. In case where the officer is transporting a subject, the stop is considered complete upon arrival at the destination.
- V.B.8. Officers are encouraged to activate the camera any time it would be beneficial, such as observed suspicious activity, traffic problems, or crowd problems.
- V.B.10. Officers will record activities inside the vehicle when transporting an arrestee or when an officer believes recording may assist with prosecution, enhance safety, or for any other lawful purpose.
Student Outline for In-Car Video Training (IL State Police Academy):
- What the camera sees: the area in and around the violator’s vehicle, both while in motion and after the traffic stop. Page 3
- ICVS Record Activation immediately when observing impairment indicators and reasonable suspicion or probable cause does not yet exist, when violation observed, when decision to stop has been made. Page 7
- Leave on audio/video until violator escorted into jail. Page 12
Instructor Outline for In-Car Video Training (IL State Police Academy):
- Automatic ICVS activation policy (camera comes on when emergency lighting activated). Page 5
- Reasonable suspicion (articulate to the ICVS what you see). Page 6
- IVC violation (stop after you see the 1st violation…too many violation may work against you – Liability!!). Page 7
- Transport to jail (option-turn camera on violation i.e. impaired driver). Page 8