DWI cases dropped over lack of video

ALBUQUERQUE (KRQE) - Albuquerque lawyers representing accused drunk have a new tactic that seems to be working. It all has to do with those lapel cameras police officers are supposed to be using.

New Mexicans have seen suspected drunk drivers, on tape and all over the place. 

“Video very often makes or breaks a case,” President of the New Mexico Criminal Defense Lawyer's Association, Ousama Rasheed, said.

Rasheed has represented thousands of suspected drunk drivers and says good police lapel video of a driver clearly bombed usually leads to a quick outcome.

“Most of the time your client is embarrassed to have that shown in open court and it would create a lot of plea agreements where otherwise there may be trials,” Rasheed said.

However, APD officers are not always turning on their cameras during DWI stops and sometimes when they do the videos are incomplete.

KRQE News 13 requested lapel video from every DWI arrest made by APD over a single December weekend.

Out of the 43 arrests, there were lapel recordings for 38 of the cases. But in some of the videos you can't see the driver performing the field tests. Or where you can't see anything at all, and even videos were you see the stop but the officer doesn't record the tests. There were 12 cases with video like this.

KRQE News 13 took five of them to Rasheed, APD DWI Commander Eric Garcia, anti-DWI advocate Linda Atkinson and District Attorney Kari Brandenburg.

“If you just see darkness and hear voices, obviously that's going to cause anybody that's determining guilt or innocence in these cases to have great concern,” Rasheed said.

Brandenburg disagrees.

“Usually our cases, be they in metro or district court don't rely on one single piece of evidence to make or break it,” Brandenburg said.

Brandenburg says the videos are just supposed to be extra evidence for a judge or jury, but not a requirement.

“It is kind of frightening when they do want a video, an entire video filmed from six different angles with appropriate lighting, of every crime as it is occurring," Brandenburg said. "That's not a burden that we can meet.”

While it may not be a court requirement, DWI Commander Garcia confirmed it is a requirement for his officers to record their stops and the field tests, but not to prove the DWI.

“They are designed to record the interactions with the public to make sure the officers are acting appropriately,” Garcia said. “That if any use of force is necessary that's documented on the lapel cam as well.”

He says courts should rely on the officer's word.

“It's what the officer sees at the scene it's what the officer observes it's what the officer hears that that should be taken into higher account than just a video tape,” Garcia said.

Oddly enough, most of the lapel videos where the field tests were not visible were actually recorded by specialized DWI officers. Commander Garcia says officers should not have to go out their way to record from head to toe.

“I don't expect my officers to be tilting forward to do it,” Garcia said.

“It's wrong, it's just wrong,” anti-DWI advocate Linda Atkinson said.

She says APD should expect attorneys to challenge a lack of video; and if video helps the case, then do it right.

“We don't save lives by letting our impaired drivers go,” Atkinson said.

Commander Garcia says cases have been thrown out because there was no video; the defense challenged no video should mean case dropped.

“My DWI sergeant has given me a list of 10 cases that have been dismissed because they were not able to get the video or no video existed,” Garcia said. “They have another 5 right now that there are motions to drop the case.”

He says he's reprimanded officers for not turning on their lapel cameras on at the beginning of the stop, allowing attorney's to challenge that the driver shouldn't have been stopped in the first place.

Rasheed doesn't think the lack of video is always accidental.

“I think there is some resistance by officers to have visual recording and audio recording of everything that happens,” Rasheed said.

Commander Garcia says the idea that his officers are intentionally not recording field tests is absolutely false. In fact there's already been a conviction in one case where there was no video.

APD says it's ordering cameras with a wider view to deal with the problem but it's not clear when they'll arrive.