Police Video – the Good, the Bad and the Ugly

December 23, 2016

Regrettably, another professional athlete, Michael Floyd, formerly of the Arizona Cardinals and now New England Patriots, has been arrested for DWI/DUI. I’m sure many of you have seen the video by now of the first 3+ minutes of the arrest. And I’m sure you’ll agree, it doesn’t look good for Mr. Floyd. He’s asleep at the wheel. At a stop light. In the middle of the road. After sitting through two cycles. The car is running. It’s still in drive. It takes multiple attempts of increasing force for the police to finally wake him. Once awake, Mr. Floyd is visibly confused. He has difficulty following directions. Although it is difficult to hear (at least on my computer), his speech seems slurred and his responses to police questions not exactly on point. He doesn’t know exactly where he is. And he claims to not know why the police are speaking with him, and shows surprise (feigned or genuine) when informed of the reason. All in all, a difficult video for a DWI defense attorney to get around. And the eventual .217 BAC doesn’t help (although chemical breath test results aren’t perfect either!)

So what is a DWI defense attorney to do here?? Well, in cases like Mr. Floyd’s where there is a video, the best place to start is by going to the tape! It is critical to break the video down to its smallest increments, analyze every second of that video as closely as possible. It’s a DWI defense attorney’s job to not only look for and anticipate the damaging parts of the video that the prosecution will most certainly use to demonstrate the defendant’s intoxication, but also to look for each and every aspect of the video that show that he or she was still able to operate a vehicle as a reasonable and prudent driver (after all, what the hell does walking heel to toe or standing on one leg have to do with driving a car?!).

The video examination starts from the second the police vehicle is behind the defendant’s moving car. What was the basis for the stop? Speeding only (speeding in and of itself is not indicia of intoxication)? Swerving? Driving over the fog line? Multiple traffic offenses over the course of few minutes? How severe were those traffic violations? Did the driver appropriately respond to the flashing lights? Did the driver pull over appropriately and in a safe and reasonable location? Did the driver place the car in park? Did the driver able to respond to police commands and questions? Did he roll the window down without fumbling? Produce the requested documents (not a credit card instead of a license)? Was he able to locate and retrieve the requested documents, e.g., if the registration was in the glove box, was the driver able to lean over to the glove box without falling over? Open the glove box without a problem? Physically locate the registration in the glove box (which is even more significant if the inside of that glove box looks anything like mine)? Sit back up without assistance and hand the registration to the officer? Was he able to pull his wallet out of his back pocket without falling over or dropping it? If a woman, was she able to find and retrieve her wallet/ID from her purse? Did the driver remove his driver license from inside the sticky plastic window in the wallet without incident? …you get the idea. Every movement, every word, every correct or appropriate action or response must be considered. Each “normal” incident helps to reduce the appearance of impairment of intoxication in the jury’s mind. Show enough of them, and the total may just outweigh any indication of impairment of intoxication and result in an acquittal or a conviction of a lesser included offense.

Mr. Floyd’s video is unfortunately off to a bad start. But any video has potential to be a helpful video! There are still some things in Mr. Floyd’s video that an experienced DWI defense attorney might be able to work with. But if you find yourself in Mr. Floyd’s shoes, it’s up to you to find that experienced DWI defense attorney who knows what to look for and who can see that one second of video that may make the difference between a criminal conviction for the rest of your life, or just a difficult night you’ll remember for the rest of your life.

If you have been arrested for DWI in the Hudson Valley or anywhere in New York State, call experienced DWI defense attorney Todd W. Carpenter, Esq. of Catalano & Carpenter LLP at (845) 454-1919 today, or email todd@catalanocarpenter.com.