The District of Columbia Court of Appeals recently issued an important decision for Washington, D.C. DUI lawyers and their clients. In the case of Koonce v. District of Columbia, the Court put the D.C. Attorney General’s Office on notice that failing to preserve station house video of a DUI defendant will constitute a discovery violation in Washington, D.C. DUI cases. But let’s back up . . .

Washington, D.C. DUI lawyers routinely request all video recordings in every case. That video may be store surveillance footage in shoplifting cases, or club camera video in assault cases. In DUI cases, however, the most common video comes from cameras in MPD station houses. This video usually shows a DUI defendant entering the station, interacting with the police officers, and hanging out in the cell. Why is this important? Because in DUI cases, the police report almost always describes the defendant as stumbling, falling, nodding off, or otherwise acting in a drunken matter. But what the station house video often shows is a defendant doing what he’s told, and walking and behaving in a normal manner. That can be powerful evidence to combat what we will call a police officer’s ,“exaggerations.”

So if video exists, the police should provide it to the prosecutor, who should, in turn, provide it to a defendant, right? Well, yes, but what should happen is rarely what does happen.  As observed in the Koonce case, the MPD has a policy of taping over their station house video every 30 days. If the prosecutor does not contact them to request the video of a D.C. DUI defendant, then the video is simply destroyed. And for some reason, the D.C. Attorney General’s Office doesn’t simply request the video in every DUI case.  After the Court’s decision, however, that practice will likely change.

The Koonce decision is based on the District of Columbia Superior Court Criminal Rules, specifically, Rule 16. The test under the rule as to which materials the government must turn-over to a defendant’s lawyer is whether the evidence is “material to the preparation of a defendant’s defense.” In addition, any items in the possession of the government that are considered to be material must be preserved by the government. To paraphrase the court in Koonce, it’s tough to argue that video showing a Washington, D.C. DUI defendant’s appearance and actions soon after his arrest is not “material to the defense.”

Prior to the new ruling, skilled Washington, D.C. DUI attorneys were already making a big deal over station house video. We would routinely request it at arraignment, and yell our heads off if it wasn’t provided by the status hearing. Remedies for this discovery violation ranged from preventing breath test scores or toxicology reports from being admitted into evidence, to out-right dismissal of the case. But each judge treated the issue differently, and not all judges believed the government committed a violation by failing to preserve the video. After Koonce, however, judges must acknowledge the government’s duty to preserve and disclose station house evidence in DUI cases.

Your Washington, D.C. DUI lawyer should request all video in your case, and make sure the government meets its obligation. While they are now on notice, that doesn’t mean that they won’t slip up. And if they do, your attorney should be ready to pounce.

If you’ve been arrested for DUI in Washington, D.C., Arlington, Alexandria, or Fairfax, contact Scrofano Law PC for a free in-office consultation.