Appellate Division: Remand for State’s Failure to Preserve Video

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On May 2, 2016, the Appellate Division of New Jersey decided State v. Miraj Patel. Defendant Patel was stopped for speeding and was subsequently arrested for driving while intoxicated. At the trial level, Patel contested the arrest and moved to exclude the breath test results.

Patel argued that the police did not observe him for the required twenty minute observation period before administering the breath test (more on the twenty minute observation period here). Prior to trial, he requested a copy of the surveillance video from the police headquarters. A review of the video may have revealed a violation of proper breath testing procedures. However, the prosecutor refused to release the video and by the time Patel obtained a court order, the video was overwritten. On appeal, Patel argued that the Alcotest reading should be excluded because the police failed to preserve the video.

The Appellate Division found that the video was relevant and should have been provided to the defendant in discovery. The Court found that the State was obligated to preserve the video and was not permitted to allow it to be overwritten after receiving a discovery request from a defendant.

Therefore, the Court remanded the case for a hearing to determine the admissibility of the breath test results. The Court also ruled that the trial court can draw a negative inference against the State for the failure to preserve video evidence.

In regards to the speeding issue, the Court ruled that speeding can be considered as part of a totality of the circumstances test to determine probable cause in a drunk driving case.

The cite for this case is: State v. Patel, No. A-1683-14T3 (App. Div. May 2, 2016). It is an unpublished decision.

If you have been charged with a DWI or DUI, or are seeking to appeal your DWI or DUI conviction, attorney Jason T. Komninos provides free consultations and can be reached at (201) 343-4622.