A Fairfax County Judge has dismissed some DUI cases because of problems with the officer's patrol car camera.
Defense attorney Eric Clingan discovered the problem and presented it to a judge. He had accepted a case for a Fairfax County businessman who was arrested Dec. 8 on a DUI charge, after an officer approached the man as he sat in his idling car near his home. When Clingan first watched the patrol car video, he immediately spotted problems.
"The first thing you notice is you have no audio and your client was taken off the screen," said Clingan of The NoVA Law Firm.
The officer's microphone does not record any of the conversation with the DUI suspect. Then when the officer takes the man out of the vehicle for the field sobriety test, he's walked in front of the police car and out of camera range.
The client said he was horrified that night when the officer handcuffed him.
"I was speaking properly. I wasn't falling, you know. I did all the field sobriety tests well," he said. "So basically at that point it was my word against his but I had nothing to show."
Clingan did some digging into the officer's other recent DUI arrests and found three other almost identical cases -- no audio and no field sobriety video. He contacted the three other lawyers and they decided to approach the judge as a group Friday. They asked that the DUI cases be dismissed.
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Clingan said he provided the first arguments, pointing to the police department's general orders that require video equipment be checked out before every shift. The instructions also make it clear that the patrol car camera is mounted on a 360-degree swivel and can be repositioned. Clingan said that could have happened safely once a backup officer arrived. He appears in the video shortly after the suspect is walked away from the camera.
"There was no credible explanation regarding why the video camera, after the backup officer arrived, was not turned to the area where the field sobriety test could be taken," Clingan said.
As for the missing audio, Clingan said the officer testified that he did not check it before his shift.
After hearing Clingan's arguments, the judge dismissed all four cases, finding the defendants were deprived of evidence that could have helped their cases.
"If you aren't going to use the video, you are effectively putting yourself as an officer at risk for various accusations but also hurting the community as a whole because they have made a determination that they want this equipment used," said Clingan.
His client said he was euphoric with the judge's ruling.
"With everything going on in society today, now more than ever it's important for the citizens to be protected as well as the officers," he said. "I think audio and dash cams and body cams are going to end a lot of issues we are seeing today."
A Fairfax County police spokesman said they have no details yet about the cases in question so they are unable to comment. He said while officers are urged to get video of field sobriety tests, it's not required.
