How Technology Is Reshaping DUI Defense

When it comes to law and technology, if you throw a rock, you'll hit someone claiming that legal tech is about to revolutionize practice. But it's not just Big Data and virtual paralegals that are changing how things are done.

Even in DUI defense, new technology is amplifying attorney resources and reshaping the balance of power in discovery, especially when it comes to video footage and audio recordings.

Using Technology for a Better Defense

Of course, you wouldn't know about these developments if you looked at law enforcement. Officers today are still likely to use the same breathalyzer technology and one-leg stand tests that they've relied on for decades. But, after a DUI arrest, technological developments are making a real difference in defense.

That's just one of the many takeaways from Trends in DUI Discovery, part of Aspatore's "Inside the Minds" series. (Disclosure: Aspatore is owned by Thomson Reuters, FindLaw's parent company.)

One of the advantages of increased technology is the proliferation of video and audio recordings of interactions between officers and suspects. That electronic evidence can be examined and compared to the details in police reports or court testimony. That evidence can be used to challenge field sobriety tests. It can, for example, rebut claims that a defendant stumbled, according to Chad J. Wythers, a partner at Berry Law Firm and contributor to Trends in DUI Discovery. Such evidence can also be used to see if prior procedures were followed in conducting the sobriety test, potentially leading to a test's suppression.

Beyond the Dash Cam

DUI defense attorneys shouldn't limit themselves to just dash cam footage. Other recordings that might be available and valuable include:

• Independent Video Footage: Recordings from store security cameras, convenience stores, restaurants, and the like can prove invaluable, helping to impeach an officer's testimony or prove that no traffic violation was committed.
• Conversations Between Officers and Dispatch: Many jurisdictions keep electronic recordings of communications between officers and dispatchers. These recordings can be used to show a lack of probable cause for the stop; the reason officers tell dispatch they are stopping a suspect, for example, might be different from those given later and they might not be sufficient to support probable cause.
• Cell Phone Records: Some breath testing devices require officers to observe a suspect for a specific period. If an officer has been using his or her personal cell phone to make calls, text, or play angry birds, an attorney can argue that the necessary observation wasn't made.

Finally, there's plenty to be said for the Internet. Simple searches of online databases can provide important information that could be used to discredit an officer, with just a few keystrokes.

Related Resources:

• Discovery of Breathalyzer Source Code in DUI Prosecutions (Washington Journal of Law, Technology and Arts)
• DUI Lawyers and 'Drinking' Holidays: What's Your Marketing Strategy? (FindLaw's Strategist)
• Marijuana DUIs Are On the Rise: Time to Shift Your DUI Practice? (FindLaw's Strategist)
• DUI Defenders Pick Your Poison: Probable Cause or Plea Bargain (FindLaw's Strategist)