Video of an individual taking the field sobriety tests in a Massachusetts OUI arrests rarely exists as most Massachusetts police departments do not have cruiser video.  This is surprising to most people that meet with me to discuss an OUI charge believe that the entire encounter will be on video of their OUI arrest.  In fact this assumption is not true.  Most police departments do not have cruiser video.  The State police does not use cruiser camera and only a small fraction of local police departments have cruiser video.  You are more likely to find a cruiser video in Worcester county than most of the other counties.  While this is not an exhaustive list, the following police departments have cruiser video in at least some of their police cars.

Police Departments with Cruiser video

• Webster
• Mansfield
• Northborough
• Southborough
• Hopkinton
• Hingham
• Upton

It is more common to find video at the booking, though most State police departments with not have video of the booking process.

Only a four barracks that I have encountered have video in the State police barracks, all without

sound:

State Police barracks with booking video

• Andover
• Dartmouth
• Milbury barracks
• South Boston

The local departments I would say about 50% have some sort of video in the booking process either with or without sound.

Booking video with sound

• Weston
• Waltham
• New Bedford
• Canton
• Amherest
• Mendon
• Bellingham
• Sutton
• North ridge
• Douglas
• Blackstone
• Freetown
• Rehoboth

Local police departments with Booking video with no sound

• Fall River
• Attleboro
• North Attleboro
• Stoughton
• Norwood
• Waltham
• Franklin
• Wrentham
• Foxboro
• Upton
• Milford
• Natick
• Ashland
• Norfolk
• Seekonk
• Swansea

Why should police departments record the entire OUI encounter?

Being charged with an OUI is a very subjective determination.  An officer will say that based on their observations, you appeared under the influence.  But did you really perform poorly on the field sobriety tests and under what conditions.  Without a video, it is hard to recreate the extract circumstances of the exercises.  Jurors would obviously prefer to view a defendant for themselves in determining whether someone is under the influence of alcohol.  It is a very subjective judgment, so why are not more police departments giving judges and jurors the best evidence.  It is not because of cost.  The cost of preserving video is very minimal; some very small police departments have both cruiser and booking video.

What has been the impact of video in cases I have had 

I have had video show that the client did not have slurred speech, or appeared to have good balance during the booking process.  The clients walk into the booking area, stand sometimes for long period of time. I would take that time and tell the jury they stood for 10 minutes without issue, no sways or difficulty with balance.  Typically, the clients stand for the fingerprints next to the officer sand I use that to show that the person had good balance.

You can gain so much from the video that wil not be in the officer’s report.  In one case with cruiser camera, I remember the officer was doing the one leg stand with the client, which I argued can be distracting.  You can see where the other officers are. Often, the officers will say they have to reach out to grab the person. I have had cruiser video showing that the officer was crowding the defendant, not giving enough room.  Officers will say that a defendant fell out of the instruction strance in the report. On the cruiser video, I have seen that where the officer demonstrated the exercise the client had to look in that direction making the stance more awkward and that the falling out of the stance was just repositioning the feet.  When the breath test is being used in court, the video often shows that the officers are not watching the defendant for 15 minutes as required by the regulations.

What can the Court do to urge police departments to implement video?

In Illinois, there is a requirement that the State police record traffic stops; however, the courts have not provided a remedy if this requirement is not satisfied. The Massachusetts Supreme Judicial Court has ruled that police interrogation should be recorded and the failure to record them entitles the defendant to a jury instruction that the SJC prefers interrogations to be recorded. The SJC should allow defense attorney to request a similar jury instruction that the jurors can consider a lack of video evidence in determining whether the subjective opinions of the officers meet the standard of proof beyond a reasonable doubt.  I think it is through the court granting defendant’s jury instructions that address the obvious lack of video that more police departments will see the need to record the entire OUI encounter, which can easily be done given the low cost of video in today’s age.

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