Does every DUI discovery violation result in suppression of evidence? When is it appropriate for a trial judge to exclude field sobriety tests?
See People v. Olson, 2015 IL App (2d) 140267 (06/05/1015).
The sky has been declared to be falling because of a case where the appellate court reversed the trial court’s suppression of field sobriety tests.
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As with many DUI cases, this one began with a traffic stop by a state trooper.
Eventually, the trooper has the driver perform field sobriety tests. The squad car was equipped with a video camera. Although the camera was actually rolling and recording, the Defendant’s performance on the field tests was not captured.
The squad was not positioned so that the officer and Defendant were within the field of view! The officer explained that the location was tricky, and it was just safer to do the tests off camera.
It turns out, there is this State Police law that says that troopers:
“…shall record activities outside a patrol vehicle whenever (i) an officer assigned a patrol vehicle is conducting an enforcement stop; (ii) patrol vehicle emergency lights are activated or would otherwise be activated if not for the need to conceal the presence of law enforcement; or (iii) an officer reasonably believes recording may assist with prosecution, enhance safety, or for any other lawful purpose…” 20 ILCS 2610/30(c).
The defense attorney argued at the trial level that a “discovery violation” has occurred because the trooper had an obligation under the law to record the field tests, yet he failed to do it.
This in turn deprived the defendant of a fair trial because a video of defendant’s performance on the tests would have clearly revealed he was not inebriated.
A Law Without a Remedy
The appellate court looked at the statute mentioned above.
The court noted that the statute did not describe the consequences for non-compliance. In other words, the statute does not say what should happen in cases where the state police do not record a traffic stop.
This is very important.
Not every law is actually a mandatory law. Laws by lawmakers are different from the rules you may have at home.
Imagine if you came home to find that your kids ignored all your household rules. You come home, kid has not done his homework, his room is a mess, he had ice cream against the rules and then he tells you.
“Hey man, I know you said you made these rules, but you didn’t tell me what would happen if I did not follow them. Clearly your rules were not mandatory but only discretionary. So, I choose not to follow them up today.”
That does not happen.
Your kids are suppose to not want to find out to see what happens for not following the rule. The law doesn’t exactly work like our household rules.
“Statutes are mandatory if the intent of the legislature dictates a particular consequence for failure to comply with the provision. In the absence of such intent the statute is directory and no particular consequence flows from noncompliance. Under the mandatory/directory dichotomy, language issuing a procedural command to a government official is presumed to indicate an intent that the statute is directory. This presumption is overcome when (1) there is negative language prohibiting further action in the case of noncompliance, or (2) the right the provision is designed to protect would generally be injured under a directory reading.” ¶ 15 quoting People v. Borys, 2013 IL App (1st) 111629.
The appellate did not think that any important right of the defendant’s was being injured simply because the state trooper failed to record the field sobriety steps.
The appellate court, thus, reversed the trial court’s decision to suppress evidence of how Defendant performed the tests.
Kladis Does Not Come to the Rescue
Yes. The defense was relying, in part, on the case of People v. Kladis, 2011 IL 110920.
In that case, DUI evidence was suppressed because of a discovery violation. The defense attorney had been making formal discovery requests for the video recording in the possession of the police department.
The State never hunted down the video to tender it to defense counsel. By the time the State decided to go look for the tape the police had informed them that the video was destroyed.
It was under this specific fact pattern that the trial judge suppressed any evidence of the field sobriety tests. Anything that would have been depicted on the tape was not allowed to be discussed at the trial.
Since then, Kladis has been held up as the case to cite in order to get evidence suppressed when their is a discovery violation.
But it is not the end all and be all case of discovery violations.
Trial Judge's Reasoning
The trial judge certainly felt there was a discovery violation here.
The trial court said it would have been so easy for the trooper to reposition the car so that the tests could be recorded. The trooper could have moved the tests to another safer location just as easily.
Not talking miles away either.
Just like a few feet in a given direction. The trooper’s dismissal of the importance of recording probably annoyed the judge.
So, the trial judge was thinking that not only was their a violation of the law but also a discovery violation because not recording the fields was the same as recording them but then destroying the tape before handing it over.
Appellate Court Sees No DUI Discovery Violation
Appellate Court Saw it differently.
There was no discovery violation here because the defense counsel was given the video tape. The tape did not show anything, but the defense counsel got it.
Quoting a similar court the appellate court found that:
“…There is nothing in this record to support any inference or suggestion that the police or the prosecution intentionally or inadvertently destroyed any preexisting discoverable evidence…Given the facts of this case, absent a showing that the State lost or destroyed the audio component of the video or the existence of some other factor to justify a discovery sanction, there was an abuse of discretion in barring testimony concerning the field sobriety tests and in prohibiting the introduction of any video that showed the performance of those tests due to the State’s failure to produce any recording of any audio that presumably occurred at the time the video was created.” ¶ 20 quoting People v. Strobel, 2014 IL App (1st) 130300.
The trial court was reversed.
The reaction to this case from the defense bar is that Kladis is being severely limited.
When they say this they mean the general idea that you can win suppression of evidence upon a showing of some kind of discovery violation.
But Kladis was limited right from the get go.
Case after case after Kladis has emphasised that suppression of evidence is a harsh remedy and a last resort kind of thing. The facts in Klandis were extraordinary because they involved ignoring discovery requests and actual destruction of evidence.
I’m not saying you need that before a court actually suppresses evidence, but it has to be something of that type of caliber.
So, I am not so pessimistic about this case. I find it consistent with Kladis. And I don’t think the sky is falling down.
One last thing.
The appellate court finished off by saying that no evidence exists suggesting that the trooper conducted the field sobriety tests away from the car for any reason other than for the safety of both himself and defendant.
Implying that is this was not true we have a different game.