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04 Oct 2012

Lost or Destroyed (?) Video Yields Wet Reckless

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CW was charged with DUI causing property damage arising out of an accident on November 27, 2006, in Sebastian, Indian River County, Florida.  Witnesses told police that CWs full-size Chevrolet pickup began to fishtail after she pulled away from a traffic light on U.S. 1.  There was a light rain, and the road was wet at the time of the incident.  It had just turned dark.  CW nearly regained control of the vehicle, but it sideswiped a telephone pole.  Although the impact was sufficient to break the pole, the pickup remained operable.  CW pulled the vehicle off the road at the next intersection.

When CW got out to inspect the damage, her dog also slipped out.  The dog was, apparently, confused by the impact and the new surroundings.  The dog wandered away.

An Indian River County Deputy arrived at the scene to investigate the accident.  CW was preoccupied with trying to locate her dog.  The Deputy interpreted CWs concern for the dog as evidence of impairment.  The Deputy asserted that CW did not directly face him as he was questioning her.  CW insisted that she was attempting to locate her animal.

CW suffered from a congenital medical condition called Arnold-Chiari Malformation.  Expert sources established that this malformation is a boney outcropping in the area of the brain controlling physical motor skills.  These sources suggested that sudden impacts could result in a variety of symptoms such as disorientation, balance problems, nystagmus, and lack of dexterity.  The Deputy observed these symptoms and construed them as further evidence of impairment.

The Deputy arrested CW for DUI and transported her to the Indian River County Jail.  The Deputy said he could smell the odor of an alcoholic beverage about CWs person.  At the jail, CW refused to submit to a breath test.

During the course of discovery, the defense initially determined that the jailhouse digital recording did not contain an audio track.  The video itself supported CWs claim of innocense.  Repeated requests were made to the State to turn over a copy of the roadside video that was taken by the arresting Deputy.  The defense was later advised that the roadside video had been accidentally erased pursuant to a standard procedure.  The Deputy claimed that the roadside video should have been, but was not, pulled.  Therefore, it was accidentally erased.

Attorney Garland filed a Motion to Dismiss based upon the destruction of material evidence.  The defense could not show, however, that the destruction of either the sound track or the entire roadside video was intentional.  Even so, the defense could seek dismissal or lesser sanctions if the Court were to agree that the lost evidence was essential to the defense.  CW elected to plea to a lesser charge of wreckless driving.  On April 11, 2007, County Judge Joe Wild withheld adjudication and followed the plea agreement, to-wit: $250.00 fine plus court costs, DUI school, and six months probation with a condition of no consumption of alcoholic beverages.

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