In any prosecution by the state, it is critically important that a defendant be able to review any and all evidence that could be used against them in court. A long series of court rulings has established defendants’ right to this evidence. Unfortunately, prosecutors and police are not always forthcoming with evidence. In driving while intoxicated (DWI) cases, footage from police dashboard cameras, also known as mobile video recorders (MVRs), can sometimes help a defendant rebut the state’s charges. According to a ruling issued by the New Jersey Appellate Division in late June 2016, Paff v. Ocean Cnty. Prosecutor’s Office, these videos are part of the public record. This ruling could be a double-edged sword for DWI defendants, however. They might be able to access their own MVR footage more easily, but so can anyone else.
The common-law right of access, as described by the U.S. Supreme Court in Nixon v. Warner Comms. in 1978, holds that the public has “a general right to inspect and copy public records and documents.” Statutes like the federal Freedom of Information Act (FOIA) and the New Jersey Open Public Records Act (OPRA) also address public access to government records. This is different from a defendant’s right to information specific to their case. In some situations, the government may have a legitimate reason to withhold information from the general public that they must provide to a defendant. Since the Ocean County ruling expands the public’s right to obtain information from the government, it is reasonable to conclude that it can benefit people charged with DWI and other offenses.
The downside to the ruling is that making MVR footage available to the public has implications for DWI defendants’ privacy rights. Footage of a traffic stop, potentially including field sobriety tests, could cause embarrassment or other negative outcomes. This is especially worrisome if video footage is released while a DWI case is still pending, or after an acquittal or a dismissal of charges.
The court’s opinion in Ocean County quotes from an order issued by the Barnegat Township Police Department regarding the use of MVRs during traffic stops. It states that the MVR must continue recording until “the incident has been completed,” or the officer has released the vehicle and driver. With regard to DWI stops, the order states that an officer conducting field sobriety testing should, if possible, adjust the camera so that the tests are recorded, but the officer should never conduct tests “in the area immediately in front of the patrol vehicle.” Police departments throughout New Jersey have similar policies regarding MVR use.
The Ocean County plaintiff is an activist for government transparency in New Jersey. He requested MVR footage of a high-speed chase in Barnegat Township that resulted in charges of official misconduct and aggravated assault against one of the officers. The police department refused his request, citing the “active criminal investigation” exemption to the OPRA. The plaintiff sued under the OPRA and the right of access doctrine.
The court rejected the defendant’s argument that the video was part of an ongoing criminal investigation, finding that it was a record made in the ordinary course of police business, not specifically as part of an investigation. It also rejected the defendant’s privacy argument, ruling that “[d]rivers and passengers in vehicles operating on public roadways do not have a reasonable expectation of privacy in an MVR recording.”
If you are facing an alleged DWI charge in New Jersey, an experienced and knowledgeable DWI attorney like Evan Levow can help you understand your rights and defend you against the state’s allegations. Contact us today online or at (877) 593-1717 to schedule a free and confidential consultation with a member of our team.
More Blog Posts:
Motorist Settles Lawsuit Against City Involving Arrest for Alleged DWI, New Jersey DWI Attorney Blog, March 6, 2015
Court Ruling May Make Footage of Traffic Stops Available Earlier in New Jersey DWI Cases, New Jersey DWI Attorney Blog, November 28, 2014
New Jersey Law Enforcement Patrol Vehicles Required to Have Video Cameras Under New Law, Funds to Come from New DWI Surcharges, New Jersey DWI Attorney Blog, October 1, 2014