Video evidence can be useful for either side in a driving while intoxicated (DWI) case. Prosecutors may introduce video from a dashboard camera in a police vehicle or an officer’s body-worn camera to corroborate the officer’s testimony about the defendant’s behavior or appearance. A DWI defense lawyer can use footage to chip away at the state’s case, such as by challenging the officer’s justification for making a traffic stop. Body cams have become increasingly common as a way to document arrests and other police encounters. Police departments and city governments may refuse to release body cam footage in some circumstances, although this is rarely the case for DWI defendants. A recent New Jersey Supreme Court decision expands the availability of body cam footage under the state’s Open Public Records Act (OPRA). How this may affect DWI defense remains to be seen.
Prosecutors have two ways to prove intoxication in DWI cases. They can introduce evidence of blood alcohol concentration (BAC) to show that a defendant was above the “legal limit” of 0.08 percent. They may also call the arresting officer and other witnesses to testify about how a defendant looked or how they were acting. Slurred speech, slowed or clumsy movements, and glassy eyes could be signs of intoxication. An officer may testify about these kinds of observations, as well as observations about a defendant’s performance on field sobriety tests (FSTs). Video evidence may support an officer’s testimony, but defense attorneys may be able to use it to refute what an officer claims on the stand.
Video evidence can challenge the state’s case in the hands of a skilled defense lawyer. While the prosecution might claim that a video shows a defendant “failing” one or more FSTs, the defense can point to features that dispute this. For example, the officer might have asked the defendant to perform a test on uneven ground that throws off their balance. Weather conditions like rain or snow could make it difficult for anyone to maintain balance. A video could even challenge an officer’s description of a defendant’s behavior or appearance, such as if claims of clumsy movements were the result of a cracked roadway or other obstruction.
Before the state can even begin to prove impairment, it must establish that the officer had reasonable suspicion that justified a traffic stop. An officer might testify that they saw a car run a stop sign or commit another traffic violation, or that they saw a driver operating a vehicle in an unsafe manner. Video evidence can refute that kind of testimony as easily as it can confirm it.
The New Jersey Supreme Court’s decision, issued in January 2025, addresses issues like how long police must retain body cam footage and when the OPRA does not require police departments to release footage. The OPRA tries to balance the need for access to body cam footage with the privacy rights of people shown in those videos. The case centered on a person’s right to obtain footage of themselves when they have not been charged with an offense, which is typically not an issue in DWI cases.
DWI is a serious offense in New Jersey that can have a significant impact on your life, even if you are only arrested for suspicion of DWI. An experienced DWI attorney can advocate for your rights and prepare a defense for your case. Evan Levow has dedicated his law practice to representing New Jersey DWI defendants. To schedule a free and confidential consultation to discuss your case, please contact us today online or at (877) 593-1717.