dui, refusal dismissed for failure to preserve

Summary: Police fail to preserve recordings results in Attorney Fred Slone obtaining dismissal of drunk driving and refusal charges.

Drunk driving can be referred to by several acronyms: DUI DWI OWI OUI.

alaska vs. c. r., district court, Unalaska

client alleged drunk & refusing to submit to test

C. R. is a manager for a marine company in western Alaska. He was stopped while driving his vehicle, administered field "sobriety" exercises and arrested for driving while intoxicated. He was taken to a police station where he allegedly refused to submit to a breath test. He was charged with driving while intoxicated (DWI) and refusal to submit to a chemical test (refusal).

police fail to preserve recordings

Attorney Fred Slone Slone was retained, and requested all discovery materials from the District Attorney’s Office, including copies of all audio and video recordings made at the police station. It was finally discovered that no audio or video recording at the police station was preserved. Thus, there was no objective means of determining of whether the officer advised C. R. of the ramifications of refusal to submit to a chemical test, other than the testimony of the officer. Likewise, there was no objective evidence indicating whether the officer has advised C. R. of his right to an independent blood test, other than the officer’s testimony.

motion filed to suppress evidence

Thus, Attorney Slone filed a pretrial motion to suppress (exclude) all evidence relating to C. R.’s alleged refusal to submit to a breath test. Attorney Slone also requested that the court give an instruction to the jury at trial that the jury must presume that a blood test, had one been offered, would have been favorable to C. r. on the issue of intoxication.

police fail to notify

A pretrial evidentiary hearing was held in which the arresting officer, and other officers in the booking room testified. The arresting officer testified that he fully advised C. r. of the ramifications of refusal as required by law, including that refusal to submit to a chemical test was a crime. He also testified that he advised C. r. that he had a right to an independent blood test but that C. r. waived his right to an independent test. C. r., on the other hand, testified that he was never advised that refusal to submit to a breath test was a crime. C. r. also testified that he was not advised of his right to an independent blood test, and that if he had known that he had the right to an independent test he most likely would have taken one.

police admit to destroying evidence or failing to record it

The officer testified that he thought that he had made an audio recording of the events at the police station. However, when he came back to work two days later and attempted to make a copy of the tape for the District Attorney’s Office, he noticed that the tape was blank. He acknowledged, on cross-examination, that he may have accidentally taped over the original tape by inserting it in the wrong slot in the duplicating machine. He admitted that he destroyed the original tape after he discovered that the tape was blank.

not intoxicated by assumption of evidence

After additional briefing, the court granted Attorney Fred Slone’s motions. Based on the failure to preserve a recording at the station, the judge excluded all evidence related to C. r.’s alleged refusal to submit to a chemical test. The judge also ruled that it would instruct the jury at trial that the jury must presume that if C. r. had been advised of his right to an independent test, he would have taken a test, and it would have been favorable to him on the issue of whether he was intoxicated.

all charges dismissed

After the court’s ruling in C. r.’s favor, the District Attorney dismissed all charges.

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