Lake and Cook County Defense Attorney Discusses Discovery Violations in Driving Under the Influence (“DUI”) Cases Pursuant to People v. Kladdis

People v. Kladdis involved an appeal from the State of Illinois in which the trial court sanctioned the prosecution for the inadvertent destruction of a videotape.  The defendant was arrested for Driving Under the Influence of Alcohol in 2008.  Shortly after arrest, the Defense requested a copy of the in-squad video in a Rule 237 Notice to Produce prior to the first court date.  At the first court date, the Defense also made an oral Motion for Discovery pursuant to People v. Schmidt, specifically requesting a copy of the videotape.  The court questioned the arresting officer about the existence of a tape and the officer confirmed that such a tape existed.  The prosecutor agreed to locate and tender the video to the Defense.  However, it was determined that the video captured during the defendant’s arrest was purged pursuant to police departmental policy.  The Defense then filed a Motion for Sanctions.  A hearing was held on the Motion for Sanctions during which the officer testified that the video would capture anything from five seconds prior to the activation of emergency lights until the defendant’s arrest for DUI.  The trial court sanctioned the prosecution by not allowing any testimony on any observation made by the officer during this time period.  This included the Defendant’s Field Sobriety testing (FST).  Since the defendant did not blow into a breathalyzer, the FSTs were the primary evidence against him in a DUI trial.  The prosecution filed a notice of substantial impairment stating that it would not be able to proceed in light of the trial court’s ruling and the case was ultimately appealed to the Supreme Court of Illinois.

On appeal, the State argued that it had no duty to tender the videotape pursuant to People v. SchmidtSchmidt  limits what the prosecution must give to the defense in misdemeanor DUI cases to: 1) a list of witnesses, 2) any confession of the defendant; 3) evidence negating the defendant’s guilty or innocence and 4) the results of any breathalyzer test.  The state argued, therefore, that since videotapes are not listed in Schmidt, they did not have to produce it.  The ILSC noted that Schmidt was a ruling from 1974.  Since that time, in squad video recording has become prevalent and is frequently used in the truth seeking process of trial.  Furthermore, the court noted that recent Illinois legislation (20 ILCS 2610/30 and 720 ILCS 5/14-3(h-15)) both specifically stated that videotape be preserved if intended to be used in a criminal prosecution.  The court held that the destruction of the videotape was clearly a discovery violation by the prosecution and subject to sanctions by the trial court.

The court next turned to whether or not the sanction imposed by the trial judge was reasonable.  The court, noting that discovery sanctions are left to the sound discretion of the trial judge, ruled that it was indeed reasonable to exclude any testimony of any observations made by the officer during the time the incident was being recorded.  The state argued that such a sanction was too severe.  However, I am at a loss trying to figure out what that what that sanction might be?  No less “severe” sanction was stated in the Kladdis and it is unclear from the written decision if any other sanction was suggested by the State. The court notes that there was still evidence that could have been used to prosecute the Defendant including observations of driving prior to the emergency lights being activated and evidence after the defendant was arrested and transported to the police station.

This blogger has handled several cases where a videotape was destroyed.  In none of my cases do I believe the police or prosecution intentionally “destroyed’ or erased the tape.  However, I have used the Kladdis analysis and have obtained dismissals in a few cases where a video was destroyed.  In some of them, however, my client wound up blowing into the breathalyzer.  With such a set of facts I had to evaluate my chances of success at a Motion to Suppress even if I prevailed on a Motion for Sanctions.  In any event, an experienced DUI lawyer will know the steps that are necessary to proceed at a later date on a Motion for Sanctions in the event that a video is destroyed or erased.  Filing a Rule 237 Notice to Produce along with a written Motion for Discovery, as was done in Kladdis, is a smart move.  Slapping a subpoena on the police department as soon as possible will also preserve your right to Sanctions should a tape be erased.  In any event, it is essential that an attorney with experience in DUI law and its recent caselaw be retained as soon as possible after arrest.