Audio and Video During the Field Sobriety Test
Interviewer: Are there any cameras at any point recording someone during the process?
Jerald Novak: It’s interesting. A lot of jurisdictions do have audio and video. The good thing is that when the police officer activates the emergency light on the roof of the vehicle, it automatically starts to take the video images and preserve them. That video is running at all times but only once the emergency lights are activated that it starts preserving that video. What it does is, it rewinds back several minutes so in that way, they attempt to capture any traffic violation. The lens would flip the switch on the emergency lights and the video would start at that moment, and you’d never be able to witness the traffic violation or perceived traffic violation.
Now, they do wear a microphone. The only problem I have with the microphone is they are completely in charge of turning it on and turning it off. It’s very easy for the officer to turn it off, say certain things to elicit a response from the motorist and then turn on the microphone only to hear the response without the question. That becomes a little bit of a concern for me.
Interviewer: Is there a time where you’ve dealt with cases where someone has said things and it’s been recorded but it’s revealed that is out of context?
Jerald Novak: Absolutely. The best case I can recall on that situation is a client had come in to me and said, the police officer said X, Y, and Z. I said, “Well, great. We’ll get the audio and video tape and we’ll be able to see.” What had happened is the police officer was turning the microphone on and off. My client was very upset. He says, “We’re not going to be able to prove that he said these things but he absolutely did.” I said, “I absolutely believe you.”
What we’re going to do and what we did do is we hired a lip reader. We got a lip reader to come in and watch the video, and we got the lip reader to testify as to what the police offer said. We end up winning that case and getting a not guilty for my client.
As of July 1, 2014, there’s a new law that goes into effect that will require all jurisdictions to equip their police vehicles with audio-video equipment to record DUI arrests.
Interviewer: How do you think the video will help someone’s case and how do you think this might hurt someone’s case?
Jerald Novak: I love video because let’s face it: We’re all human beings and everyone always tells the story to their best advantage. The police will always color the facts in their favor. The clients will also color the facts in their favor. I really like video because I get to be there. I get to see exactly what was said. I get to see exactly how somebody responded. I get to see exactly how the tests were explained. I get to see exactly how the tests are demonstrated. Then, I can look at the reports and see exactly how the police officer scored the results of the tests. That’s wonderful. That’s absolutely wonderful.
You’d be surprised what people would say and do, and not realize it’s being recorded. I would say that video is probably the number one most important piece of evidence there is.