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Body Camera Footage and DUI

Posted by Jason Rapp | Oct 25, 2019 | 0 Comments

There are a lot of things that go in to evaluating a client's options with respect to a DUI charge.  It is much more than just the blood alcohol concentration number.  Here in Lexington, Kentucky and most of the surrounding counties, police officers have gone to using body cameras for nearly all interactions, including DUIs.  This has helped tremendously in working with clients in protecting and preserving their rights.

There are numerous policies and procedures that police officers must follow with respect to the investigation and charging of a DUI.  These are found in both the Kentucky Revised Statutes and the Kentucky Administrative Regulations.  They have also been interpreted by Kentucky Appellate Courts in several very important decisions.  The following story will illustrate why body camera footage and knowledge of these policies, procedures and case law can greatly assist in serving a client.

I had a client charged with a DUI.  He blew a .195 on the Intoxilyzer.  The level for a per se DUI is .08 (people refer to this as the "legal limit," but that is a misnomer).  In Kentucky, once the number gets above a .15, it is an aggravator.  This means that automatic mandatory jail time is triggered.  There are several other aggravators as well that will be discussed in future blog posts.  As a quick aside, in the volumes of DUIs that I have handled, I have seen more than a few in the .35 to .4 range.  At that point, I don't see how people could even spell "car," let alone drive one.

Being that this was his first offense, an aggravator triggers an automatic mandatory minimum of four days in jail.  Now, my client was an every day, normal and hard-working guy.  He just made a mistake.  He had no criminal record as was terrified at the prospect of serving four days in jail, if it should come to that.  Lucky for him, he was about to be saved by a review of the body camera footage.

You see, the police had made a monumental mistake.  They didn't do it on purpose and it was not nefarious in any way.  They were simply human, as we all are, and messed up.  To their credit, they both acknowledged it on the body camera footage and did nothing to try and conceal it.

In Kentucky, once you submit to the officer's requested test/tests, you have an absolute right to an independent blood test at a local hospital.  The police also have to transport you to the hospital for the test.  In Lexington, it will be to The University of Kentucky Hospital.  Now, you are the one who has to pay for it.  However, according to Kentucky law, the police have to make sure you have the ability to pay for it on you and/or offer you the opportunity to get a payment method set up.  

In the case I am talking about, they never did this.  They left my client's wallet in his car and did not give him the opportunity to call someone to have them pay it for him.  Again, they weren't trying to play any games, they just messed up.  This was all on the body camera footage, as was them acknowledging they had forgotten his wallet in his car while on the way to the hospital. They got to the hospital and, of course, my client could not get his independent blood test without a method of payment.  They took him back to the jail and he was charged with DUI.

He called me a day or two later and retained me.  I got the body camera footage from the prosecutors and this jumped out.  When it was pointed out to the prosecutors they had no choice but to acknowledge the issue and my client left court a very happy man.  I must point out that I greatly respect the police officers and the prosecutor for not trying to play any games, acknowledging the key issue and handling it so professionally.

This was not the first, nor will it be the last, instance where body camera footage has greatly helped a client in a DUI/criminal matter.  I hope this blog has helped you as well.  Have a great day.

--Jason Rapp 

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