The MPD and U.S. Attorney’s Office are now on notice that they must preserve station-house video of DUI/OWI suspects (not just celebrities)

Terrence Melvin Koonce v. District of Columbia, No. 13-CT-0494 (decided March 19, 2015).

Players: Associate Judges Blackburne-Rigsby and McLeese, Senior Judge Ruiz.  Opinion by Ruiz.  Concurrence by McLeese.  Nicholas Q. Elton for Mr. Koonce.  Motions Judge: Franklin A. Burgess.  Trial Judge:  Ronna L. Beck.

Facts: Late in the evening, Mr. Koonce’s SUV collided with another car, setting off a chain of collisions with two more cars.  Undeterred, Mr. Koonce continued on his way and collided with a pickup truck, followed by yet another car, at which point his SUV, now missing a wheel, came to a stop.  The MPD officers on the scene testified that Mr. Koonce swayed back and forth, had slurred speech, and smelled strongly of alcohol.  Mr. Koonce refused to submit to field sobriety testing, stating “[I am] not as drunk as they think I am.”  When informed that refusing testing could result in having his license suspended, he responded, “Revoke it for six months.”  The police found an open bottle of vodka, which was removed, photographed, and discarded. 

At the station, Mr. Koonce was placed in a holding cell.  He explicitly refused to provide a urine sample and fell asleep in his cell before he could consent to or refuse blood testing.  There were cameras located in the cell block, but by the time of trial, the video from the night of Mr. Koonce’s arrest no longer existed.  Per MPD practice, video of a particular day will be available for approximately 30 days, but is then recorded over.  The defense requested any video evidence 34 days after the incident, but the government did not act until shortly before trial, by which time the video was no longer available.   

Issue 1: Was the government obligated to preserve the vodka bottle and the stationhouse video under Superior Court Criminal Rule 16 (a)(1)(C)?

Holding:  Yes.  As the to video, the Court held, “In the statutory and evidentiary context of DUI/OWI prosecutions, it takes a small, logical step to conclude that video that captures a suspect’s appearance, speech or actions soon after arrest and that records when the suspect is being . . . asked to submit to testing will be material to the defense.”  The video was “material” under Rule 16 and the government was obligated to preserve it. 

As to the bottle, Rule 16 requires the government to preserve seized items belonging to the defendant. 

However, under the facts of this case, there was no due process violation because there was no “willful refusal” by the government to preserve the requested evidence, and the trial court did not abuse its discretion in refusing to dismiss the case on due process grounds.

Issue 2: Did the trial court abuse its discretion in refusing to instruct the jury to infer that the unpreserved video supported the defense (but rather that the video had been requested but was destroyed pursuant to policy, and the jury could draw its own conclusions)?

Holding:  No.  The Court found that the government had been negligent in failing to preserve the video, but that there had been no “willful act” warranting a negative inference.  The Court also noted that the other record evidence about Mr. Koonce’s behavior and appearance strongly suggested that the video would not support the defense.

Issue 3: Did the trial court abuse its discretion in failing to suppress the photograph of the bottle as a sanction for the government’s failure to preserve the actual bottle?

Holding:  No.  Although discarding the bottle was deliberate, it was not done in bad faith.  Furthermore, the case turned not on whether the bottle was open, but whether Mr. Koonce was intoxicated, for which there was independent, substantial evidence.

Concurrence (McLeese):  Joining in the judgment, but disagreeing that the government had a duty to preserve the police station video.

How to Use: The Court noted that this time the government had not acted in bad faith for apparently not realizing that the video evidence would be lost due to standard MPD procedures.  However, “once the government is on notice of its obligations with respect to foreseeably discoverable items of evidence in DUI/OWI cases that are likely to be in its possession”—as it presumably is after this opinion—“lack of ‘willfulness’ ceases to be a defense to sanction for failure to preserve discoverable evidence.”  CP

Read full opinion here.