DUI Appeal of the Day (DAD) - State deliberately destroyed potentially exculpatory evidence

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In State of Delaware v. Wright, Not Reported in A.3d, 2011 WL 826357 (2011 Del.Com.Pl.),upon entry of appearance, counsel for the Defendant filled a request under Court of Common Pleas Criminal Rule 16 for the production of “a copy of the videotape/recording device of the in-station security tape/recording, as well as the 20 minute observation period”.FN1 Defense counsel proffered that there “was not a 20-minute observation period and that the examining officer left the room during the observation period.” FN2 This observation period is required to properly lay the foundation for admissibility of the intoxilyzer test results at trial. Upon subpoena, the chief would constantly respond that:

Please be advised that The Rehoboth Beach Police Department does not have a video tape of your client walking into the building or of the twenty minute observation period. We have a surveillance camera that is used for security purposes monitored by our Dispatch Center. This device records for immediate playback only. There is no retention of these recordings.

His system was built to hold up to 2.6 days of video when set to record 24/7, and about 4.6 days when set for motion only. However, in reality the system worked much longer, and the police often retrieved video when accused of assaulting arrestees or for other beneficial purposes. Thus, the chief knew that his statements were false or misleading. His misleading statements were repeated for years, as evidence was allowed to be erased and destroyed.



When the trial court here found out, it suppressed the breath test as a sanction based upon a discovery violation:

The Court finds that the Rehoboth Beach Police Department's discovery policies constitute entrenched, flagrant misconduct. Between 2006 and 2009, Chief Banks repeatedly distributed incorrect discovery responses to defense attorneys despite his knowledge that these responses were misleading and incorrect.

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