GEORGETOWN — A judge declined to dismiss a DUI charge after a police mobile video recorder malfunctioned during an arrest on Feb. 28, 2015.
Defendant Allison Thomas argued that Rehoboth Police policy requires all official actions with the public to be recorded, or explain why they are not.
Court of Common Pleas Judge Rosemary Betts Beauregard, however, determined on Nov. 16 that Delaware police are not required by law to record all DUI arrests, and there was no negligence or bad faith by the Rehoboth officer who stopped Ms. Thomas.
Also denied was Ms. Thomas’ request that the Court announce a missing evidence instruction.
Citing a previous Superior Court decision in a nine-page order, Judge Beauregard “found that there was no substantial prejudice to the defendant because it was not clear the recording had significant probative value in the case, and there was other evidence available to support a finding of probable cause.”
While official Rehoboth Police Standard Operating Procedure discusses MVR use, it apparently does not reference what happens when the device malfunctions, the Court noted.
A second Rehoboth Police officer who arrived at the scene to assist with traffic and safety concerns did not record the incident or investigate, and the arresting officer testified that “It is not department policy for every officer present to make MVR recordings,” according to the order.
During his shift when the arrest was made, the officer reported that his MVR had technical issues with a trouble ticket to his sergeant, which Judge Beauregard found significant.
“It is clear to the Court that [the officer] did not attempt to avoid recording the interaction, or decide to delete the footage,” she maintained.
“Neither does the record reveal any negligence on [the officer’s] part. All of this taken together suggests that the absence of the recording is attributable to a mechanical malfunction rather than human misdeed or negligence.”
Judge Beauregard agreed with Ms. Thomas “that a video may have been more probative than the officer’s testimony, but believes this is an issue of weight.
“The Court will consider the credibility of any testifying officers at trial.”