Ohio OVI Practice Pointer; Destroyed Audio Tape

State v. Smith, 2010-Ohio-1232, 09-CA-42 (OHCA5)

Defendant-appellant Robert Smith appeals his convictions and sentences in the Licking County Municipal Court on one count of Driving under the Influence [Refusal] in violation of R.C. 4511.19 (A) (1) (a), one count of space between moving vehicles in violation of R.C. 4511.34, and one count of marked lanes in violation of R.C. 4511.33.  The Defendant was stopped and arrested for OVI, he raised many issues at the Motion to Suppress including the fact that the audio recordings from the cruiser cam were not provided. The trooper testified that the audio outside his car was not functioning properly but the mic in the cruiser was, and that”s all they had.

The 5th District Court of Appeals held that the audio would have been potentially useful but there was no bad faith by the State.  “The appellant has failed to demonstrate that there is a reasonable probability that, had the evidence been preserved the result of the proceeding would have been different. Accordingly, we find that the evidence was not materially exculpatory but, rather, was potentially useful.  Because we find that the missing audio portion of the tape was potentially useful evidence, we must now consider whether appellant has met his burden to show that the state acted in bad faith. State v. Brown, Licking App. No. 2006-CA-53,2007-Ohio-2005 at ¶ 27. Upon due consideration, we find that appellant has not shown that the state acted in bad faith.”

Practice Pointer: When you try to use this defense, make sure you demonstrate that there is a reasonable probability that, had the evidence been preserved the result of the proceeding would have been different.