What Happens If Evidence Is Lost or Destroyed in Your Raleigh DWI?

A DWI in North Carolina is not just an open and shut case.

Even if the facts in your case appear bad at face value, that doesn’t mean it’s not a winnable case. Why? Because in a North Carolina criminal case, specifically in a Raleigh DWI, you have certain rights that cannot be violated by law enforcement and must be protected by the courts.

Case in point: the Absher Motion. The Absher Motion is based on a 2009 case called North Carolina V. Paul Absher. Absher successfully argued in his DWI that he had a right to all meaningful evidence in his case, and if that evidence was not turned over by law enforcement or the prosecution, that his ability to defend himself would be damaged. So what does that mean? This argument most commonly applies to video evidence in a DWI. More and more law enforcement vehicles are equipped with video cameras that have audio capabilities. This is to protect both the officer as well as a defendant. If video from a DWI stop is lost, destroyed, or damaged and that video potentially contains evidence that would support someone’s defense, filing an Absher Motion might result in a case being dismissed because key evidence cannot be provided to the defense. The cause behind the loss or destruction of evidence can be innocent, unintentional, or malicious – it doesn’t matter. You as a criminal defendant have the right to use all relevant and meaningful evidence to defend yourself in court.

Just because you file an Absher Motion doesn’t mean it will automatically by granted with no argument poof, away goes your DWI. Law enforcement and the prosecutor will likely challenge the motion by saying that the video didn’t have any meaningful evidence that would support the defense. For example, if an officer claims that a suspect vehicle was weaving within the lane of traffic and that provided reasonable suspicion to stop the car for DWI, then the argument could be that there was little or no weaving, certainly not to the extent to be suspicious of a DWI. The officer’s notes would show the notation of weaving and the officer would want to use the video to confirm the observation. A defendant would want to use the video to demonstrate that there was either no weaving or no substantial weaving. An Absher Motion on this example has a lower chance of being granted. However, if there was a witness riding in the car or driving behind the car that was able to testify that there was no weaving and that the video would confirm and corroborate the witness’ testimony, then an Absher Motion is likely to be granted, dismissing the case.

What can you do to protect your rights in a Raleigh DWI?

It is always a good idea as soon as you are able to write down a full account of what happened during the entire DWI stop so that you have a fresh narrative of what happened. If you had witnesses, ask them to do the same and make sure you have their contact information handy. Get a Raleigh DWI lawyer as quickly as possible so that the attorney can request video and any other relevant evidence as quickly as possible before it can be lost or destroyed.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.