There are a variety of ways to defend against a DWI charge in North Carolina. Don’t let anyone tell you that the number you blow on the police machine at the station is the end of the issue. You can attack/challenge the stop of your vehicle, the arrest, the post arrest procedure, and even the steps that the magistrate took in deciding whether or not you should be released on a secured bond.
An Absher Motion references the 2009 case of North Carolina V. Paul Absher. Mr. Absher contended that his case should be dismissed because a video that was in the custody of the State had been destroyed and his case had been hurt as a result of that destruction. As such, an ‘Absher Motion’ is the phrase used when attempting to get a DWI dismissed because the government and/or law enforcement has destroyed or lost evidence that would have been exculpatory in your case. To use laymen’s terms, if they lost something that would’ve minimized your guilt, or helped you effectively cross-examine a witnesses against you, you can move for a dismissal under an Absher Motion.
In the Absher case the court pointed our the following important rules of law:
General Statute section 15A-954(a)(4) governs a criminal defendant’s motion to dismiss if he alleges that his“constitutional rights have been flagrantly violated and there is such irreparable prejudice to the defendant’s preparation of his case that there is no remedy but to dismiss the prosecution.” N.C. Gen. Stat. § 15A-954(a)(4) (2009). If, on the defendant’s motion, a trial court makes a determination that such a violation has occurred, it must dismiss the charges against the defendant.
The government has a duty to volunteer exculpatory evidence even when it is not specifically requested “when suppression of the evidence would be ‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’”
When a defendant makes numerous requests for “specific items of evidence that were favorable to him and material to his defense, but the State failed to provide the evidence, destroyed it, and then stated it could not be produced,” a flagrant violation of the defendant’s constitutional rights has occurred.
Irreparable prejudice occurs when a defendant is “denied material evidence favorable to his defense.” …“As the party moving for dismissal, defendant has the burden of showing irreparable prejudice to the preparation of his case.” A defendant can meet this burden by demonstrating that the situation cannot be remedied “by ordering or permitting [the] defendant to re-create an item of evidence he did not originally create and for which he does not possess the raw materials.” Here, it is undisputed that defendant Absher never had access to the original video; it cannot be recreated by the State, much less by him. Moreover, the trial court’s findings support its conclusion that the missing video segments were material and were favorable to his defense.
These rules of law apply to DWI cases when the State has lost or destroyed DVD record of your arrest. Sometimes the footage of your arrest is mislabeled or doesn’t download properly to the servers at the police station. Other times, no one knows why the police can’t find the footage of the arrest. Perhaps it was taped over or was deleted by accident. The reason doesn’t have to be something sinister or subversive to win this motion.
North Carolina law and the United States Constitution holds that “Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Exculpatory evidence is not limited to evidence of guilt or innocence but instead “can be either impeachment evidence or exculpatory evidence.”
“Evidence is considered ‘material’ if there is a ‘reasonable probability’ of a different result had the evidence been disclosed.” Materiality does not require a “demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal.” , defendant must show that the government’s suppression of evidence would “ ‘undermine[ ] confidence in the outcome of the trial.’
Additionally, pursuant to Arizona v. Youngblood, when law enforcement, acting in bad faith destroys or fails to preserve evidence which is potentially exculpatory, a violation of due process under the 14th Amendment to the United States Constitution occurs. The test for whether law enforcement acted in bad faith, “turns on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed”
The challenge of an Absher Motion arises when a DVD has been lost but there is no way of demonstrating to the Court that the evidence on the tape would have been exculpatory. In other words, the Officer is going to testify that the tape would have shown exactly what his written report shows. (Essentially that the defendant is guilty of everything he’s been accused of…) There are two effective ways to combat this. One is to write down exactly what occurred the morning after your arrest and then date your narrative. Emailing it to yourself would be an effective way to do this. Another is to have a third party witness to the events contradict the officer’s version of the events. That way, the defense can assert that the tape would have pointed towards the defendant’s innocence based on the testimony of the third party witness. (You won’t win an Absher Motion if you’re only hoping that the DVD of the arrest would have been helpful.)
It doesn’t matter what your blood alcohol content was on the night of your driving and arrest. If evidence has been destroyed that would have impacted the trial in a positive way, then your attorney should argue for dismissal under Absher. Don’t let an attorney tell you during a consultation that it looks like you’ll probably need to plead guilty if you blew above the legal limit. There are always alternatives to catering to the government’s desires.
