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Illinois State Police: What Is Their Obligation With Video And Audio Recording For DUI and Traffic Stops?

The Illinois State Police, by statute, are required to video and audio record a vast array of different types of encounters with civilians while on the job. By June 1, 2011, all Illinois State Police cars were required to contain video and audio recording equipment for the purposes of recording most encounters that a trooper might come across. 20 ILCS 2610/30(b). State Troopers carry wireless microphones on them at all times to audio record such encounters. Id. Speaking specifically about traffic offenses and DUI cases, the statute provides that “Any enforcement stop resulting from a suspected violation of the Illinois Vehicle Code shall be video and audio recorded. 20 ILCS 2610/30(e). Recording equipment must be able to last up to 10 hours. 20 ILCS 2610/30(b).

The plain language of the statute seems clear. Whenever a vehicle is stopped for a suspected traffic violation, the entire encounter must be video and audio recorded.

To further clarify exactly when recording equipment must be activated, the statute says State Police shall: record activities outside a patrol vehicle whenever (i) an officer assigned a patrol vehicle is conducting an enforcement stop; (ii) patrol vehicle emergency lights are activated or would otherwise be activated if not for the need to conceal the presence of law enforcement; or (iii) an officer reasonably believes recording may assist with prosecution, enhance safety, or for any other lawful purpose.

20 ILCS 2610/30(c). A DUI stop falls squarely within the definition of an enforcement stop and the arresting officer will undoubtedly activate his patrol lights to notify the offending vehicle. One would seldom be able to think of a scenario in which an officer would not find it beneficial for him or her to have an audio and video recording of the traffic stop to assist in potential prosecution.

However, what happens in the situation where some kind of error occurs? What if an officer forgets to turn on his microphone? What if he fails to charge the microphone’s battery and it dies? What if the camera points away from the encounter between the officer and the stopped vehicle? All too often, an officer walks out off camera view to conduct field sobriety tests on a suspect. What happens with the evidence then? Should only the audio or only the video of an encounter be let in when such error occurs?

While not specifically dealing with Illinois State Police, the case of People v. Ceja does have some helpful insight. In Ceja, a local police officer initiated a traffic stop when he observed Ceja weave into traffic. People v. Ceja, 351 Ill.App.3d 299, 300 (3rd Dist. 2004). Once stopped, the officer called in another squad car equipped with video and audio recording equipment to capture the Defendant’s performance on standardized field sobriety tests. Id. While the officers did audio and video record the testing, dirty VCR heads resulted in the failure of the equipment to video record the encounter. Id. Accordingly, the Court refused to allow entry of only the audio of the encounter as violating the eavesdropping statute. 720 ILCS 5/14-2.

Under Illinois law, a person cannot be audio recorded unless they are first informed beforehand that the recording is taking place and give consent. 720 ILCS 5/14-2(a)(1). There are several exemptions to this statute. One exemption is the simultaneously made audio and video recordings made by law enforcement officers during enforcement stops. 720 ILCS 5/14-3(h). According to the Court in Ceja, there was a specific purpose for suppressing the audio recording evidence in Ceja’s case based on the intent of the legislature,”Because the legislature has decided that the video portion is central to the protective scheme embodied in section 14-3(h), admitting the videotape in question would frustrate the legislative purpose behind the exemption.” Ceja, 351 Ill.App.3d at 301-302.

Essentially, the Court in Ceja found the exemption in the eavesdropping statute to require actual retention of both the audio and the video in order to qualify as reliable evidence. Therefore, because the video evidence was destroyed, even though unintentionally, suppression of the audio was warranted.

Ceja appears to be authoritative law in the 3rd District of Illinois, but has been distinguished in a 6th District case. In People v. Babolscay, the Court concluded that Ceja stood for the suppression of the video or audio evidence alone, and did not extend to the fruit of the poisonous tree. People v. Babolscay, 368 Ill.App.3d 712 (2nd Dist. 2006). In Babolscay, the State conceded that the video of the defendant performing field sobriety tests was inadmissible. Id. at 713. Due to a technical failure, the quality of the video was too poor to make anything out. Id. However, the State argued, and the Court agreed, that the officer could still testify as to his observations of the Defendant during the traffic stop. Id.

In a previous post, we discussed the holding of People v. Kladis. In Kladis, while citing the easedropping statute, the Court noted the importance of retaining squad car evidence. “These enactments express the clear legislative intent that the purpose of recording traffic stops and preserving these recordings for later production is to assist in the truth-seeking process by providing objective evidence of what occurred between the law enforcement officer and the citizen.” People v. Kladis, 355 Ill.Dec. 933, 940 (S.Ct. 2011). Video evidence provides relevant, objective evidence that is beneficial to both the State and the defense. Id. at 941. In Kladis, the Court found the discovery violation of failing to provide requested video worthy of not only suppression of such video, but suppression of the officer’s testimony regarding the events that occurred on that video. Id. at 942. The Court found the discovery sanction narrow tailored as it did not preclude the officer from testifying as to observations made prior to and after the recorded video. Id.

Babolscay predates the Illinois Supreme Court decision in Kladis. While not specifically overturning Babolscay, the reasoning in Kladis is strong and warrants reconsideration of the holding in Babolscay. So what if an officer walks off camera to have a suspect perform field sobriety tests? What if he points the camera in a different direction during testing? For all intents and purposes, failure to video record the encounter between a suspect and an officer, whether through mechanical error or otherwise, results in the same thing. Both instances fail to capture the material evidence that the Courts in Ceja and Kladis found to be so important and beneficial to both the State and the defense. Both occurrences result from the State’s failure to produce a portion of evidence that statute provides they shall record and preserve. Not only must the video and audio evidence be suppressed as in Ceja, but State Police should be precluded from testifying to the encounter as they were in Kladis. As the Court noted in Kladis, such result is narrowly tailored to remedy the mistake made by State Police for which they are required by statute to perform.

Effective Illinois DUI attorneys should always attempt to preclude an Illinois State Police officer from testifying to any important part of the encounter which should have been video and audio recorded. Statute provides all traffic enforcement stops shall be recorded. The “shall” language is too strong to ignore. Any video or audio not simultaneously captured during the encounter, whether intentional or not, and whether the failure is human error or equipment error, results in the failure of the State Police to preserve required evidence In addition, attorneys should attempt to preclude either audio or video when one or the other is either not recorded, or not preserved, or not provided. In order to be in a position to do any of that, it is necessary to serve a Supreme Court Rule 237 request upon the State. The request should be made promptly at the beginning of the lawyer’s representation of each client. We routinely file it with our appearance.