Here’s an update on the 1300 DUI videos that were destroyed.  At first Metro Nashville Police blamed ICOP Digital stating the software had a flawed update.  Brian Haas of The Tennessean reported today on the company’s response.  Here is a copy of the letter that was sent to Metro Police Chief Steve Anderson.  You can read the whole letter but here is the gist of ICOP ‘s position.





The loss of any files was not the result of ICOP’s action, but the result of your personnel and/or operating procedures.

ICOP blames Metro Nashville Police in it’s open letter to Chief Anderson. While Metro Nashville Police blame ICOP. Here’s Nashville police department’s news release on the subject. It looks like a lawsuit waiting to happen.

What does this mean if you have a drunk driving case (DUI) pending in Nashville,Tennessee?  First, the police have a duty to preserve exculpatory evidence in all criminal cases. The question then becomes whether the destruction was negligent or intentional.  In Arizona v Youngblood, The United States Supreme Court held that the government’s failure to preserve evidence only violates due process if the the defendant can show the government acted in bad faith.  Tennessee has embraced this principle in State v. Ferguson which held in part….

 If the proof demonstrates the existence of a duty to preserve and further shows that the State has failed in that duty, the analysis moves to a consideration of several factors which should guide the decision regarding the consequences of the breach.   Those factors include:

1.  The degree of negligence involved;

2. The significance of the destroyed evidence, considered in light of the probative value and reliability of secondary or substitute evidence that remains available;  and

3.  The sufficiency of the other evidence used at trial to support the conviction

So, while the loss of the DUI videos does not automatically mean a dismissal, it does give you some great leverage in handling your case.