                             SECOND DIVISION
                               MILLER, P. J.,
                          ANDREWS and BROWN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                      May 24, 2018




In the Court of Appeals of Georgia
 A18A0750. THE STATE v. CAIN.

      ANDREWS, Judge.

      The State appeals pursuant to OCGA § 5-7-1 (a) (1) from the trial court’s pre-

trial order dismissing an accusation charging Daniel Clayton Cain with driving an

automobile under the influence of alcohol: (1) with a blood alcohol concentration of

0.08 or more in violation of OCGA § 40-6-391 (a) (5) (count one), and (2) to the

extent that it was less safe for him to drive in violation of OCGA § 40-6-391 (a) (1)

(count two). The court granted Cain’s motion to dismiss the accusation based on its

finding that the State violated Cain’s due process rights under the United States and

Georgia Constitutions when it acted in bad faith by intentionally failing to preserve

evidence within its possession and control which the court found was relevant and

material to the issue of whether Cain was driving under the influence of alcohol in
violation of OCGA § 40-6-391 (a) (5). The evidence which the state failed to preserve

was a video taken by a camera mounted in the arresting officer’s patrol vehicle which

showed the field sobriety tests the officer gave to Cain, the officer’s arrest of Cain,

and the officer’s reading of Cain’s implied consent rights. For the following reasons,

we reverse.

      A Glynn County police officer who observed Cain weaving out of his lane of

traffic and almost hitting a tree adjacent to the road stopped Cain to conduct an

investigation. When the officer observed that Cain’s speech was slurred and that an

odor of alcohol was on his breath, he contacted a DUI task force officer who

responded to the stop. The task force officer also observed that Cain had slurred

speech and the odor of alcohol coming from his breath and conducted field sobriety

testing on Cain. The officer testified that every field sobriety test he conducted

showed that Cain demonstrated signs of alcohol intoxication. As a result, the officer

placed Cain under arrest for driving under the influence and read him his implied

consent rights. Cain consented to a state-administered chemical test of his breath

which produced test results showing that his blood alcohol concentration was 0.175.

      The arresting officer testified that the field sobriety testing, the arrest, and the

reading of implied consent rights were all captured on video taken by a camera

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mounted inside his police patrol vehicle. According to the officer, he normally would

have downloaded the video from the camera to a server located at the Glynn County

Police Department, and then downloaded the video from the server to a compact disc

to be placed in the case file and preserved as evidence. This was not done in the

present case, however, because a malfunction in the system prevented the officer from

downloading the video from the camera to the server. The officer became aware of

the malfunction about two days after the arrest and attempted to preserve the video

by having it downloaded directly from the camera, but the system malfunction

prevented the video from being pulled directly from the camera. Although the officer

was aware that the camera would only preserve the video for about sixty days, no

further attempt was made to obtain the video from the camera and eventually the

video was lost.

      “[T]here is no [federal or state] constitutional due process requirement that

police maintain all material that might be of conceivable evidentiary significance.”

State v. Mussman, 289 Ga. 586, 589 (713 SE2d 822) (2011) (citation and punctuation

omitted); Arizona v. Youngblood, 488 U. S. 51, 58 (109 SCt 333, 102 LE2d 281)

(1988).



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      To determine if a defendant’s due process rights have been violated
      where, as here, the lost evidence could have been exculpatory, but where
      it is not known that the evidence would have been exculpatory, this
      Court considers whether the evidence was constitutionally material and
      whether the police acted in bad faith. Evidence is constitutionally
      material when its exculpatory value is apparent before it was lost or
      destroyed and is of such a nature that a defendant would be unable to
      obtain other comparable evidence by other reasonably available means.

Mussman, 289 Ga. at 590 (citation and punctuation omitted; emphasis in original).

Under this standard, evidence is not constitutionally material because it may be

“potentially useful” to the defendant’s defense – “[t]he key is the ‘apparent

exculpatory value’ of the evidence prior to its destruction or loss and ‘apparent’ in

this context has been defined as readily seen; visible; readily understood or perceived;

evident; obvious.” Johnson v. State, 289 Ga. 106, 109 (709 SE2d 768) (2011)

(citation and punctuation omitted); State v. Mizell, 288 Ga. 474, 476 (705 SE2d 154)

(2011). Moreover, bad faith by the police in this context is limited to “those cases in

which the police themselves by their conduct indicate that the evidence could form

a basis for exonerating the defendant.” Youngblood, 488 U. S. at 58; Mussman, 289

Ga. at 591 (to establish bad faith, police conduct must show “some intent to

wrongfully withhold constitutionally material evidence from the defendant.”).




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      Applying the above standards, we find no evidence which could support the

conclusion that the lost video contained constitutionally material evidence or that the

police lost the evidence in bad faith. There is no evidence to support Cain’s

speculation that the lost video may have contained exculpatory evidence. In fact, all

the evidence showed that, when the video was lost, the police had every reason to

believe it contained evidence inculpatory of Cain. Neither Cain’s speculation that the

lost video could have been useful to his defense – nor the trial court’s finding that the

lost video contained “relevant” and “material” evidence – supported dismissal of the

accusation. Because there was no evidence that Cain’s due process rights were

violated, the trial court’s order dismissing the accusation is reversed.

      Judgment reversed. Miller, P. J., and Brown, J. concur.




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