If your DUI stop was recorded, the defense is entitled to see it. The recording comes through the discovery process: your lawyer requests it from the prosecutor, whose duty extends to what the arresting agency holds. The video matters because it is the one account of the stop that does not depend on memory. This page explains how it is obtained, how it is used, and what happens when it is missing. It is part of our Montana DUI Guide.
How the Defense Obtains the Recording
Montana's discovery statute does not mention cameras, but its categories cover what a recording contains. Upon request, the prosecutor must make available for examination and reproduction material within the prosecutor's possession or control, including (MCA § 46-15-322(1)):
- all written or oral statements of the defendant;
- papers, documents, photographs, or tangible objects the prosecutor may use at trial;
- all material or information that tends to mitigate or negate the defendant's guilt or that would tend to reduce the potential sentence.
Two other parts of the statute matter in practice. The obligation "extends to material and information in the possession or control of members of the prosecutor's staff and of any other persons who have participated in the investigation or evaluation of the case" (MCA § 46-15-322(4)), so it is not an answer that the video is on the police department's server. And the duty continues: a party that discovers additional material must promptly disclose it (MCA § 46-15-327).
For the breath or blood test itself, a separate provision says that on request, full information concerning any test given at the direction of the officer must be made available to you or your attorney (MCA § 61-8-1019(3)). See discovery and evidence for the rest of what is exchanged.
What Recordings May Exist
Depending on the agency and its equipment, a DUI arrest can generate several recordings: a patrol car dash camera, a body-worn camera, audio from the officer's microphone, and cameras in the booking or breath testing room. The 911 call and dispatch audio are recorded separately.
Not every contact is recorded. In State v. Spaulding, 2011 MT 204, the deputy's camera and microphone came on automatically only when he activated all of his emergency lights, and on that welfare check he had activated only the rear lights. Recordings are also not kept forever, and how long depends on the agency. Both are reasons the request should go out early.
What We Look For on the Video
| Issue | What the recording can show |
|---|---|
| The reason for the stop | Whether the driving matches the report: the lane position, the signal, how long the officer followed. |
| What you said, and when | Whether a statement came before or after arrest, and whether warnings came before questioning in custody. |
| Field sobriety tests | The surface, the lighting, the instructions, the demonstration, and the scoring compared with the officer's training. |
| The implied consent advisory | Whether it was read, and whether what the officer recorded as a refusal was one. |
| The independent test | Whether you were told about it, whether you asked, and how the officer responded. |
Video has decided reported Montana cases in both directions. In State v. Lafferty, 1998 MT 247, the patrol car video recorded the pickup crossing the fog line, the trial judge reviewed it, and on appeal the Supreme Court held that driving did not justify the stop. In State v. Minkoff, 2002 MT 29, a station videotape captured an officer telling a driver that an independent blood test would come out higher than the breath test, and the charge was ordered dismissed.
The Video Is Evidence Against You Too
A recording is not a defense document. In State v. Thompson, 237 Mont. 384 (1989), the Montana Supreme Court held that an audio-video tape of a driver at the police station was objective evidence, not protected by the privilege against self-incrimination, and that asking him to perform sobriety tests on camera was not interrogation requiring Miranda warnings. Slurred speech, unsteady balance, and unguarded comments are all there for a jury to see.
That is one reason an honest review matters. Sometimes the video is the strongest part of the defense. Sometimes it is the reason to negotiate.
When a Camera Was Never Turned On
Montana law distinguishes between gathering evidence and preserving it. A defendant has a due process right to obtain exculpatory evidence, but police "are not required to take initiative or even assist the defendant with procuring evidence on his own behalf" (State v. Belgarde, 1998 MT 152). In Belgarde, a DUI case, officers did not activate the booking room camera. The Court held they had no duty to gather that evidence for him. It relied on an earlier DUI case in which officers recorded the booking but did not turn on the sound.
So a missing recording does not by that fact get a case dismissed. What it does is leave the State relying on the officer's account, which the defense can test on cross-examination.
When a Recording Was Erased or Lost
Once evidence exists, the analysis changes. The rule the Court applies:
- Deliberate or intentional suppression of exculpatory evidence is a per se violation of due process, and dismissal is warranted (State v. Schauf, 2009 MT 281).
- Negligent loss is a violation only if the defendant shows the evidence was material and of substantial use, vital to the defense, and exculpatory. The exculpatory value must have been apparent before the evidence was destroyed, and the defendant must be unable to obtain comparable evidence by other reasonably available means (Belgarde).
Belgarde shows how demanding that is. A sally port tape of the driver getting out of the patrol car and walking to booking had been erased. The Court agreed the State was negligent but found no violation: the driver had not shown the tape was exculpatory, and the officer was available to testify about the same events.
Separately from due process, the discovery statutes give a judge tools when a party fails to comply: ordering disclosure, granting a continuance, holding a person in contempt for an intentional violation, precluding a party from offering evidence, or declaring a mistrial (MCA § 46-15-329). Which, if any, applies is up to the court.
What You Can Do Now
- Write down where and when the stop happened, which agency made it, and where you were taken. That identifies which cameras to ask about.
- Note any private cameras nearby, such as a business or a home, and tell your lawyer quickly.
- Do not post about the arrest or contact witnesses about their accounts. See what not to do after a DUI arrest.
This page explains Montana law in general as of the 2025 Montana Code Annotated and the court decisions cited. It is not legal advice about your specific case.