This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



John Clayton Weiby,


Filed June 1, 1999


Klaphake, Judge

Hennepin County District Court

File No. 98-004636

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; and

Michael J. Colich, St. Louis Park City Attorney, Darren C. Borg, Assistant City Attorney, 420 Lumber Exchange Bldg., 10 S. Fifth St., Minneapolis, MN 55402 (for respondent)

Peter J. Timmons, Metro Office Park, 2850 Metro Drive, #321, Bloomington, MN 55425 (for appellant)

Considered and decided by Klaphake, Presiding Judge, Crippen, Judge, and Willis, Judge.



John Clayton Weiby appeals from his misdemeanor conviction for driving while under the influence of alcohol, Minn. Stat. § 169.121, subd. 1(a) (Supp. 1997). He challenges the district court's denial of his motion to dismiss, which was based on the state's destruction of allegedly exculpatory evidence, a 24-hour security videotape that was recording activities near the booking room when Weiby entered the police station after his arrest. Because the state's destruction of the videotape was not intentional, the other evidence of Weiby's guilt was strong, and the exculpatory value of the videotape was uncertain, we affirm.


A defendant claiming that lost or destroyed evidence constitutes reversible error must show "that the destruction was intentional and that the exculpatory value of the evidence was apparent and material." State v. Friend, 493 N.W.2d 540, 545 (Minn. 1992) (citing California v. Trombetta, 467 U.S. 479, 488-89, 104 S. Ct. 2528, 2533-34 (1984)). To meet this element of materiality, evidence must

possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

Trombetta, 467 U.S. at 489, 104 S. Ct. at 2534. Minnesota courts also examine the strength of the state's case if the evidence had not been destroyed. State v. Harris, 407 N.W.2d 456, 460 (Minn. App. 1987), review denied (Minn. July 31, 1987). Consideration of these factors supports the district court's decision in this case.

First, unlike a videotape or an audiotape prepared when police interrogate a defendant or interview a witness, the 24-hour security videotape in this case was not intended or designed to record specific arrests or to provide evidence in any specific case. Cf. State v. Schmid, 487 N.W.2d 539, 542 (Minn. App. 1992) (police officer's destruction of tape of interview with victim for cost-saving reasons "not justified on a good-faith basis"), review denied (Minn. Sept. 15, 1992). Nor did Weiby make a timely request to preserve the videotape; rather, he waited until his first scheduled trial date, which was more than 90 days after his arrest. Thus, while the videotape was "intentionally" recycled and taped over after 90 days, pursuant to police department policy, the state did not act in bad faith by intentionally destroying evidence material to Weiby's case. See Friend, 493 N.W.2d at 545 (even if fingernail scrapings lost or destroyed, record fails to support that state acted in bad faith when pathologist examined fingernails and reported he did not find any foreign material underneath); State v. Renier, 373 N.W.2d 282, 287 (Minn. 1985) (state not intentionally hiding or destroying evidence or acting in bad faith when information obtained by officer initially did not appear relevant to solving crime).

Second, Weiby has failed to demonstrate that the videotape possessed an exculpatory value that was apparent before it was destroyed. State v. Nelson, 399 N.W.2d 629, 633 (Minn. App. 1987), review denied (Minn. Apr. 17, 1987). Because no one actually viewed the videotape before its destruction, the parties were only able to stipulate that the videotape "could" have captured Weiby's gait, physical features, and speech as he entered the police station; Weiby cannot assert that the tape clearly would have captured those images, nor can he assert that the tape would have assisted him in his defense rather than confirmed the officer's observations of him. Under these circumstances, the exculpatory value of the videotape is uncertain and speculative. Id. (exculpatory value of videotape of field sobriety tests uncertain when no one viewed tape prior to destruction).

Third, Weiby cannot establish that the videotape was of such a nature that he would be unable to obtain comparable evidence by other reasonably available means. Id. To the contrary, Weiby could have cross-examined the officer to test the officer's credibility. He also could have testified in his own defense or called as a defense witness the sober adult who picked him up at the police station after his arrest and booking. See Schmid, 487 N.W.2d at 542 (prejudice due to erasure of taped interview overcome in part by availability of two non-police witnesses, who were present during interview, to corroborate or controvert officer's summary of interview); Nelson, 399 N.W.2d at 633 (both arresting officer and defendant himself were available to testify as to results of field sobriety tests).

Finally, even if the videotape had not been destroyed, other evidence of Weiby's guilt was strong. That evidence includes Weiby's failing the preliminary breath test and his subsequent .16 Intoxilyzer test results, and the arresting officer's report and observations. See Nelson, 399 N.W.2d at 633 (despite destroyed videotape of field sobriety tests, DWI conviction upheld when evidence of impairment established by other facts, including .24 test result). Although Weiby criticizes the strength of the state's case due to the officer's failure to administer more than one field sobriety test, the officer's notes specifically state that he smelled alcohol on Weiby's breath, that Weiby's speech was slurred and his eyes were bloodshot and watery, and that he was off balance as he walked towards the officer's squad car. Thus, Weiby's impairment was amply established by other evidence.

We therefore affirm the district court's denial of Weiby's motion to dismiss and affirm his conviction.