An edited video from a police officer’s body camera leading jurors to conclude a drunk-driving suspect failed a preliminary breath test should not have been allowed into evidence, the Iowa Supreme Court said in a ruling handed down Nov. 17.

By statute, results from a preliminary breath test may not be introduced at trial, but the State in the prosecution of Bita Amisi for driving while intoxicated was allowed to introduce a video from the arresting officer’s body camera that was edited in a way that jumped from Amisi agreeing to a preliminary breath test to his arrest.

That, the Iowa Supreme Court said in a decision written by Justice Edward Mansfield, should not have been allowed by the trial judge because it in effect told the jury Amisi failed the preliminary breath test. Nonetheless, the Supreme Court concluded the error was harmless because there was sufficient evidence presented to support Amisi’s OWI conviction by a reasonable jury.

Justices Thomas Waterman, Matthew McDermott, and Dana Oxley joined Mansfield’s opinion in full. Justice Christopher McDonald filed a separate opinion joined by Chief Justice Susan Christensen and Justice David May concurring with the decision affirming Amisi’s conviction but saying they would not have reached the edited-video question.

Officers investigating a possible drunk-driving arrest may take a preliminary breath test (PBT) to determine whether to bring an OWI charge, but because the results may be unreliable the Iowa Legislature in Iowa Code section 321J.5(2) barred prosecutors’ use of PBT results at trial.

Amisi’s attorney unsuccessfully objected to introduction of the edited body camera video because it in effect told the jurors Amisi failed the breath test. The Supreme Court agreed the video evidence should have been excluded.

The Court cited a recent North Dakota Supreme Court ruling that reached a similar conclusion in a case in which a prosecutor’s testimony that a suspect was arrested for drunk driving after taking a preliminary breath test “almost certainly left the jury with the conclusion” the defendant had failed the preliminary breath test. The Montana Supreme Court the same result in a case similar to Amisi’s in which a video was edited to show a defendant’s arrest followed closely after showing him taking a preliminary breath test.

“We agree generally with the path followed by the North Dakota and Montana Supreme Courts,” Mansfield wrote. “Admission of Amisi’s consent to take the PBT followed by his arrest did not technically violate Iowa Code section 321J.5(2). The results of the test did not come into evidence. But [Iowa rule of evidence] 5.403 prohibits the use of evidence where ‘its probative value is substantially outweighed by a danger of . . . unfair prejudice.’ Here, the evidence was only minimally relevant while being unfairly prejudicial.”

In his concurring opinion, Justice McDonald said while he agreed with there was sufficient evidence to support Amisi’s conviction, he would have stopped there.

“I would not reach the issue of whether the district court abused its considerable discretion in admitting the edited video,” McDonald wrote. “Amisi objected to the admission of the edited video showing his consent to the preliminary breath test (PBT) and his arrest, but he did not object to Officer [James] Chadwick’s testimony regarding the same events. Officer Chadwick’s testimony provided substantially the same evidence as that shown in the video. Iowa’s courts have repeatedly held that ‘prejudice will not be found where substantially the same evidence is in the record without objection.’”



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