video and barred all testimony regarding what occurred while that video was recording this was tantamount to dismissal of this case the facts that the trial court barred included the fact that defendant had a strong odor of alcohol on or no your honor i don't believe so and the reason being is because the reason that schmidt limited discovery to the five areas that it did was because it recognized first eliminate discrepancies but most importantly recognize that with misdemeanors there's such a high volume of misdemeanors while they're also the same time same time less serious than felonies and to add an additional burden to include a squad car videos but why stop there include any video that's got the defendant in it like a police station video a neighborhood camera video and videos from anywhere that is just going to slow down the process considerably so if it been such as to make a difference that the police officer mentioned video would know your honor that makes that makes no difference as far as to whether it's discoverable under schmidt it was just simply that officer acknowledging and putting everything in his report this is just another piece of evidence that video ta holding camp that's just one source of evidence it's the fact that it's in there doesn't mean that it's going necessarily be preserved as part of discovery automatically what about honor when the defendant came into court on a day thirty one and made norm motion for discovery and asked to include as part of that motion discovery and he sort of videos as well but the prosecutor agreed to do it and certainly we have no problem tend these videos in a particular case if the phone asked for it and it's available we will get it in fact the people also way especially in this case would like to have had the video given the detailed report by officer caskey that had a videotape would have more than likely been favorable to the people and certainly the fact that we agreed to tender it doesn't somehow make a part of discovery under schmidt is just a medically gelati something that we would also like to see and for that been preserved if this had been request and it hadn't been purged yet certainly we would have gone to the police department as we did we find out if it's available but here again your honour's while the people want the defense have a fair trial but this trial should also be fair to people too and here we shouldn't be running punished because the trial court here expanded discovery under schmidt and relied on the felony discovery rules to do so this this video does not fall with any within any of these categories under schmidt it's not a police report police report sunshine it were those containing the observations of the officer and statements by the defendant and it's a police report prepared by the witness by that officer we tendered everything in that regard to the defendant a squad car video is not prepared by the officer it doesn't contain the officer's observations it doesn't contain the defendant's statements it is automatically generated w your honor their friend and attached to her brief the procedures of the police department regarding the squad car videos and it's their policy to retain them for thirty days but if they're not requested within thirty days they're automatically purged and that's exactly what occurred here your honour's on day thirty one that morning no one requested it it was purged and this is again because to require these police stations especially these police departments and spurs and cook county like this one requiring them to be preserved every video whether the squad car videos or any time there's a video of the defendant in the station for instance to preserve those ad infinitum until the end of this process is just going to slow down the whole misdemeanor judicial process preservation but of going through making sure that that's preserved going through i mean going through the whole process of getting that videotape again in individual cases it may not be an issue for instance here we will find a tendering but you look at the fact there were three hundred twenty seven thousand plus new misdemeanors filed it we're talking about we're going to require the police departments to start with saving these videos for who knows how long they don't have infinite amount of computer space of these are digitizing if they're not shelf space for each one of these hundreds of thousands of videos it's just going it's going to burden the judicial system in the sense it's going to burden these other agencies the police officers any sort of other state agency and here  ars the concerns in schmidt again have been there are no less here today even the bast number of misdemeanors found compared to vs felonies but here on us again this also doesn't fall under any someone demonstrated exculpatory when the information is not available to view one or the other certainly around and that's that was was what was an issue and youngblood was that there no one knew what when you don't know what that exact evidence is going to show it's not something that's known to be expelled the toilets just merely been hidden by the state it's something that's been lost or destroyed and in that case that's why there has to be a showing of bad faith you've got to show that the state for instance would hadn't have know that this might be exculpatory there might be some reason to show bad faith on the part of the people on part of the prosecution of part of the police department and that's why there's that bad faith requirement when you don't know exactly what's going to be in it because that was filed under rule two thirty seven a simple rule it applies to civil cases was filed five days after she was arrested for the civil rescission hearing in this court is one of the people forces more filing a motion are notice to produce under a civil rule in a civil case has no bearing no close effect i'm a criminal case  oh it certainly exists the civil case your honor and in more of this court held that a decision made in the civil proceeding hearing has no clues of effect on the criminal dui case even though they're in a related so certainly if they correct your honor and the trial court sanction the people in the civil rescission hearing for not preserving that video pursuant to that notion of produce them that notice reduce what is the stink between it between the police report and why can't you the police report includes an after the fact summary summarization of the events of the officer observed after the fact the officer comes back to the station and  down and here seven hundred eighty five words everything that occurred not just during the time that video was recording but before and after but also things in that video cannot capture certainly obviously the camper cannot capture the strong odor of alcohol on that and its breath it's not going to capture her slurred speech there is no microphone activated in this case it's not going to see her blood shot and glassy eyes and so that video camera is a kid in to say another witness who was there it's just sitting from a fixed position on the squad car windshield as well that if need be it can be a way for the trial court if it's preserved to looking forward and see what that camera saw but again you honour's it's there simply as just an additional documentation of what happened but the fact that it hasn't been tendered doesn't mean that then all evidence regarding what occurred that night has to be barred problem is that this would be unduly burdensome to have to you know keep these forever and produce them in all the cases right he's instead you can change them hasn't the legislature recognized the importance of videotapes by now requiring l agencies to keep the beauty for ninety days unless the recordings are made part of an arrest or the recording are deemed evidence in any criminal civil or administrative seating and then the right recordings must only be destroyed after  statute and i'm not sure if it's going to apply to misdemeanor cases your honors and and that's really the important point here is whether it applies to misdemeanors but of course at the time of this case that wasn't in effect that's true but in the sense of the legislature appears at least from my reading of the statute to place a great deal of emphasis on videotapes and the storage of videotapes especially those that are made as part of that arrest and certainly your honor in felony cases with the greater deprivation of liberty correct your honor if there was no video if there had been no squad car video before the any of that existed right it would just been the officer on the scene with all rescued able to get the can you still say yes your honor and that's the problem here is that if the telling he was limited to testifying everything you observed before he turned on the lights and after he turned him off when she was arrested in the police car so that part of any testimony about the load of alcohol slurred speech classy eyes failure to perform on these field sobriety tests all of that was that was barred by the trial court mr noway let me back up again you have made the argument the distinction between the civil and criminal civil being the statutory summary suspension in my correct yes and maybe this is shown in the record i'm not familiar to know this but in cook county is the petition to recent where the notice to reduce produce was filed is that docketed in the same jacket file in the criminal side i'm not certain your honor i do not believe so your honor these are separate proceedings it is the same prosecutor who is involved with both but you don't know if it's actually docketed and held in the same rate it was just here focused under the dui charge in particular drivers well and without knowing for sure but if it were all filed in the same jacket same prosecutor with a notice produced that's not enough notice to say hey we want th proper in the true trial court we for the civil case we don't dispute that we're not arguing that on appeal it's just that in the separate criminal case certainly yes these are related cases but as this court held in more the differences are very real that but that was not the same as a motion in the criminal case one cannot and does not believe over in the criminal so there's got to be a separate motion and that motion came on day thirty one and that's aside from the fact that distinction was far too harsh and barred everything about this case it brought everything that the officer saw that established that she was driving under the influence of alcohol beyond a reasonable doubt the courts have held that if if this court had  to the defendant but even there that perhaps even goes too far and this was not something that was done in bad faith this was not this was it it most negligent by the fact that this wasn't preserved but again defended you come in until day thirty one asked for this in the criminal side and so there should be no harsher sanction than simply having an inference in favor the defendant but again even that would have been too far given the fact that there was simply no bad faith there in conclusion your hono krueger i find it somewhat disingenuous in the state's argument that for sake of quid you ality don't provide the tape to the defendant but they will do it under smit they're going to give the state the defendant something they believe they got required to give to be friendly that doesn't make any sense i just i was just cracked it schmidt  decided now a videotape would be included in schmitt discovery that would be a policy and i think the court would conclude that a videotape that technology is available to videotape would now be available to the as stated before are civil and criminal different things but they're connected at the hip what happens when one isn't controlling and the other hundred more but in many ways it sets the stage what's going to happen now a the officers police report which also would include a video of the state could proceed on the s s hearing without the officer using all of these this information now to say we're not going to try to reconstruct the street discovery i think might have shown something that was helpful to the defendant seeming might have been potentially useful evidence the drugs that were destroying fish or might get back in fisher remember there was four different lab tests dying showing that the n test and it was argued that that point that the only way you can determine if the officer did the h u n test properly was to be able to view the video of the officer doing the h t m test and the argument there was officers didn't ninety days at the time of this case don't know if they kept the policy to make the video there's also the policy destroyed it for thirty days now when the state its attorney's office got the two thirty seven notices just as burke was asking why wasn't that sufficient notice save this tape we're telling you to do this now not wait for the day thirty one which happened to be the first court date at that time agreed to give it tape i mean but we find out later it was destroyed at four am that day pursuant to the north like policy which again takes a turn or should have known about it to the negating of guilt understand it and brady doesn't brady require that there'd be knowledge on the pern of the state that the tape would be exculpatory instance the first three justices in saying that you don't need to show good faith every time in this particular case i'll go along with the other three but i'm not going to say that bad faith needs to be if there's a exclusion of bad faith is required in every case and and then put the state on notice to preserve the videotape in the criminal case but you don't dispute that there was the motion regarding the videotape in the criminal case occurred after the destruction that's correct at two thirty seven notice put them out and told them to keep the videotape on this case which was filed five days later the oil discovery first for discovery was made on the first court date which was day thirty one but no obligation the obligation runs to the state in the separate and related civil case to vend take action in the criminal case but no obligation on the part of the defendant to file something in the criminal case prior to the destruction in the stairs but i don't think that if it was obligated to file the two other probably what the state is arguing was when judge wise the trial court ruled sanction and the civil case and then said i want to apply that same sanction a motion to quash in a criminal case i think the state effectively waived any and then should be the buying of the officers testimony because of the video is not an invitation for petitioners and defendants to commit perjury the state is telling you that this is a that's correct right and i think it's a poor member of the duis are treated very seriously by the legislature and public policy here is to keep our roads safe and to punish the guilty but to be sure the innocent are not punished a video of the incident is worth more than a thousand words a photograph of a victim in a domestic violence case is going to be kept by the state as evidence later the photograph itself isn't evidence it's what the victim looked like when the officer got there their neck and for the state and the police are not going to destroy a photograph of the victim in such a matter where they destroy the photograph of criminal  police or there's an arrest the police report the tickets are sent to the clerk police reports are sent to the state's attorney's office to be usually given out discovery on the first court take the police report says a video was made to be between is evidence the state should then call up and say i want to see this observations of defendants apparent intoxication wealthy a tape was recording constituted the people's entire proof of intoxication given the state his deposition just spoke i agree you think they would really want t said with the tape this would have been an easy case well then be sure you save the tapes and you should have saved the tape here you were told about it and mr the defense counsel met during the two thirty seven notice until after the tape was purged that to be a different argument submit to as part of the summer suspension hearing is the same blood alcohol test that's going to be used in the prosecution of the dui finally i don't believe that sanctions here was so harsh as i said the state could have proceeded on the motion to quash by asking and so he felt that the proper sanction to advise the state's attorney's office what they needed to do when they have notice save the tape is to impose a sanction the sanctions are always discretionary with the court even if you take the negative a video switch under smit because it the gates guilt that's also is part of a police report that could be used in the summary suspension as part of the officers official reports so either way the video is discover the officers report well that's certainly it there's the odds they're in odds you look at that police report and there's nothing similar to what the defendant testified to at the civil rescission there she doesn't talk about how she had slurred speech and over alcohol in a breath she doesn't talk which means and it says specifically that those recordings they can be preserved recordings made simultaneously with the use of an in car camera of an immoral conversation between the officer and the other person in oral conversation because this is an exception to the eas the trial the prosecutor was finally on notice for p r and didn't believe that there was any and he jurisdiction but that point has been mooted at this point at this stage by the supplemental record filed by the defendant before this court we know exactly what is absolutely not your honor more hits this issue precisely and when it talks about how there's no precludes effect from one to be other it hadn't didn't have to do with discovery had to do with whether a decision  made the civil rescission hearing would then have the close of effect on the criminal side but certainly it follows that if that's true a notice to produce on the civil side doesn't have any sort of reclusive effect on the criminal side defendant here even acknowledged here and while argument that she could  persian thirty days and if you really want that video you need to get down to take it down and get a subpoena issued within those thirty days and as far as to why the prosecutor here didn't walk towards the video and why why doesn't the prosecutor do that again that goes right into the fact that there are just so many misdemeanors there are so many do you want cases that these trials is that we don't they don't have time to sit down and review videos and every single case and preserve evidence whereas with these in squad car videos those are running every time the squad car lights come on it's not necessarily a criminal charge is not necessarily going to flow from every time that video is recorded a no because they have this policy and that's again this is just part of the sheer volume of these videos because they are created every time those lights are flipped on that the fourth lake has a policy much like other communities to push these after thirty days and again as defendant acknowledges she could have come in and get a subpoena she really thought this was important but here your honour's this is not material exculpatory because nobody knows what it  and that is the standard under brady can't stand up here and speculate about what could be you know what is shown what it agreed with the defendant's version with agree with the officers version no one saw this video as a result it cannot qualify as evidence under brady for