State v. Rory David Revels

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 13, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP1185-CR Cir. Ct. No. 2020CT49

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

RORY DAVID REVELS,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Sauk County:
PATRICIA A. BARRETT, Judge. Reversed and cause remanded for further
proceedings.

¶1 FITZPATRICK, J.1 Rory Revels was charged in the Sauk County
Circuit Court with operating a motor vehicle while under the influence of an
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2019-20)
because the charges in this matter are misdemeanors. All references to the Wisconsin Statutes are
to the 2019-20 version unless otherwise noted.
No. 2021AP1185-CR

intoxicant, third offense, pursuant to WIS. STAT. § 346.63(1)(a), and with
operating a motor vehicle with a prohibited alcohol concentration, third offense,
pursuant to WIS. STAT. § 346.63(1)(b). Those charges were based on: Revels
exhibiting numerous signs of alcohol intoxication before his arrest; and the result
of a test of blood drawn from Revels shortly after his arrest which showed that he
had a blood alcohol concentration of .176 g/100 mL, more than twice the legal
limit. See WIS. STAT. § 340.01(46m)(a). At Revels’ request, and after an
evidentiary hearing, the circuit court dismissed both charges against Revels. The
State appeals2 and argues that the circuit court erred in dismissing the charges.
For the reasons discussed below, I agree with the State, reverse the order of the
circuit court, and remand this matter for further proceedings consistent with this
opinion.

BACKGROUND

¶2 The following facts are established by the testimony and exhibits
introduced into evidence at the evidentiary hearing (including the written reports
of two police officers).

¶3 On November 4, 2019, at about 12:30 in the morning, Officer Meyer
of the Baraboo Police Department was in his parked squad car just east of
Broadway Street in Baraboo. Meyer saw a black truck stopped in the road at the
intersection of 8th Avenue and Broadway Street. According to both his written
report and testimony, Meyer watched the black truck “stay stationary for a period
of 30-45 seconds without moving,” although the green traffic control light for the

2
The State’s appeal is taken pursuant to WIS. STAT. § 974.05(1)(a).

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No. 2021AP1185-CR

lane the truck was in signaled for the truck to proceed. He then drove his squad
car behind the truck and activated the squad car’s emergency lights. Before
stepping out of the squad car, Meyer told dispatch that he was checking on a
possible disabled vehicle because the truck was not moving.

¶4 Meyer next talked to the driver, who was identified by his driver’s
license as Rory Revels. Meyer asked Revels whether he was “okay,” and Revels
responded by stating “[y]es” and explained that he was going home to Hillsboro.
Meyer’s report contains further material information regarding his interaction with
Revels:

By this time, I smelled a strong odor of intoxicants
emitting from Rory’s vehicle. Rory also presented with
glassy, watery and bloodshot eyes. Rory also presented
with slurred speech, slowed response time to my questions
and slowed movements. From my training and experience,
I know these to be possible clues of alcohol intoxication.

… I asked Rory where he was coming from and he
stated he was coming from the Wisconsin Dells area. I
asked Rory to tell me how he got to Baraboo. Rory was
unable to explain to me how he got to Baraboo or where he
came from in terms of his location for consuming alcoholic
beverage[]s.

¶5 According to the report of Officer Smith of the Baraboo Police
Department, Smith was “called to assist” Meyer at approximately 12:30 a.m.
When Smith arrived, he was asked to take over this investigation because Meyer
was near the end of his shift and because Meyer was losing his voice. More
specifically, Meyer testified that he felt “fine” but was “struggling to speak.”
Meyer explained that an OWI investigation of Revels would require Meyer to ask
Revels to attempt to take certain actions during field sobriety testing, and Revels
would “need to understand me clearly … [and] I wouldn’t have been able to do
so.” Meyer made Smith aware of Meyer’s observations concerning Revels to this

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point, and Smith made contact with Revels while Revels was still seated in his
truck.

¶6 Smith’s report contains the following pertinent observations from
the time he arrived at the scene and the information told to him by Meyer:

When I arrived, I observed a black Ford pickup truck
running with a male in the driver seat smoking a cigarette.
Officer Meyer’s patrol vehicle was behind the Ford pickup
with its emergency lights activated. Officer Meyer
informed me that he had been stationary in the Community
Bank parking lot observing traffic when he observed the
subject’s vehicle stop at the red light at 8th Avenue and
South Broadway Street. Officer Meyer stated that once the
light turned green, the subject vehicle did not move.
Officer Meyer said he watched for about a minute and the
vehicle never moved, even though the light was green.
Officer Meyer left the bank parking lot and positioned his
fully marked patrol vehicle behind the subject vehicle and
then he activated his emergency lights. Officer Meyer
believed that the subject was having mechanical issues.
Officer Meyer told me that he made initial contact with the
driver, who identified himself with a Wisconsin driver’s
license as Rory Revels. Officer Meyer told me that Rory
told him he had consumed three beers. Officer Meyer told
me that Rory had bloodshot, watery, and glassy eyes, his
speech was slurred, and Officer Meyer smelled a strong
odor of an intoxicating beverage emitting from the vehicle.
Officer Meyer was about to go off shift due to an illness
and I assumed the case at this point.

¶7 Smith’s report describes his initial interaction with Revels:

I made contact with Rory while he was in his
vehicle still sitting at the traffic light. When I approached
the vehicle I smelled a strong odor of an intoxicating
beverage emitting from the vehicle. I shined my flashlight
and could I see that Rory presented with glassy/watery and
bloodshot eyes. From my training and experience as a law
enforcement officer, I am aware these can be signs of
impairment caused by alcohol. I asked Rory if he had been
drinking, and he replied that he had five beers. I asked
Rory if he felt like he was okay to drive, and he replied that
he was good to drive. I asked Rory if he would be willing
to do some field sobriety tests, and he replied “carry on”. I

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No. 2021AP1185-CR

asked Rory if that meant he would do the tests, and he
replied that he would do the tests. I had Rory exit his
vehicle and I directed him across the street to the covered
awning area of the bank. When Rory exited his vehicle I
asked him if he consented to a search of his person. Rory
told me to “carry on”, and I searched him, which did not
turn up anything of evidentiary value or law enforcement
concern.

¶8 Smith’s report describes in detail his field sobriety testing of Revels,
and I summarize that information now. On the Horizontal Gaze Nystagmus Test,
Smith observed six out of six possible clues for intoxication. Regarding the “walk
and turn” test, Smith observed that Revels exhibited six out of eight possible clues
of intoxication. For the “one leg stand” test, Smith observed three out of four
possible clues of intoxication. Revels was then given a preliminary breath test and
the reading was .163 BrAC.

¶9 When the field sobriety testing concluded, Smith arrested Revels.
After the arrest, Revels refused to consent to a blood draw. Smith transported
Revels to the Baraboo Police Department station, and a paramedic drew blood
from Revels after a search warrant was granted. The blood sample was sent to the
Wisconsin State Laboratory of Hygiene and tested for the presence of ethanol.
The result of the blood testing was 0.172 g/100 mL.

¶10 The further actions of the officers and the videos of these just-
described events will be discussed in more detail later in this opinion. For now, a
few material points are touched upon. The Meyer squad car camera video and the
Meyer body-worn camera video of this incident were uploaded to the Baraboo
Police Department server when Meyer returned to the station. Meyer did not
preserve his squad car and body-worn camera videos of this incident to permanent
media after returning to the station as his shift ended. Rather, Meyer expected
Smith to complete that task. The Chief of the Baraboo Police Department, Mark

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No. 2021AP1185-CR

Schauf, testified that Meyer’s expectation about Smith preserving the two Meyer
videos to permanent media was consistent with the Baraboo Police Department’s
“practice … generally” that the “lead officer for the case will download all [videos
of each officer involved in the investigation] onto one storage device.”

¶11 Smith attempted to download the two Meyer videos consistent with
Meyer’s expectation and the general practice described by Chief Schauf. Smith
testified that, while in the patrol room at the station at the end of his shift, he
believed that he saved the videos from Meyer’s squad car and Meyer’s body-worn
camera, as well as his own body-worn camera video, related to Revels to a
permanent storage device. Smith testified from his “independent recollection” on
this subject. Smith stated that he reviewed each video when he saved those onto
the desktop of his computer in the patrol room. But, instead of preserving each of
those three videos, Smith accidentally saved three copies of his body-worn camera
video to the permanent storage media. Chief Schauf explained at the hearing that,
at some point more than 120 days after videos are uploaded to the Baraboo Police
Department server, the videos are automatically overwritten through the standard
operation of the server, and that is what happened to the two Meyer videos. Smith
testified that he made a “mistake” causing Meyer’s squad car camera and body-
worn camera videos not to be preserved.

¶12 Revels was charged with operating a motor vehicle under the
influence of an intoxicant, third offense, and operating a motor vehicle with a
prohibited alcohol concentration, third offense. Revels filed a motion in the circuit
court requesting that the charges be dismissed because Meyer’s squad car camera
and body-worn camera videos were not preserved by the Baraboo Police
Department. The circuit court granted Revels’ motion and dismissed both
charges. The State appeals.

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No. 2021AP1185-CR

¶13 Other material facts will be mentioned in the following discussion.

DISCUSSION

¶14 Revels argues that his due process rights were violated because the
videos were not preserved.3 I next summarize the standard of review and general
principles regarding preservation of evidence in this context.

A. Standard of Review.

¶15 Whether action by the State constitutes a violation of due process is
a question of law that is decided on appeal independent of the determination of the
circuit court. State v. Luedtke, 2015 WI 42, ¶37, 362 Wis. 2d 1, 863 N.W.2d 592.
A circuit court’s findings of historical fact will be upheld unless those findings are
clearly erroneous. Id. A circuit court’s findings of fact are clearly erroneous
when those findings “are unsupported by the record.” Royster-Clark, Inc. v.
Olsen’s Mill, Inc., 2006 WI 46, ¶11, 290 Wis. 2d 264, 714 N.W.2d 530. Whether
facts satisfy a particular legal standard is a question of law. Langlade Cnty. v.
D.J.W., 2020 WI 41, ¶47, 391 Wis. 2d 231, 942 N.W.2d 277.

B. General Principles.

¶16 In order to prevail on his argument, Revels must prove that the
evidence that was not preserved was either “potentially exculpatory” or
“apparently exculpatory.” Luedtke, 362 Wis. 2d 1, ¶39. Revels must further show
that the State “(1) failed to preserve evidence that was apparently exculpatory or

3
Revels made a request for the videos discussed in this opinion, but Revels does not
argue that the State’s actions violated his statutory right to discovery pursuant to WIS. STAT.
§ 971.23.

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No. 2021AP1185-CR

(2) acted in bad faith by failing to preserve evidence that was potentially
exculpatory.” Id. (citing State v. Greenwold, 189 Wis. 2d 59, 67, 525 N.W.2d 294
(Ct. App. 1994)); Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988).4 “Absent
bad faith, destruction of evidence that merely has potential exculpatory value does
not violate due process.” Luedtke, 362 Wis. 2d 1, ¶57 (citing Greenwold, 189
Wis. 2d at 67); Youngblood, 488 U.S. at 58.

¶17 In this context, acting in “bad faith” means that the officers “acted
with official animus or made a conscious effort to suppress exculpatory evidence.”
Luedtke, 362 Wis. 2d 1, ¶55 (quoting Greenwold, 189 Wis. 2d at 69). As part of
the bad faith analysis, Revels must also prove that the officers had knowledge of
the potentially exculpatory nature of the evidence before it was destroyed.
Youngblood, 488 U.S. at 56 n.*; Greenwold, 189 Wis. 2d at 69.

¶18 In order to establish that the State violated his due process rights by
destroying apparently exculpatory evidence, Revels must further demonstrate that
the lost evidence is “of such a nature that the defendant [is] unable to obtain
comparable evidence by other reasonably available means.” State v. Munford,

4
In Arizona v. Youngblood, 488 U.S. 51 (1988), which our supreme court states
“controls” in these circumstances, State v. Luedtke, 2015 WI 42, ¶39, 362 Wis. 2d 1, 863 N.W.2d
592, the U.S. Supreme Court held that these standards “stem[] from our unwillingness to read the
‘fundamental fairness’ requirement of the Due Process Clause … as imposing on the police an
undifferentiated and absolute duty to retain and to preserve all material that might be of
conceivable and evidentiary significance in a particular prosecution.” Youngblood, 488 U.S. at
57-58.

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No. 2021AP1185-CR

2010 WI App 168, ¶21, 330 Wis. 2d 575, 794 N.W.2d 264; see also Greenwold,
189 Wis. 2d at 67.5

C. Meyer’s Squad Car Camera Video.6

¶19 The circuit court analyzed whether Revels had shown that the Meyer
squad car camera video was potentially exculpatory and concluded that it was (“I
think the [Meyer squad car camera] recording fits under the potentially

5
In briefing in this court, Revels relies on three Wisconsin appellate opinions which
concern spoliation of evidence in civil cases. My analysis does not rely on those opinions
because those are not applicable in this criminal case. The analysis regarding spoliation of
evidence in a civil case is not based on constitutional due process rights. See Estate of Neumann
ex rel. Rodli v. Neumann, 2001 WI App 61, ¶81, 242 Wis. 2d 205, 626 N.W.2d 821; Dimond v.
Henderson, 47 Wis. 172, 2 N.W. 73 (1879); Knapp v. Edwards, 57 Wis. 191, 15 N.W. 140
(1883).
6
In briefing in this court, Revels asserts that the circuit court determined that a squad car
camera video from Smith’s vehicle concerning this incident was potentially exculpatory. That is
not correct. The circuit court’s decision mentions only two videos, the Meyer squad car camera
video and the Meyer body-worn camera video. Revels does not argue that this was an error of the
circuit court. The briefing of the parties in this court considers only the Meyer squad car camera
and Meyer body-worn camera videos in any detail. References in Revels’ briefing in this court
about any Smith squad car camera video are in very general terms, and Revels does not attempt to
describe whether Smith’s squad car camera would have recorded anything at all, much less
anything that was potentially exculpatory. The testimony of Smith made only a quick mention of
this, and he stated that his squad car camera video was “overridden” at the scene and his squad
car camera was not facing in a direction where any relevant events occurred. Therefore, Revels
has failed to prove that anything that could have been recorded by Smith’s squad car camera was
potentially exculpatory, and this will not be mentioned further.

9
No. 2021AP1185-CR

exculpatory category.”).7 I start the discussion of whether the Meyer squad car
camera video was potentially exculpatory by taking up a preliminary point.8

¶20 The parties do not mention in their briefing a matter germane to this
appeal: Does “exculpatory,” as the term is used in this appeal, concern only
evidence that makes it less likely that Revels is guilty of each element of the
crimes charged, or does the definition of “exculpatory” in this context also include
evidence that makes it more likely that Revels will succeed on a motion to
suppress based on a lack of reasonable suspicion for Meyer’s contact with
Revels?9 I will assume that the more expansive latter definition applies. See State
v. Weissinger, 2014 WI App 73, ¶11, 355 Wis. 2d 546, 851 N.W.2d 780 (Ct. App.
2014) (discussing “outcome-determinative evidence”).

¶21 The current question, therefore, is whether the Meyer squad car
camera video was potentially exculpatory in that Revels has shown that the video
would have factually bolstered an argument that there was no reasonable suspicion
for Meyer to interact with him when Revels’ truck sat for thirty to forty-five

7
Revels argues that the Meyer squad car camera video was potentially exculpatory;
Revels does not argue in this court that the Meyer squad car camera video was apparently
exculpatory. In the circuit court, in response to an inquiry from the court, the prosecutor said that
the Meyer squad car camera video was potentially exculpatory. In this court, the State argues that
the Meyer squad car camera video was “at most” potentially exculpatory.
8
This issue also makes a difference to a question that will be analyzed within the bad
faith analysis in the next section of this opinion; namely, whether Revels has shown that the
officers had knowledge of the exculpatory nature of the videos before those were not preserved.
State v. Greenwold, 189 Wis. 2d 59, 69, 525 N.W.2d 294 (Ct. App. 1994).
9
In briefing in this court, the only assertion by Revels that the two Meyer videos could
be exculpatory concerns whether Meyer had reasonable suspicion for the stop. As one example
in Revels’ briefing in this court, he states: “If the recordings showed that Meyer lacked
reasonable suspicion, then the stop was unlawful and all evidence derived from the unlawful stop
would have to be suppressed.”

10
No. 2021AP1185-CR

seconds at a green light at 12:30 a.m. State v. Washington, 2005 WI App 123,
¶16, 284 Wis. 2d 456, 700 N.W.2d 305 (“When determining if the standard of
reasonable suspicion was met, those facts known to the officer at the time of the
stop must be taken together with any rational inferences, and considered under the
totality of the circumstances.… [T]o justify an investigatory stop, ‘[t]he police
must have a reasonable suspicion, grounded in specific articulable facts and
reasonable inferences from those facts, that an individual is [or was] violating the
law.’”).

¶22 Chief Schauf testified that the squad car camera in each car is always
recording. However, as relevant here, the system in the car begins saving that
recording once the officer activates the squad car’s emergency lights.
Additionally, when the system is activated, the system saves thirty seconds of the
recording prior to activation. Meyer testified that, while his squad car video might
have captured Revels’ vehicle parked at the traffic light, it might not have (“[I]t
depends [on] the angle of what my squad, or my patrol vehicle[,] was pointed.”).
Meyer further testified that, from the moment he saw Revels’ truck stopped at the
green light until the moment he parked behind that truck and activated his squad
car video, between fifteen and thirty seconds would have elapsed. Accordingly,
Meyer’s squad car camera would have recorded either nothing except the squad
car in motion or what was seen by the camera about fifteen seconds before his
squad car was in motion.

¶23 The circuit court stated the following in its decision about what the
Meyer squad car camera video would have exhibited: “[T]he testimony is unclear
at best of what it would show, when it would have shown, how much it would
have shown, and what importance that would have played. Nobody’s quite clear
on that subject, but the Court’s concern [] is that [] nobody seemed to know

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exactly when it would have started showing anything.” “[W]hat exactly and the
timing of what exactly was seen that Officer Meyer believes prompted his action
may or may not have been shown by the [Meyer squad car camera] recording, and
it’s that ambiguity that helps none of us.” Those statements of the circuit court
lead only to the conclusion that Revels has not met his burden to show that the
Meyer squad car camera video was potentially exculpatory. See Luedtke, 362
Wis. 2d 1, ¶39.

¶24 The circuit court also took up the question of whether Meyer had
reasonable suspicion for the stop. It stated the following regarding Meyer’s
contact with Revels:

As far as the reason for the officer to make contact
with Mr. Revels’ vehicle, certainly law enforcement
frequently makes contact with vehicles who would appear
to be stopped in a lane of traffic, if nothing more than for
safety concerns, not only for the vehicle that’s stopped in a
lane of traffic with a green light in this case, but also for
other vehicles that might come down the road and not
immediately realize that the vehicle wasn’t moving, that the
light was green but it wasn’t moving.

So I don’t fault Officer Meyer for making that initial
contact. I think it was appropriate under all of the
circumstances.

(Emphasis added.) Those statements of the circuit court also lead only to the
conclusions that there was reasonable suspicion for Meyer to make contact with
Revels and that Meyer’s squad car camera video did not contain potentially
exculpatory evidence.

¶25 The circuit court erred in concluding that the standard that the Meyer
squad car camera was potentially exculpatory had been met. D.J.W., 391 Wis. 2d
231, ¶47. Experience confirms that not every piece of evidence that is not
preserved will be at least potentially exculpatory. For the reasons mentioned, the

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record does not show that the Meyer squad car camera video was potentially
exculpatory.

¶26 Revels argues on appeal that the Meyer squad car camera video was
potentially exculpatory, but those arguments fail. First, he contends that “[a]ny
evidence showing what Meyer observed in the time before he activated his
emergency lights, and what he observed as he approached Revels, as well as
during his initial contact with Revels is critical to the assessment of this issue.”
Revels’ argument is beside the point. Simply because evidence is part of the
“assessment” of an issue by defense counsel does not make the evidence
exculpatory. And Revels gives no evidentiary basis for a contention that the
Meyer squad camera video contained any potentially exculpatory evidence.
Specifically, Revels points to no evidence in the record to rebut Meyer’s
undisputed written report and testimony (that is confirmed by Smith’s written
report as to what Meyer reported at the time) that Revels was stopped at a green
light for thirty to forty-five seconds in the middle of the night. The facts known to
Meyer constituted reasonable suspicion for the stop of Revels’ truck. Second,
Revels asserts that maybe the Meyer squad car camera video might have shown
Revels’ truck driving past the spot Meyer was parked. But, as discussed, Revels
did not meet his burden to prove what would have been shown by the Meyer
squad car camera video.

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¶27 In sum, Revels has not met his burden to show that the Meyer squad
car camera video contained potentially exculpatory evidence.10

D. The Officers Did Not Act in Bad Faith.

¶28 I now consider whether Revels proved, through evidence adduced at
the hearing, that the Meyer squad car camera video and the Meyer body-worn
camera video were not preserved by the officers in “bad faith.”11 Greenwold, 189
Wis. 2d at 70.

¶29 As already noted, acting in “bad faith” means that the officers “acted
with official animus or made a conscious effort to suppress exculpatory evidence.”
Luedtke, 362 Wis. 2d 1, ¶55 (quoting Greenwold, 189 Wis. 2d at 69). This court
has given a more particularized definition of “bad faith” in this context:

After articulating the due process standard, the
Youngblood Court failed to define or illustrate bad faith in
the context of the State’s failure to preserve potentially
exculpatory evidence. The Court did, however, indicate
what bad faith is not. Id. at 58, 109 S. Ct. at 337. It is
apparent from its analysis that there is no bad faith when
the police negligently fail to preserve evidence which is
merely potentially exculpatory. Id.

10
Revels also contends that the Meyer squad car camera video bears on the question of
reasonable suspicion for the stop because it is the “best evidence.” However, that contention is
untethered to the case law standards already mentioned and does not consider whether the video
was potentially exculpatory in these circumstances.
11
Whether the Meyer body-worn camera video contains apparently exculpatory evidence
will be discussed in the next section of this opinion. That video is mentioned here because, if the
Meyer body-worn camera video could be considered to be potentially exculpatory, then whether
the officers acted in bad faith as to that video would be material. I discuss whether there was bad
faith shown regarding the Meyer squad car camera video, even though the video is not potentially
exculpatory, in order to have a more complete analysis of the issues.

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… Also, many federal courts support the
proposition that negligence in preserving evidence is not a
proper basis for a showing of bad faith.12

Greenwold, 189 Wis. 2d at 68-69.

¶30 With that framework in mind, the circuit court’s decision is
considered. The circuit court stated, regarding his body-worn camera video, that
Meyer had the opportunity to follow the Baraboo Police Department’s written
policies for the preservation of the videos.13 But, Meyer relied on Smith to
preserve each of Meyer’s two videos. Referring to Meyer, the circuit court
concluded that this was a “flagrant violation of the policy.” The court came to a
somewhat different conclusion regarding Smith:

Officer Smith, in his efforts to ensure that the
evidence was actually properly saved, again labeled some
things, downloaded them, but downloaded exactly one
thing, his own body cam. And that too would have been in
violation of the policies.

¶31 The circuit court did not engage with the standards for determining
bad faith as discussed above. Put another way, the circuit court did not conclude
that the officers’ acts were done with “official animus” or “a conscious effort to
suppress exculpatory evidence.”

12
This court then collected several federal court opinions which held that negligence,
even gross negligence, by law enforcement in failing to preserve evidence does not constitute
“bad faith.” See Greenwold, 189 Wis. 2d at 69.
13
A written Baraboo Police Department policy states that, at the end of each shift, each
officer must “assure” any necessary case video has been uploaded to the central server. Also, as
to the body-worn camera, a written Baraboo Police Department policy states that “[o]fficers shall
copy the entire recording onto a DVD and enter the DVD into evidence/property of the case.”

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¶32 Regardless, Revels contends that the officers’ acts were done in bad
faith. More particularly, Revels’ argument relies on the conclusion of the circuit
court that Meyer not preserving his squad car camera video and body-worn camera
video to permanent media, and relying on Smith to do so, was a “flagrant violation
of the policy.” According to Revels, the “violations” of the policies by Meyer and
Smith “manifested bad faith.” Revels’ contention fails for at least two reasons I
next discuss, either of which is sufficient to reject the argument.

¶33 “Bad faith” in this context is defined by the standards already
enunciated in this opinion. A due process right is not violated solely by an officer
not following a written policy, and this is confirmed by federal case law I find
persuasive. In U.S. v. Deaner, 1 F.3d 192, 199-200 (3d Cir. 1993), the Third
Circuit Court of Appeals applied the standards regarding destruction of evidence
set forth in Youngblood. Deaner, 1 F.3d at 200. Deaner argued that the
government’s destruction of marijuana evidence related to his conviction did not
follow written procedures for the destruction of such evidence set forth in the
Code of Federal Regulations and, as a result, the government’s acts constituted
bad faith. Id. at 199. The court rejected that argument and held:

While a showing that the government did not follow
standard procedure could provide some evidence of bad
faith, we have not held that an improper procedure in and
of itself implies bad faith. While it may permit such an
inference, it does not syllogistically imply the presence of
bad faith as a matter of deductive logic.

Id. at 200; see, e.g., U.S. v. Greenwood, 246 Fed. Appx. 174, 176 n.2 (4th Cir.
2007). When law enforcement officers do not satisfy a written policy of their
department, that does not inexorably lead to the conclusion that a defendant, such
as Revels, has met his burden to establish bad faith on the part of the officers. As
one obvious example, an officer can fail to satisfy a written policy based on

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mistake or negligence, and such mistaken or negligent acts do not meet the
definition of bad faith. See Greenwold, 189 Wis. 2d at 68-69. Further, Revels
does not explain in any persuasive manner how these officers not satisfying a
written policy equates with either “official animus” or “a conscious effort to
suppress exculpatory evidence.” See Luedtke, 362 Wis. 2d 1, ¶55. The
Youngblood/Luedtke framework does not work backwards. In other words, that
the Meyer videos were not preserved despite written policies calling for those to
be preserved does not mean that the officers acted in bad faith. Accordingly, any
violation of the Baraboo Police Department written policies by the officers cannot
be the basis to conclude that bad faith has been established by Revels.

¶34 There is a second reason that Revels’ argument on bad faith is
rejected. Even if one could read into the circuit court’s decision that bad faith was
implicitly concluded by the court (and one cannot reasonably do so because,
among other reasons, the circuit court did not find that the testimony of the
officers was not credible), there is insufficient evidence to support Revels’
assertion that the officers acted in bad faith in not preserving the videos. As noted,
this court reviews de novo a determination of whether there is sufficient evidence
that a legal standard, such as bad faith, has been satisfied. See D.J.W., 391 Wis.
2d 231, ¶47. The evidence at the hearing established the following material facts.

¶35 Chief Schauf testified that Meyer’s expectation that Smith would
save all videos related to the Revels incident was general departmental practice;
that is, the lead officer (here, Smith) is responsible for permanently saving case-
related videos, and that officer will download multiple videos to permanent media.
After leaving the scene where he interacted with Revels, Meyer returned to the
station, and his squad car video was uploaded automatically to the Baraboo Police
Department’s server as described by Chief Schauf. In addition, Meyer’s body-

17
No. 2021AP1185-CR

worn camera video uploaded to the server when Meyer placed the camera in a
USB charging cradle at the station. Accordingly, at that point, the departmental
practice described by Chief Schauf was being followed by Meyer. His squad car
camera video was on the server because he drove to the station (and it uploaded
automatically to the server), and his body-worn camera video was on the server
because he intentionally uploaded that video. Both videos were then available for
Smith to retrieve and place on a permanent storage device.14

¶36 For his part, Smith testified that he took the following steps to
preserve Meyer’s videos and his own body-worn camera video:

[Defense Counsel]: You also say that Officer
Meyer’s body-worn camera recording and his [squad car
camera] recording were added to the case file, correct?

[Smith]: Yes, I did.

[Defense Counsel]: So you took responsibility for
Officer Meyer’s recordings, correct?

[Smith]: Yes, I did.

….

[Defense Counsel]: As you sit here today do you
have an independent recollection of actually storing Officer
Meyer’s [squad car camera] and Officer Meyer’s body
camera audio/video footage on a USB or a DVD?

[Smith]: I recall downloading them, reviewing
them before I put them on the USB file, and I recall
dragging those files onto the USB.

[Defense Counsel]: Where did you do that?

14
It bears noting that the two Meyer videos in question were not destroyed by the
officers. Rather, the videos were not preserved. As Chief Schauf testified, after 120 days on a
Baraboo Police Department server, the videos are overwritten at some undetermined time in the
future. As a result, the videos were written over per standard operating procedure of the server at
some point before the videos were searched for at Revels’ request.

18
No. 2021AP1185-CR

[Smith]: In the patrol room.

….

[Defense Counsel]: ... You say you have an
independent recollection of saving these audio/video
recordings, is that correct?

[Smith]: Yes.

[Defense Counsel]: And the way in which you
saved or stored them was to put them on a USB drive,
correct?

[Smith]: Initially I usually save them to a desktop
because they take a long time to download and then I
individually select the folders, drag them on to the USB
folder.

¶37 The prosecutor also asked questions of Smith on this topic:

[Prosecutor]: So some of that was you, I believe,
you download them from the server onto a, like a desktop
of one of the computers in your squad room?

[Smith]: That’s correct.

[Prosecutor]: And then once they’re there, you then
click, drag and drop them onto the USB drive or whatever
media you’re using?

[Smith]: Correct.

[Prosecutor]: Now, did you eventually go back and
look at the saved file or the, I guess the evidentiary file for
this case to see what was in fact saved?

[Smith]: I did.

[Prosecutor]: And what did you – was there a flash
drive in that file?

[Smith]: You’re talking about the evidence?

[Prosecutor]: Yes.

[Smith]: There was a flash drive.

[Prosecutor]: And did you plug it in to inspect what
was on there?

19
No. 2021AP1185-CR

[Smith]: I did.

[Prosecutor]: What, if anything, did you learn about
the files on that drive?

[Smith]: I found there were three copies of my
body-worn camera saved on the USB drive instead of the
other two videos from Officer Meyer’s.

[Prosecutor]: So all told in this case, let’s say you
had done things perfectly and saved Officer Meyer’s stuff
instead of three copies of your own, how many total videos
would there have been?

[Smith]: There would have been three.

[Prosecutor]: And there were in fact three on the
disk?

[Smith]: Ultimately there were three on the disk.

[Prosecutor]: Would you say it’s fair to say it was
an inadvertent mistake by you by dragging and dropping
the same file three times?

[Smith]: I would agree it was a mistake.

¶38 The evidence establishes that Revels has not met his burden to show
bad faith on the part of the officers. There is insufficient evidence that the officers
acted with “official animus” in failing to preserve the two Meyer videos. The fact
that the Chief of Police knew of, and condoned, the practice used by Meyer and
Smith of the lead officer taking responsibility for downloading videos from each
officer to permanent media is strong evidence that the officers did not act with
official animus. That conclusion is confirmed because that condoned general
practice was indisputably designed and intended to have the two Meyer videos
preserved. That practice is another route to preserve the Meyer videos that is
slightly varied from the written policies. There was a procedure in place for the
two Meyer videos to be preserved, and the only evidence is that both officers
intended to follow that procedure to preserve the videos. The testimony supports

20
No. 2021AP1185-CR

only the conclusion that Smith made a mistake in failing to preserve the videos.
That is where the procedure failed, and negligence cannot be a basis for a
conclusion of bad faith. Greenwold, 189 Wis. 2d at 68-69.

¶39 For many of the same reasons, there is insufficient evidence to prove
that the officers “made a conscious effort to suppress” the two Meyer videos.
There is no reasonable conclusion from this record that Meyer or Smith made a
conscious effort to see that these two videos were not preserved. The evidence
shows that the officers fully intended to preserve these videos, but Smith’s mistake
in not preserving the two Meyer videos is the reason those videos do not now
exist. See Youngblood, 488 U.S. at 58 (“The failure of the police to refrigerate the
clothing and to perform tests on the semen samples can at worst be described as
negligent.… The Arizona Court of Appeals noted in its opinion—and we agree—
that there was no suggestion of bad faith on the part of the police.”); Greenwold,
189 Wis. 2d at 70 (“There is no evidence that the officers acted with animus or
made a cognizant effort to suppress potentially exculpatory evidence either. Their
inadvertence or carelessness in preserving the evidence does not rise to a level of

21
No. 2021AP1185-CR

animus or a conscious effort to suppress evidence.”).15 For those reasons, Revels’
argument regarding bad faith fails.16

¶40 In addition, there is a separate portion of the bad faith analysis where
Revels’ assertions also fall short. Revels must prove that the officers were aware
of the exculpatory nature of the evidence at the time the two Meyer videos were
not preserved. Luedtke, 362 Wis. 2d 1, ¶55 (citing Greenwold, 189 Wis. 2d at

15
As part of his bad faith discussion, Revels attempts to argue that the written policies of
the Baraboo Police Department “create an expectation” that the videos would be preserved.
Revels gives no factual basis to conclude that anyone, including Revels, was aware of the
existence of the videos or these polices so as to create an “expectation” before the videos were
overwritten. In addition, Revels relies on State v. Huggett, 2010 WI App 69, 324 Wis. 2d 786,
783 N.W.2d 675, and this reliance is misplaced for several reasons. First, Huggett concerned
apparently exculpatory evidence, and the question of bad faith does not arise with failure to
preserve apparently exculpatory evidence. Id. at ¶16; Luedtke, 362 Wis. 2d 1, ¶57. Second,
Revels does not explain how the “expectation” argument he tries to draw from Huggett fits into
the Youngblood/Luedtke analysis that must be applied in these circumstances. Third, unique
facts in Huggett make it distinguishable from this case. In Huggett, Peach broke into the house
of Huggett and Kerbel, and Peach was shot to death by Huggett. Huggett, 324 Wis. 2d 786, ¶3.
Huggett was later charged with second-degree intentional homicide but, immediately after the
incident, Huggett claimed that he acted in self-defense and defense of others. Id., ¶1. Also
shortly after Huggett shot Peach, Huggett and Kerbel brought to law enforcement’s attention
threatening voice mail messages sent to Huggett and Kerbel from Peach. Id., ¶¶4-7. Law
enforcement “immediately realized” the evidentiary value and seized Kerbel’s phone and
Huggett’s phone. Id., ¶¶4-5. While in the possession of law enforcement, the State did not
preserve the voice mail messages and those were automatically deleted with no chance of
recovery. Id., ¶10. In those circumstances, in which the State was immediately aware of the
clearly exculpatory evidence, took the phones that belonged the Huggett and Peach, and then
allowed the voice mails to be deleted, there may be a place for an “expectation” consideration
because the Huggett court was discussing “exclusive control” of the evidence. Id., ¶¶16-18.
Those unusual facts are not present here.
16
In a possible reference to bad faith, the circuit court stated near the end of its decision:
“And what would have prompted Officer Meyer to hand that off to Officer Smith is unknown, it’s
untested, and we have no way of actually determining whether that was proper at that point in
time.” It is difficult to put this remark into context in the Youngblood/Luedtke analysis because
none was given by the circuit court. More importantly, how Officer Meyer losing his voice
(which was confirmed by Smith in his testimony) makes any difference to the analysis in this case
is not explained by either the circuit court or Revels. As well, the only evidence in the record
about the reasons Officer Smith took over the investigation of Revels was because Meyer was
losing his voice and Meyer’s shift was about to end.

22
No. 2021AP1185-CR

69). Revels fails to meet his burden on this portion of the bad faith analysis for the
following reasons. First, as already discussed in the previous section of this
opinion, there is no basis to conclude on this record that there was exculpatory
evidence on the Meyer squad car camera video. Second, the same is true
regarding Meyer’s body-worn camera video as will be discussed in the next
section of this opinion. Third, as will also be seen in the next section of this
opinion, the officers’ testimony does not support a conclusion that the officers
agreed at the hearing that the two Meyer videos contained exculpatory evidence.

¶41 In sum, Revels fails to prove that Meyer and Smith acted in bad faith
in not preserving the Meyer squad car camera video and the Meyer body-worn
camera video.

E. Meyer’s Body-Worn Camera Video Was Not Apparently Exculpatory.

¶42 The remaining issue is whether Revels met his burden to show that
the Meyer body-worn camera video was apparently exculpatory.17 Luedtke, 362
Wis. 2d 1, ¶39. I start the analysis with statements made by the circuit court on
this issue.

¶43 Concerning the Meyer body-worn camera video, the circuit court
stated, “and that in and of itself speaks to the fact that it was a particular piece of
evidence that has the ability to be apparently exculpatory, but yet again we have
no way of knowing.” (Emphasis added.) That conclusion of the circuit court

17
If Revels has not shown that the Meyer body-worn camera video contained
exculpatory evidence, it cannot be a basis for dismissal of the charges. If Revels has not shown
that the Meyer body-worn camera video was potentially exculpatory, then it cannot be a basis for
dismissal of the charges because, as discussed, the officers did not act in bad faith in failing to
preserve this video. See Luedtke, 362 Wis. 2d 1, ¶57.

23
No. 2021AP1185-CR

supports the proposition that Revels failed to meet his burden to show that the
Meyer body-worn camera video was apparently exculpatory.

¶44 The circuit court also made this statement in its decision regarding
the Meyer body-worn camera video: “Again, we don’t have a clear recollection
by Officer Meyer of when he even turned his body camera on, so we’re not even
certain whether this was two minutes, five minutes, seven minutes, we have no
idea because again the report gives us no indication about any of that.”18 Revels
does not rely on that statement by the circuit court because there is no dispute that
Meyer spoke to Revels for a period of time that was not lengthy and, if there were
several minutes before Meyer activated his body-worn camera, it necessarily
follows that it is much less likely that the Meyer body-worn camera video could
have contained apparently exculpatory evidence.

¶45 More importantly, the record does not support the finding of the
circuit court that there is a discrepancy of several minutes as to when Meyer
initiated his body-worn camera in his personal interaction with Revels. A circuit
court’s findings of fact are clearly erroneous when those findings are “unsupported
by the record.” Royster-Clark, 290 Wis. 2d 264, ¶11. Meyer’s testimony shows
that he activated the body-worn camera for his personal interaction with Revels.
Meyer also testified that “all” of his contact with Revels was being recorded. The
only qualification of Meyer’s testimony on this point is that he did not
“specifically remember the exact millisecond” when he turned on his body-worn

18
The basis for Revels’ motion concerns the failure to preserve the two Meyer videos.
There is no assertion that Meyer acted improperly, or violated Revels’ due process rights, based
on when he turned on his body-worn camera.

24
No. 2021AP1185-CR

camera. In fact, Revels’ briefing in this court contradicts the circuit court’s
finding and states:

This includes information about [sic] drew Officer Meyer’s
attention to the truck, and includes his first contact with
Revels. This information was recorded on Meyer’s body-
worn camera; it was created when Meyer turned on the
camera as he activated his squad’s emergency lights—as
the department’s policy requires.

For those reasons, the record does not support the circuit court’s finding. The
record is that Meyer’s body-worn camera was recording during Meyer’s personal
interaction with Revels.

¶46 Regardless, the circuit court determined that the Meyer body-worn
camera video was apparently exculpatory. The initial reason given by the circuit
court is that its conclusion is “based on the testimony of both officers.” That was
explained later in its decision when the court stated: “Both officers concurred that
in fact they believed that they had at least potential exculpatory information, if not
apparent exculpatory information.” That reasoning of the circuit court falls short
for at least two reasons. First, neither the circuit court nor this court is bound by a
witness’s view about whether evidence is exculpatory in any sense. Second, and
just as importantly, that is not what the officers said at the hearing. Revels’
counsel asked Meyer the following questions and received these pertinent
answers:

[Defense Counsel]: You believed, given what you
told Officer Smith, that those recordings were evidence of a
possible crime, correct?

[Meyer]: Correct.

[Defense Counsel]: You understood that that
evidence might play a significant role in this case, correct?

[Meyer]: It would assist, yes.

25
No. 2021AP1185-CR

[Defense Counsel]: You believed and understood
that it could be both important to the prosecution and the
defense, correct?

….

[Meyer]: Yes, I believe that would have some
value.

[Defense Counsel]: To both the defense and
prosecution, correct?

[Meyer]: Correct.

[Defense Counsel]: You believe that this evidence
could be and might be evaluated by both the defense and
prosecution to test the stop, correct, the legality of the stop,
correct?

[Meyer]: Correct.

(Emphasis added.) Revels’ counsel asked the following questions and received
the following pertinent answers from Smith:

[Defense Counsel]: And you believed that these
recordings contained evidence of what might be a crime,
correct?

[Smith]: Yes.

[Defense Counsel]: And you believed that this
evidence might play a significant role in this case, correct?

[Smith]: Correct.

[Defense Counsel]: You believed that it could be
significant to both the prosecution and the defense, correct?

[Smith]: Yes.

[Defense Counsel]: You believed that the evidence
would be subject to evaluations by the prosecution and the
defense, correct?

[Smith]: Of course.

(Emphasis added.)

26
No. 2021AP1185-CR

¶47 The questions asked by Revels’ counsel were not material to the
issue of whether these videos contained apparently exculpatory evidence. In these
circumstances, evidence is exculpatory if its use makes it more likely that the
defense will succeed in challenging the State’s proof regarding the elements of the
crime charged or in asserting that there was no reasonable suspicion. See ¶21,
above. Those rather vague and generalized questions were about these subjects:
the videos were “evidence of a possible crime”; the videos “might play a
significant role in this case”; the videos “could be significant to both the
prosecution and defense”; the videos “might be evaluated” by the prosecution and
defense; and the like. Those questions and answers were limited to areas that do
not directly concern whether the videos contained exculpatory evidence. The
officers’ testimony was, at most, that the videos would give defense counsel a
basis to advise Revels regarding the elements of the crimes or a motion to
suppress. Revels tries to re-frame the questions and answers in a manner
unsupported by the testimony in an attempt to buttress an assertion regarding
exculpatory evidence. But, the officers were not asked about that. The testimony
of the officers does not lead to the conclusion that the officers said there was
exculpatory evidence on these videos and, as a result, is not a basis to state that the
Meyer body-worn camera video was apparently exculpatory.

¶48 The other reason given by the circuit court that this video was
apparently exculpatory is that, according to the court, there is a “lack of
consistency between what Officer Smith believed Officer Meyer told him and
what Officer Meyer believed his testimony would be.” That statement is not
explained by the circuit court, and there is nothing material in any argument from
Revels or from the testimony of either officer (or their reports) that contradicts the
testimony of the other officer.

27
No. 2021AP1185-CR

¶49 Moreover, the record establishes that Revels has failed to show that
the Meyer body-worn camera video was apparently exculpatory. A “mere
possibility” that evidence may be exculpatory does not prove that the evidence
was apparently exculpatory. Munford, 330 Wis. 2d 575, ¶23. Meyer’s detailed
written report of what he observed on the night in question, based in part on what
he saw on the video in order to prepare his report, does not contain exculpatory
evidence.19 That report is summarized and quoted at ¶4, above. It states the
inquiries to Revels from Meyer and the responses. The report states material
details regarding Meyer’s interactions with Revels which I repeat here:

By this time, I smelled a strong odor of intoxicants
emitting from Rory’s vehicle. Rory also presented with
glassy, watery and bloodshot eyes. Rory also presented
with slurred speech, slowed response time to my questions
and slowed movements. From my training and experience,
I know these to be possible clues of alcohol intoxication.

… I asked Rory where he was coming from and he
stated he was coming from the Wisconsin Dells area. I
asked Rory to tell me how he got to Baraboo. Rory was
unable to explain to me how he got to Baraboo or where he
came from in terms of his location for consuming alcoholic
beverage[]s.

The observations of Meyer detailed in his report establish that there was
reasonable suspicion that Revels had been operating a motor vehicle under the
influence of alcohol. See Washington, 2005 WI App 123, ¶16. Those same
observations of Meyer were repeated to Smith by Meyer upon Smith’s arrival and

19
The circuit court found that Meyer reviewed his body-worn camera video for purposes
of writing his report. “In this particular case the body camera was used for the benefit of Officer
Meyer. He indicated that he did review it for purposes of writing his report.” There is no
assertion, and no basis in this record for such an assertion, that Meyer’s use of his body-worn
camera video to prepare his report was improper. That is not alleged as a ground for dismissal in
Revels’ motion, and both of the written policies of the Baraboo Police Department that are relied
on by Revels state that the videos can be used to write reports.

28
No. 2021AP1185-CR

are described in Smith’s report quoted in ¶6, above. The signs of intoxication
exhibited to Meyer by Revels were then confirmed a few minutes later when
Smith spoke to Revels as noted in Smith’s report quoted in ¶7, above.

¶50 The circuit court made no finding that the statements in the officers’
reports, or their testimony about the reports, were not credible. Revels produces
no information in this record that contradicts the information in Meyer’s written
report or his testimony at the hearing about what happened after Meyer
approached Revels’ car and spoke to him. Revels produces nothing to show that
the Meyer squad car camera video would contradict in any material way what
Meyer said in his written report or his testimony at the hearing regarding that
interaction.20 As a result, Revels does not allege any factual basis that this video
would have revealed apparently exculpatory evidence. The record establishes that
the Meyer body-worn camera video contained only inculpatory evidence.

¶51 Revels states in briefing in this court that, at the hearing, Meyer
“could not recall what questions he asked Revels … or the order in which he asked
them.” That is not accurate. At the time of the hearing, Meyer could not recall the
“exact questions … asked” or the “exact” order he asked the questions of Revels.
In any case, Revels does not explain in any discernable manner why the exact
wording of the questions or the exact order of the questions makes a difference

20
In briefing in this court, Revels asserts that Meyer prepared his written report
approximately forty hours (less than two days) after the Revels incident occurred. Chief Schauf
testified that it is standard practice for officers to prepare reports at the end of the shift, but not a
requirement. As discussed, Meyer had lost his voice and went home for that reason at the end of
his shift after his interaction with Revels. Meyer testified that his memory of events would have
been somewhat clearer immediately after the interaction with Revels rather than forty hours later.
But, he also testified that he reviewed his body-worn camera video in preparing his report, and
that video assisted his memory of events. Importantly, his memory of events at the time of the
hearing matched the information in his report.

29
No. 2021AP1185-CR

regarding the purportedly exculpatory nature of this video. Further, the fact that
Meyer did not have a perfect memory of all details of his exchange with Revels at
the time of the hearing does not turn his body-worn camera video into apparently
exculpatory evidence.21

¶52 In sum, Revels has not met his burden to show that the Meyer body-
worn camera video was apparently exculpatory.22

¶53 The analysis to this point is enough to reverse the order of the circuit
court, but I take up one more issue regarding the Meyer body-worn camera video.

F. There is Comparable Evidence for the Meyer Body-Worn Camera Video.

¶54 Revels must prove one other matter regarding the Meyer body-worn
camera video in order to succeed on his motion to dismiss. “In order to establish
that the State violated his due process rights by destroying apparently exculpatory
evidence,” a defendant must demonstrate that “the evidence is ‘of such a nature
that the defendant [is] unable to obtain comparable evidence by other reasonably
available means.’” Munford, 330 Wis. 2d 575, ¶21; see also Greenwold, 189
Wis. 2d at 67. Revels states in conclusory fashion that no comparable evidence

21
This matter took time to get to an evidentiary hearing. The complaint was filed on
March 3, 2020. In May 2020, Revels’ counsel was informed that the videos were not preserved.
Revels’ motion to dismiss was filed on September 29, 2020. It took six months from that date
before the evidentiary hearing was held. In light of the fact that it took more than a year from the
filing of the complaint to the date of the evidentiary hearing, it is hardly surprising that Meyer
stated at the hearing that his memory of his interactions with Revels was not perfect.
22
Revels mentions in briefing in this court that the Meyer body-worn camera video
might have shown Revels’ car when Meyer was pulling in behind Revels’ truck and before Meyer
exited the squad car. However, there is no basis in the record to show that the Meyer body-worn
camera video would have shown Revels’ truck. It was Revels’ burden to show this, he has not
done so, and this assertion does not support his motion to dismiss.

30
No. 2021AP1185-CR

exists for the Meyer body-worn camera video. I disagree for the following
reasons.

¶55 In its decision, the circuit court stated: “The nature of this offense at
some point would have been shown through I believe Officer Smith’s body
camera of exactly what condition Mr. Revels was in.”23 The circuit court did not
connect that statement to the issue discussed in this section of this opinion. But,
from that, it necessarily follows that the Smith body-worn camera video would
have shown evidence comparable to what was on Meyer’s body-worn camera
video.

¶56 The Meyer body-worn camera video would have contained evidence
of reasonable suspicion because, according to Meyer’s report and his testimony, it
shows Revels’ indications of intoxication as already noted. It is not disputed that
the Smith body-worn camera video started, at the latest, a short time after Meyer’s
personal interaction with Revels. The Smith body-worn camera video, according
to the written report of Smith and his testimony, shows Smith’s interactions with
Revels, which were very similar to that seen and heard by Meyer. The Smith
video also shows the lengthy OWI field sobriety testing. There is no basis in this
record to conclude, and Revels does not meaningfully argue, that Revels had one
set of indications for intoxication when Meyer interacted with him and a different
set of indications for intoxication when Smith interacted with him a few minutes
later.

23
Revels does not dispute that Smith preserved his own body-worn camera video and
that it was made available to Revels in discovery.

31
No. 2021AP1185-CR

¶57 Therefore, even if the Meyer body-worn camera video was
apparently exculpatory (and it was not), Revels’ argument regarding that video
fails because he has not met his burden to show that there is no comparable
evidence for the Meyer body-worn camera video.24

CONCLUSION

¶58 For the foregoing reasons, Revels’ motion failed, the order of the
circuit court is reversed, and the cause is remanded for further proceedings.

By the Court.—Order reversed and cause remanded for further
proceedings.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

24
The issues already resolved are dispositive, and I need not reach the question of
whether the remedy of dismissal granted by the circuit court was appropriate.

32