Thursday, August 23, 2012

What's the Importance of a Discovery Demand in a DWI Case?


GOOD LAWYERS MAKE DEMANDS

Lawyers love to use common words and terms that mean different things legally.

Words like:

Brief: a legal document not your underwear
Motion: a legal request for the Court to do something but not necessarily involving physical movement
Plea: your answer to a charge not a beg or a request

So what is a DEMAND FOR DISCOVERY

First, Discovery is a demand for information by a person and/or party to a lawsuit.
Second, there are different types of Discovery:

In a Civil case it is the proof/documentation of negligence, and of damages.
In a Criminal case it is the evidence that the government/state/prosecutor plans to use against you.
The evidence and proof they will use to prosecute you for crimes.

Criminal cases are broken down into those offenses that are crimes and those which are Non-crimes.
Non-criminal offenses are also referred to as Violations.

Violations can still have penalties like crimes. You can still go to jail for a violation, you can still lose your license from a violation, or lose your ability to receive Federal/State benefits from a Violation level offense. Depending upon it's nature Violations can impact you and your life.

FIRST things FIRST: Make Demands Early

In the beginning of any Defense of a DWI CASE or any Criminal Matter there Must be a DEMAND for Discovery. This should occur after an Initial Appearance (Arraignment). Sometimes this is framed by the attorney as a demand for A Bill of Particulars. This is how the prosecution (DA) plans on proving their case.

DISCOVERY can be (but is not limited to): Witnesses and witness statements, police reports, blood/breath/urine evidence, breath testing procedures, videos, audio recordings, etc.

In a Violation (traffic offense) Case the Request for Discovery is called A REQUEST (demand) for a Supporting Deposition. 

NOTE: In a NYS ticket (vehicle and traffic law) case you are only Entitled to a supporting deposition (affidavit) of the officer/trooper/deputy stating the crime (offense) they believed/saw you commit.

The Main Purpose of Discovery

1. The purpose of discovery is to see what you are up against.

2. You attorney must "discover" (UN-cover, reveal) the strengths and weaknesses of their case against you. 

Here is the beginning of my DWI Discovery Demand:


DISCOVERY



I. PLEASE TAKE NOTICE that pursuant to CPL 710.30(1), the defendant hereby demands that the District Attorney specify, in detail, particulars of the evidence intended to be offered of statements made by defendant to a public servant and of particulars of evidence identifying the defendant as a person who committed the offense(s) charged by a witness (witnesses) who has (have) previously identified the defendant.

II. PLEASE TAKE FURTHER NOTICE that pursuant to CPL 240.20 the defendant hereby demands that the District Attorney disclose and make available for inspection,



a. Any written, recorded or oral statement of the defendant and of any codefendant to be tried jointly, made other than in the course of the criminal transaction to a public servant engaged in law enforcement activity or to a person then acting under his direction or in cooperation with him. This encompasses all statements made by defendant regardless of whether the People intend to offer such statement at trial on their direct case or on cross examination of defendant. Such statements should include but are not limited to any form signed by the defendant concerning: 1) statements made by the defendant to police officers about the physical condition of the defendant while in custody, and 2) information orally given by the defendant to police officers who have recorded it. This demand also encompasses any writing containing the substance of information given by the defendant to police officers.

b. Any police property voucher and police receipts for property containing a list of property that the defendant either had in his possession when arrested and/or containing a list of property that the police removed from the defendant upon arrest.

c. Any written, recorded or oral statement of the defendant made to a private citizen that the People intend to offer at trial either on their direct case or on cross-examination of defendant.

d. Any transcript of testimony relating to the criminal action or proceeding pending against the defendant, given by the defendant or by a codefendant to be tried jointly, before any Grand Jury.

e. Any written report or document or portion thereof concerning a physical or mental examination, or scientific test or experiment, relating to the criminal action or proceeding and which was made by, or at the request or direction of a public servant engaged in law enforcement activity or which was made by a person whom the prosecutor intends to call as a witness at trial, or which the People intend to introduce at trial.

f. Any photograph or drawing relating to the criminal action or proceeding which was made or completed by a public servant engaged in law enforcement activity, or which was made by a person whom the prosecutor intends to call as a witness at trial, or which the People intend to introduce at trial. This includes but is not limited to:


1. Crime scene photographs and drawings.

2. Any arrest photograph of the defendant or other photograph of the defendant which came into police custody.

3. Photographs of any lineups involving the pending case.

4. Any photographs exhibited to witnesses including that of the defendant and or other persons involved in any photo identification proceeding, whether or not an identification was made by a witness.

5. Any composite sketch or drawing attempting to depict any of the alleged perpetrators of the crime.

6. Photographs of any witnesses or alleged victims showing the physical condition of that person.

7. Photographs of police department flyers which attempt to depict any property involved in the pending case which would include but is not limited to property alleged to have been stolen during the commission of the crime or property seized from the defendant or a codefendant.

g. Any other property obtained from the defendant or codefendant to be tried jointly.

h. Any tape or other electronic recordings which the prosecutor intends to introduce at trial irrespective of whether such recording was made during the course of the criminal action.

i. Anything required to be disclosed, prior to trial to the defendant by the prosecutor, pursuant to the constitution of this state or of the United States.

j. Any audio or video tapes, computer printouts or entries, or other electronic recordings made in the course of the investigation or preparation of this case, including but not limited to communications of any kind received, sent or monitored the Office of Emergency Communications, copy of any email, voice mail, answering machine tapes or messages, dictation tapes, computer disks, CD ROMs, or any other computer records or electronic media in which such records are stored, as well as copies of any documents, tapes or other media of any nature concerning any electronic surveillance, "trap and trace" devices, alpha or numeric pager messages, telephonic or other electronic communications of any type;

k. The date, time and place of the offense charged and the date, time and place of the defendant's arrest. 


III. PLEASE TAKE FURTHER NOTICE that pursuant to CPL 100.25 the defendant hereby demands that the defendant be provided with supporting depositions for each and every violation of the Vehicle and Traffic Law charged in this case.

IV. PLEASE TAKE FURTHER NOTICE that pursuant to CPL 240.20 the defendant hereby demands that the District Attorney disclose and make available for inspection, photographing, copying or testing, the following property regarding the alleged violation of Vehicle and Traffic Law Section 1192:

(a) Any written report or document, or portion thereof, concerning physical examinations, scientific testing and/or experiments, relating to the pending charge of Driving While Intoxicated and made by, or at the request or direction of a public servant engaged in law enforcement activity.

The material requested should include, inter alia, if applicable, the following:

1. Alcohol/Drug Influence Report Form

2. Breathalyzer Test Record and Breathalyzer Operational Check List

3. Central Testing Unit Work Sheet

4. Report of Refusal to Submit to Chemical Test

5. Simulator Maintenance Log for Unit Used

6. Entire Breathalyzer Maintenance Log for Unit Used, including records of inspection, calibration or repair of said machine.

7 Breathalyzer Ampoule Test Record

8. Certificate held by the operator of the Breathalyzer machine

photographing, copying or testing the following property:




(b) A copy of all routine police reports concerning the instant case except to the extent that they contain legal opinions or theories which fit within the exclusion for attorney's work product (CPL 240.10(3)).



Depending upon the type of case, discovery demands can be many pages long. What is requested must be specific and detailed.

Knowing the details allows a focused challenge to the evidence or any areas of weakness.


Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

newman.lawrence@gmail.com
607-229-5184

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