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.

http://www.ithacadwi.com

newman.lawrence@gmail.com

607-229-5184

Reviews of Larry Newman:

http://www.avvo.com/attorneys/14850-ny-lawrence-newman-530905.html

Chosen as a 2013 Rising Star in DWI/DUI in Upstate New York by Super Lawyers

Caveat Emptor! Cheap Lawyer Legal Services

In any given day I am on phone more than I am off the phone. Whether this is a good thing or not I can't really say. Should I be concerned about cell phone radiation? Or should I be more concerned about global warming or my neighbor's desire to frack? So many pressing questions and neurotic wanderings. Ithaca forces me to think about my impact on the planet!

Discounted Legal Services

As an Ithaca attorney that sells legal services sometimes (it is not often) people ask me for a discount. You've seen those internet ads, tickets for $195, DWI defense for $500, divorce for $399, and the list goes on and on.

Ah the dangers of dis-counted professional services.

I feel this is a huge problem because anytime you engage anyone for a service/a job to do there MUST be an equal footing. A give and take, as they say in latin, "quid pro quo."

Quid Pro Quo

Quite simply, "You give something and you get something." Trying or attempting to violate this law of nature (law of the universe) will lead to multiple problems. The Universal Law is called the Law of Reciprocity. Punishment for violating man-made law is one thing but the punishment/pain for violating Universal ones can be moreso. It is true in Every relationship you have.

First, if you give but do not receive you will feel resentment (re-sent-ment = feeling uneven). This will grow as the magnitude (the size) of the discrepancy enlarges. You know how you feel when someone takes and takes and then takes some more, in Yiddish (my Jewish roots) we call this person a Schnorrer. In German, a schnorrer is a freeloader, someone that pinches you for little crap over and over. What is worse is that this person feels entitled for some reason to get without giving.

Attorneys or doctors or any other professional who gives without receiving is unlikely to want to take your call, let alone return your call, or even spend anytime with you or your problem.

Second, people feel good about their relationship with anyone when they are on an equal footing. Balanced relationships mean meeting the other party's values and goals. In our personal relationships this is not usually achieved through money. In fact, it might be easier to pay then to have to sit through another fantasy chick flick where men act and think like women, just kidding. Creating and fostering a healthy professional relationship necessitates the exchange of money for service. Bartering is usually not a viable or easy option.

Dis-Counted Services

In Spanish, DES = un when before a word, as in "not counted." This is the same as in English, DIS = un, as in services which are "NOT counted" or worse yet, "NOT valued", or NOT worth as much.

I refuse to dis-count my self, my time, my experience, or the value of what I have to offer. Basically, dis- anything means to de-value. Anyone doing this is telling you loud and clear exactly how they feel about themselves and what they have to offer the world. They feel worth-less (they are selling themselves out) than they are willing to charge. The price (label) on their sleeve is cheap. With that mindset, how they value your time, the court's time, and their own time (and service) is going to be a potential problem.

Judging a Book by It's Cover

Maybe you should not judge a book by it's cover? Maybe the unshaven, unkempt, unclean, and disheveled person you hire to work on something is really a highly competent, skilled, knowledgeable, and experienced professional? Does professionalism run skin deep? If someone does not invest in their appearance, in their continuing education, and in their personal health/well being does all that speak louder than words? First impressions may not be always be accurate but they are telling.

What you see is what you get. If by some miracle you believe in Hollywood fantasy then maybe you buy into the fact that people can be and are usually incongruent. That the bum on the street is really a prince in disguise or that the child rapist is really a loving father.

Real world 101: people generally act, look, walk, and talk with congruency. They are what they are. If they are sloppy in their personal lives than it is likely they are just as sloppy in their practice lives. If they are cheating on their wives/girlfriends what makes them now selectively honest with you? If someone has their stuff together personally then it is likely they are a pretty good gamble/ bet professionally. I have run and consulted for dozens of professional practices as both Chiropractic Physician and as an Attorney. I can state with absolute certainty that Your "Practice" life usually mirrors Your "Personal" life.

Services are More than Time

The plumber comes over the house, spends five minutes checking the pipes to the radiators, takes out his wrench, makes two twists on one pipe and charges you $80.00. In 10 minutes he checked. evaluated, and fixed your problem. Was he worth $480/hour? Yes. You did not pay him for his time, you paid him for his expertise, his experience for the past 20 years, and his knowledge. Would you rather have the 15 minute digital laser root canal or the three hour manual drill root canal? Maybe you want your money's worth lol.

What a professional knows is worth far more than their time expended. A para-legal or neophyte lawyer may be able to do the job but at what skill level is questionable. What they counsel you on or about may be vitally important. What they fail to tell you or what they forget or what they just do not know can make a difference.

Do you honestly believe that you can get the for a limited time only, super discounted legal service
AND a highly qualified, experienced, and skillful advocate? If you do I have some land to sell you in the Florida Everglades (it may be under water right now) at a special dis-count.

Having it BOTH Ways

You can't have it both ways. You can't have your cake and eat it too (what that really means I will never understand). In other words, dis-count and high value and worth don't go together.

People who are true professionals with confidence, high self worth, and self esteem
DO NOT Dis-count themselves. I know what I am worth, I honor my value to my clients and to my profession. I pledge myself to provide a service that is first rate, first class, and of integrity.

Waking up in the morning and looking in the mirror is easy if you are competent, confident, and do something very well.

Caveat Emptor

When it comes to any professional service these days, Caveat Emptor (let the buyer beware). Be aware of what you are buying. Be aware of who you are dealing. Be aware of what you are getting. And if for some reason you feel you can cheat the system (the universe) or anyone or anything else of their due
may G-d help you. For the scales will not be in your favor. The grand balance does not care about your
entitlements, your baggage, your personal gripes or anything else, it knows one thing, there will be a balance sometime and somewhere.

Lawrence (Larry) Newman, D.C., J.D.

Doctor of Chiropractic

Attorney and Counselor at Law

The Gateway Center

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com