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  1. #1
    jacobtjohnston is offline Junior Member
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    Discovery Motion

    Is it permissable for the accused in a DUI case to file a discovery motion to obtains reports, officer statements, and video evidence? I got a DUI at a roadblock, wasn't visably intoxicated, and refused the breath test. A DUI lawyer said the video of the sobriety tests would be key to the case, but wanted a big fee just to submit the motion. I would like to request the discovery motion myself and then hire a lawyer if there may be a case.

    Thanks for your time.
  2. #2
    CdwJava is offline Senior Member
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    Quote Originally Posted by jacobtjohnston View Post
    Is it permissable for the accused in a DUI case to file a discovery motion to obtains reports, officer statements, and video evidence? I got a DUI at a roadblock, wasn't visably intoxicated, and refused the breath test. A DUI lawyer said the video of the sobriety tests would be key to the case, but wanted a big fee just to submit the motion. I would like to request the discovery motion myself and then hire a lawyer if there may be a case.

    Thanks for your time.
    Whether you have a right to discovery prior to being assigned counsel will depend upon the laws in your un-named state. In the end, if you intend to defend yourself from a DUI case you will almost certainly lose.

    If you cannot afford an attorney, the state will appoint one on your behalf. If you CAN afford an attorney, I would strongly recommend you get one. If you try to do this yourself, you will be held to the same standards as an attorney and will be granted little leeway in what you do. More than likely, you will muck your defense up if you try this yourself.

    - Carl
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  3. #3
    jacobtjohnston is offline Junior Member
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    Sorry, I meant to put the arrest was in Henry County, Georgia. I certainly agree that I would lose a case if I tried to do it myself. I just don't want to pay $3000 to plead guilty. My intent would be to show the evidence to a lawyer hire him if the case was going to be tried.

    Are you saying that the discovery motion is more complex than a layperson can draft? I'm a educated engineer and took some criminal justice classes so I thought that obtaining the discovery materials myself to see if it is worth proceeding would be a smart move before I paid a big chunk of money to a lawyer.

    In this limited context, would me initiating discovery be problematic or mean that I couldn't later hire a lawyer to try the case?

    Thanks again.
  4. #4
    CdwJava is offline Senior Member
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    Quote Originally Posted by jacobtjohnston View Post
    Sorry, I meant to put the arrest was in Henry County, Georgia. I certainly agree that I would lose a case if I tried to do it myself. I just don't want to pay $3000 to plead guilty. My intent would be to show the evidence to a lawyer hire him if the case was going to be tried.
    I am not sure how the Discovery process works in your state. They might grant you discovery pre-trial without an attorney ... or, they might. heck, maybe if you just ask for the information at the court or the police department they will provide it to you.

    Most attorneys - even DUI attorneys - are going to take a plea. Very few cases go to trial. if the case is good enough, the DA files. If it is filed, the defense's best defense is typically with the reasonable suspicion for the stop or contact. If that fails, it is usually time for a plea deal unless you have a great deal of money to spend on a questionable technical fight involving paid experts.

    Are you saying that the discovery motion is more complex than a layperson can draft?
    No, but if you do it wrong, they will not have to respond. And if you are ineligible to receive discovery, then it's a waste of time. It's not complex, but it has to be done in the proper format and submitted to the proper authority ... if you do not know who that is for each of the items you might seek, you might not get what you want.

    In my state, they would no have to provide you discovery material prior to arraignment, and even then you would only likely obtain it if represented by counsel or if you told the court you would act as your own attorney. Your state might be different.

    In this limited context, would me initiating discovery be problematic or mean that I couldn't later hire a lawyer to try the case?
    I would think that the worst that would happen is that it would be rejected. You might consider calling a legal aid agency or even a law school in your area (or a nearby big city) and see if they have any person or group that can provide some direction on how to accomplish this or if it is possible. It might also be possible that your local court has resources for pro per individuals to obtain information. You'll have to do a little work to track this down.

    The relevant codes for you seem to be GA Codes 17-16-21 ...

    17-16-21. Right of defendant to copy of indictment or accusation and list of witnesses

    Prior to arraignment, every person charged with a criminal offense shall be furnished with a copy of the indictment or accusation and, on demand, with a list of the witnesses on whose testimony the charge against such person is founded. Without the consent of the defendant, no witness shall be permitted to testify for the state whose name does not appear on the list of witnesses as furnished to the defendant unless the prosecuting attorney shall state that the evidence sought to be presented is newly discovered evidence which the state was not aware of at the time of its furnishing the defendant with a list of the witnesses.

    17-16-22 ...
    17-16-22. Right of defendant to copy of statement given while in police custody; failure of prosecution to comply; evidence discovered after filing of request
    (a) At least ten days prior to the trial of the case, the defendant shall be entitled to have a copy of any statement given by the defendant while in police custody. The defendant may make such request for a copy of any such statement, in writing, within any reasonable period of time prior to trial.

    (b) If the defendant's statement is oral or partially oral, the prosecution shall furnish, in writing, all relevant and material portions of the defendant's statement.

    (c) Failure of the prosecution to comply with a defendant's timely written request for a copy of such defendant's statement, whether written or oral, shall result in such statement being excluded and suppressed from the prosecution's use in its case-in-chief or in rebuttal.

    (d) If the defendant's statement is oral, no relevant and material, incriminating or inculpatory, portion of the statement of the defendant may be used against the defendant unless it has been previously furnished to the defendant, if a timely written request for a copy of the statement has been made by the defendant.

    (e) This Code section shall not apply to evidence discovered after a request has been filed. If a request has been filed, such evidence shall be produced as soon as possible after it has been discovered.

    And, 17-16-23 ...

    17-16-23. Right of defendant to copies of written scientific reports; failure to comply
    (a) As used in this Code section, the term "written scientific reports" includes, but is not limited to, reports from the Division of Forensic Sciences of the Georgia Bureau of Investigation; an autopsy report by the coroner of a county or by a private pathologist; blood alcohol test results done by a law enforcement agency or a private physician; and similar types of reports that would be used as scientific evidence by the prosecution in its case-in-chief or in rebuttal against the defendant.

    (b) In all criminal trials the defendant shall be entitled to have a complete copy of any written scientific reports in the possession of the prosecution which will be introduced in whole or in part against the defendant by the prosecution in its case-in-chief or in rebuttal. The request for a copy of any written scientific reports shall be made by the defendant in writing at arraignment or within any reasonable time prior to trial. If such written request is not made at arraignment, it shall be within the sound discretion of the trial judge to determine in each case what constitutes a reasonable time prior to trial. If the scientific report is in the possession of or available to the prosecuting attorney, the prosecuting attorney must comply with this Code section at least ten days prior to the trial of the case.

    (c) Failure by the prosecution to furnish the defendant with a copy of any written scientific report, when a proper and timely written demand has been made by the defendant, shall result in such report being excluded and suppressed from evidence in the prosecution's case-in-chief or in rebuttal.


    - Carl
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  5. #5
    BigMistakeFl is offline Senior Member
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    A lawyer, with the "discovery" you collect or without it, will still gladly take your money, up front, and take the case. You are not going to change his mind by presenting him with the videos. Playing the Devil's Advocate here, I would also like to point out that whether you represent yourself or are represented by counsel, you were arrested for DUI and your refusal to be tested implies that you knew you were impaired. Testimony presented to a jury will be yours and all the cops who were working the checkpoint. Picture a jury of little old men and women..... whom do you think they are most likely to believe? Get a lawyer because no one should face a courtroom alone.

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