By Paul Burglin and Barry Simons

California Drunk Driving Law

Excerpted from California Drunk Driving Law

California DUI lawyers can easily adapt this list of 27 items.

The following discovery request is adaptable to most drunk driving cases by filling in required information, deleting inappropriate items and renumbering.

Frequently the prosecution will argue that whatever method for discovery the defendant has selected (motion and order versus subpoena duces tecum), the other method is the only one appropriate. But the defendant is entitled to choose which method to use (see §5:82).

FORM 5-3: INFORMAL REQUEST FOR DISCOVERY FROM PROSECUTION

Office of the District Attorney                    Date: ______________

_______________________________

_______________________________

_______________________________

Re:  People v.   _____________
Court:  _____________
Dkt#:   _____________

INFORMAL REQUEST FOR DISCOVERY

The following paragraph provides discovery from the defense prior to requesting discovery from the prosecution. There is some authority in Izazaga’s footnote 14 for the argument that you don’t have to make any disclosures until you receive discovery. In any event, you can’t get any sanction under Pen. C. §1054.7 until you have provided discovery. So take your pick—disclose either before or after, but always before sanctions can be requested.

Pursuant to Pen. C. §1054.3, the defendant hereby states that the names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the trial, and any real evidence which the defendant intends to offer in evidence at the trial are as follows:

List defense witnesses and other information, or note that it is included with this letter.

In accordance with the provisions of Pen. C. §§1054 et seq., the defendant requests disclosure and production of the materials and information listed below, within fifteen days of the date of delivery of this disclosure and request. (No further request for this information, and no pretrial motion for sanctions, are required in order for the defendant to be entitled to exclusion-of-evidence sanctions at trial for the failure to provide this requested discovery (People v. Jackson (1993) 15 CA4th 1197). Withhold at your risk.)

Defendant already has the following items:

[(1)      4 page police report #86-99999]

[(2)      Intoxilyzer printout, #99999]

[(3)      Citation #999999]

[(4)      etc.]

Please make available to the defense attorney or his agent for examination, inspection, and copying, the following items, which are in the actual or constructive possession of the District Attorney of this county or his deputies, investigators, employees, or agents.

Defendant asks that this request be treated as a continuing request through the completion of trial. (See Pen. C. §1054.7.)

(1) STATEMENTS OF DEFENDANT: All statements or utterances by a defendant, oral or written, however recorded or preserved, whether or not signed or acknowledged by the defendant. (Pen. C. §1054.1(b); Joe Z. v. SuperiorCourt ofLos Angeles County (1970) 3 C3d 797; Vance v. SuperiorCourt ofSan Diego County(1958) 51 C2d 92; Powell v. Superior Court of Los Angeles (1957) 48 C2d 704.)

Insert the following check-off text after each requested discovery item. The “Compliance Order” part is for use later, if this document is attached to a Motion for Discovery Compliance (see Form 5-4: Motion for Discovery Compliance).

Anything not previously received?

Provided:       __________

Will Provide:   __________

Do Not Have:  __________

Compliance Order (if needed):

Granted:                     __________

Granted as modified:    __________

Denied:                       __________

(2) NAMES, ADDRESSES AND PHONE NUMBERS OF PROSECUTION WITNESSES: The names and addresses and phone numbers of all witnesses who may be called to testify against the defendant at the trial. (Pen. C. §§841.5 and §1054.1(a); Norton v. Superior Court (1959) 173 CA2d 133.)

The prosecution, and not the defense, is able to obtain this information from the California Employment Development Department. (Unemp. Ins. C. §§322 and 1095.)

(3) STATEMENTS OF PROSECUTION WITNESSES: All statements of said testifying witnesses relating to the case against the defendant, however recorded or preserved, whether oral or written, and whether or not signed or acknowledged by them. (1054.1(f); Funk v. Superior Court (1959) 52 C2d 423.)

Regarding the portion of this request which relates to oral statements of prosecution witnesses, note that the California Department of Justice publishes The Peace Officer’s Legal Sourcebook (Sacramento, CA: California Department of Justice, updated six times per year). The March 1998 edition says, in its directions to cops about report writing at page 9.10, “If you have an opinion or theory about the case, always tell the prosecutor in person, so that the opinion will not have to be disclosed to the defense.” By way of contrast, with regard to statements of the defendant it says, at page 10.4, “In addition, any oral statements made by the suspect (even if not recorded or written down) should be reported to the prosecutor for disclosure to the defense. (Campbell (1972) 27 Cal. App. 3d 849.)” [You can order the Sourcebook by calling the Department of General Services, Publications Section, at (see Appendix A).]

Pen. C. §1054.1(f) requires that the prosecution disclose, among other things, any report of a statement of a witness. This may require disclosure of a cop’s oral statement to the prosecutor concerning the case. (See §5:45 for more information.) But in any event, a concealed statement concerning the cop’s low opinion of the case is necessarily exculpatory. On that basis then, Pen. C. §1054.1(e) and the U.S. and CaliforniaConstitutions require its disclosure (see item 12 below and §5:53).

(4) NAMES, ADDRESSES AND PHONE OF FAVORABLE PERCIPIENT WITNESSES: The names and addresses and phone numbers of all persons who were percipient witnesses to the offense, including those who may have personal knowledge of any facts relevant to the case and favorable to the defense, whether or not they are to be called to testify against the defendant at trial or preliminary hearing. [Pen. C. §1054.1(e); People v. Jackson (1991) 235 CA3d 1670; Norton v. Superior Court (1959) 173 CA2d 133; Brady v. Maryland (1963) 373 U.S.83; U.S. v. Bagley (1985) 473 U.S. 667; Renzi v. Virginia 794 F2d 155 (4th Cir 1986); People v. Morris (1988) 46 C3d 1, 29-30;Izazaga v. Superior Court (1991) 54 C3d 356.]

(5) STATEMENTS OF FAVORABLE PERCIPIENT WITNESSES: All statements of witnesses, identified in the previous item, and relating to the case against the defendant, however recorded or preserved, whether oral or written and whether or not signed or acknowledged by them. [Pen. C. §1054.1(e); People v. Jackson (1991) 235 CA3d 1670;Vetter v. Superior Court of Sacramento County (1961) 189 CA2d 132; Brady v. Maryland (1963) 373 U.S. 83; U.S. v. Bagley (1985) 473 U.S. 667; Renzi v. Virginia 794 F2d 155 (4th Cir 1986); People v. Morris (1988) 46 C3d 1, 29-30;Izazaga v. Superior Court (1991) 54 C3d 356.]

(6) PHYSICAL EVIDENCE; BLOOD AND URINE SAMPLES: All physical evidence obtained in the investigation of the case against defendant, including but not limited to blood, urine or breath samples. [Pen. C. §1054.1(c); Schindler v. Superior Court of Madera County (1958) 161 CA2d 513; Norton v. Superior Court (1959) 173 CA2d 133; People v. Hitch (1974) 12 C3d 641; Prince v. Superior Court (1992) 8 CA4th 1176.]

Note that Title 17, Cal. C. of Regs., §1219.1(g)(2) (Blood) and §1219.2(c)(1) (Urine) state:

Whenever a sample is requested by the defendant for analysis and a sufficient sample remains, the forensic alcohol laboratory or law enforcement agency in possession of the original sample shall continue such possession, but shall provide the defendant with a portion of the remaining sample in a clean container together with a copy or transcript of the identifying information carried on the original sample container.

Always request a retest blood sample and have it retested. But where the sample tested by the prosecution is urine you may want to forego a retest, particularly if it’s a high result. Your attitude then is that urine is useless as evidence, so a retest doesn’t make sense either.

About 1 in 10 blood retests indicate an erroneous result, in that the retest differs from the prosecution’s result by more than 5%. An excessively different retest result means either the retest or the original test is no good.

You may want to test for preservative too, especially if your alcohol test shows a problem. Or you may want to first test for preservative only. Then only test for alcohol if you find enough preservative. That way your expert can testify to a low preservative level without risking the possibility that he will also confirm the prosecution’s BAC result.

You should not need a court order to obtain a retest sample. Sometimes a simple letter to the lab will suffice. Use Form 5-6: Letter Requesting Retest Sample.

Note that in Prince v. Superior Court (1992) 8 CA4th 1176, the court held it would violate the right to counsel for the court to order the defendant’s attorney to reveal the results of an independent test of a semen sample.

Booking photos may also be provided in compliance with this request for PHYSICAL EVIDENCE, but it is best not to specifically ask for them, since that might give the prosecutor the idea to use them. See §9:50.5 for trial objections to booking photos.

(7) AUDIO/VISUAL EVIDENCE ABOUT DEFENDANT: All audio recordings, photographs, motion pictures or video tapes taken of the defendant at or near the time of [his/her] arrest in this case. (Pen. C. §1054.1, subdivisions (c) and (f).)

Note that many police departments run 24-hour videotape recordings of the premises for potential defense in personal injury suits.

(8) AUDIO/VISUAL EVIDENCE OF CRIME: Examination of all audio recordings, photographs, transparencies, slides, diagrams, motion pictures and video tapes of the scene of the alleged offense or other locations that may be referred to. (Pen. C. §1054.1, subdivisions (c) and (f).)

(9) DEFENDANT’S CRIMINAL RECORD: Any record of criminal arrests or convictions of the defendant. (Pen. C. §1054.1, subdivisions (c) and (d).)

See §5:20 for information on obtaining this information directly from DOJ, the CHP and local police.

(10)     WITNESS CRIMINAL RECORDS; IMPEACHMENT EVIDENCE: All records of any felony or misdemeanor convictions, and of the probationary status, whether felony or misdemeanor, and any other information relevant to impeachment of any witness to be called to testify against the defendant. [Pen. C. §1054.1(d); Cal. Const., Art. I, §28(d); People v. Lang (1989) 49 C3d 991; People v. Harris (1989) 47 C3d 1047; Davis v. Alaska (1974) 415 U.S. 308; U.S. v. Bagley (1985) 473 U.S. 667; Hill v. Superior Court of Los Angeles County (1974) 10 C3d 812; In re Ferguson (1971) 5 C3d 525; Millaud v. Superior Court (1986) 182 CA3d 471; Brady v. Maryland (1963) 373 U.S. 83; Renzi v. Virginia 794 F2d 155 (4th Cir 1986); People v. Morris (1988) 46 C3d 1, 29-30; Izazaga v. Superior Court (1991) 54 C3d 356; People v. Santos (1994) 30 CA4th 169.]

See §5:20 for information on obtaining this information directly from DOJ, the CHP and local police.

Even though Pen. C. §1054.1(d) calls only for the disclosure of felony convictions, the Supreme Court has held that Cal.Const., Art. I, §28(d) permits the impeachment of witnesses with misdemeanor convictions (Harris, supra). These convictions are therefore discoverable (People v. Santos (1994) 30 CA4th 169).

The authorities cited with this item also include the “favorable” evidence authorities. Such information would certainly be favorable to the defendant.

Regarding the juvenile “conviction” records, see the discussion of Davis v. Alaska in §5:52.5.

(11)     POLICE REPORTS AND DOCUMENTS:

(a) All notes, reports or supplemental reports or notes of police officers and investigators concerning the offense charged.

(b) Any and all documents or publications of any sort containing policies, protocols or procedures on the detection, apprehension, arrest or chemical testing of persons suspected of driving under the influence of intoxicants.

(c) Any documents or publications of any sort in any way related to the planning, conduct or results of any sobriety checkpoint operated in connection with this case.

(Pen. C. §1054.1, subdivisions (a), (b), (c), (e) and (f); People v. Campbell (1972) 27 CA3d 849.)

(12)     FAVORABLE OR EXCULPATORY EVIDENCE: Any evidence in the form of information, documents and other materials favorable to the defendant in the possession of the District Attorney, or of any police department involved in the investigation of the case against defendant, or of any agency or person and available to the prosecution through the exercise of due diligence. It is requested that you review all law enforcement and other government files in any way related to this case for the purpose discovering and disclosing such evidence and information. [Pen. C. §1054.1(e); In re Brown (1998) 17 C4th 873; Kyles v. Whitley (1995) 514 U.S. 419; Brady v. Maryland (1963) 373 U.S. 83; U.S. v. Bagley (1985) 473 U.S. 667; Renzi v. Virginia 794 F2d 155 (4th Cir 1986); People v. Morris (1988) 46 C3d 1, 29-30; Izazaga v. Superior Court (1991) 54 C3d 356; People v. Jackson (1991) 235 CA3d 1670.]

See §5:53.4 for more information on “favorable material.”

All of the remaining items are optional.

In addition, all the remaining items are discoverable as either favorable or exculpatory evidence (Pen. C. §1054.1(e); Brady v. Maryland (1963) 373 U.S. 83; U.S. v. Bagley (1985) 473 U.S. 667; Renzi v. Virginia 794 F2d 155 (4th Cir 1986); People v. Morris (1988) 46 C3d 1, 29-30; Izazaga v. Superior Court (1991) 54 C3d 356), or are discoverable under separate statutory and case authority cited therein (Pen. C. §1054(e)—”other express statutory provisions”).

(13)     I.D. PHOTOS AND EVIDENCE: Examination of all photographs, video tapes, motion pictures, composites or likenesses shown to witnesses and prospective witnesses in this case for the purpose of establishing the identity of suspects in the crime charged against the defendant, and all reports concerning the display of such. (Pen. C. §1054.1, subdivisions (c), (e) and (f); Norton v. Superior Court of San Diego County (1959) 173 CA2d 133.)

(14)     ACCIDENTS AT SAME LOCATION: All reports and records of any accidents involving motor vehicles which occurred at [location of accident in present case] (Pen. C. §1054.1(e); State of California ex rel. Dep’t of Transportation v. Superior Court (1985) 37 C3d 847; People v. Ansbro (1984) 153 CA3d 273).

Hall held that such information could be subpoenaed from the state Department of Transportation. Ansbro held that the information is relevant to the cause of an accident in a drunk driving with injury case. See also Department of Transportation v. Superior Court (1996) 47 CA4th 852—Discovery in a civil case of previous accident reports.

For more information, see the Caltrans Traffic Manual (Sacramento, CA: California Department of Transportation, 8/96), “Chapter 3—Accident and Roadway Records.” The Caltrans Traffic Manual is available from Caltrans (see Appendix A).

(15)     RADAR SPEED TRAP TRAFFIC SURVEYS: All documents relating to any engineering and traffic survey concerning any use of radar in connection with speed law enforcement in this case. (Pen. C. §1054.1(e); CVC §§627, and 40800-40805.)

(16)     OFFICER’S MODUS OPERANDI (DITTO EFFECT) EVIDENCE: All police reports of offenses for a period beginning 10 days before, and ending 10 days after, the alleged offense date in this case and the names, addresses and phone numbers of alleged offenders therein, and any witnesses therein, if not included in those reports, in cases wherein the arresting officer in this case, participated in the arrest of a person accused of drunk driving (Pen. C. §1054.1(e); CVC §§23152 and 23153; City of Alhambra v. Superior Court (1988) 205 CA3d 1118;People v. Gill (1997) 60 CA4th 743—Police officer’s habit or custom evidence is discoverable).

The requested discovery is relevant to the arresting officer’s credibility as to the reason for the detention and his opinion on the defendant’s state of sobriety. Sometimes police who make a lot of drunk driving arrests write their reports almost identically with little regard for the specifics of individual cases. So it’s a sort of “modus operandi” situation.

(17)     INFORMANTS: The identity and whereabouts of any material informants. (Pen. C. §1054.1(e); Renzi v. Virginia 794 F2d 155 (4th Cir 1986).)

(18)     VICTIM CONVICTIONS: All records of any felony convictions of the alleged victim [name] of the alleged offense. (Pen. C. §1054.1(e);Hill v. Superior Court of Los Angeles County (1974) 10 C3d 812;In re Ferguson (1971) 5 C3d 525.)

This item is for use in assault cases.

See §5:20 for information on obtaining this information directly from DOJ, the CHP and local police.

(19)     VICTIM ARRESTS: All records concerning arrest of the alleged victim(s) [name], complaints filed against them, or known incidents involving them, for specific acts of aggression, together with the names, addresses and phone numbers of witnesses to those acts. (Pen. C. §1054.1(e); Engstrom v. Superior Court (1971) 20 CA3d 240.)

This item is for use in assault cases.

See §5:20 for information on obtaining this information directly from DOJ, the CHP and local police.

(20)     PITCHESS INFORMATION: The name and mailing addresses of any employer (except the City of [name of employer at time of arrest]) for which Officer [name] may have worked as peace or law enforcement officer during the five-year period immediately preceding the date of the arrest of the defendant herein (Pen. C. §§1054(e) and 1054.1(e); Albritton v. Superior Court (1990) 225 CA3d 961; People v. Memro (1985) 38 C.3d 658; Evid. C. §1043; Pitchess v. Superior Court of Los Angeles (1974) 11 C.3d 531; Hill v. Superior Court of Los Angeles County (1974) 10 C.3d 812, 816; Huntington Beach Police Officers Assn’ v. United States (In re Grand Jury Subpoena) 75 F.3d 446 (9th Cir 1996)—Cop’s statements in personnel files not protected by 5th amendment).

Get this information prior to doing a Pitchess motion. The CHP will provide it by phone from their Legal Coordination Section in Sacramento (current work address—see Appendix A) or the Roster Unit (past work address—see Appendix A).

Some police departments claim that this information is itself only obtainable by way of a Pitchess motion (see Pen. C. §832.7). If that’s the case, serve a motion on the city or county, at least 15 days (20 if mailed) in advance (C.C.P. §1005).

See §5:100 for more information on Pitchess motions.

(21)     RADIO DISPATCH TAPES: An unedited copy of all dispatch tape of the police department(s) that was involved in this case, for the time period from one-half hour before any event mentioned in the police report to one hour after any event mentioned in the report. (Pen. C. §1054.1, subdivisions (c), (e) and (f).)

See §6:25 for more about radio tapes.

Gov. C. §26202.6 requires that recordings must be preserved if they are evidence in any claim filed or pending litigation until the litigation is resolved. In Nelson v. Superior Court (2001) 89 CA4th 565, the opinion held that this includes the mere filing of a government claim under Gov. C. §911.2. Although filing a government claim may interfere with plea negotiations, it is one way to assure that recordings are preserved.

(22)     PRIOR CONVICTION RECORDS: Records of the proceedings for any conviction alleged herein as a prior conviction sentence enhancement, including:

(a) Docket sheet(s) or waiver of rights form(s). (Pen. C. §1054.1, subdivisions (c) and (f).)

(b) Transcripts (Pen. C. §1054.1, subdivisions (c) and (f); People v. Vallejo (1991) 1 CA4th 760—Prior conviction transcript discoverable from the prosecution).

(c) California Department of Justice computerized conviction records stored in connection with the California Criminal Convictions Record Act. (Pen. C. §1054.1, subdivisions (c) and (f).)

Generally, you don’t want to ask for discovery of prior conviction records because ambush at trial is the best tactic you have in beating the prosecution on them (see §9:94.4). But in 1996 the legislature enacted the Criminal Convictions Record Act (C.C.R.A.) (Chap. 642 (AB 1387)) for just that reason (see §9:95.9). When the prosecutor in your local courthouse learns to use the C.C.R.A. to be ready for trials on prior convictions, you’ll find that surprise is no longer effective, and you’ll want pretrial discovery of the evidence that will be used to prove the enhancement allegations.

(23)     CHEMICAL TEST EVIDENCE: As described in detail in the attached EXHIBIT “A”—All laboratory, technicians’ and other reports concerning the testing and examination of physical evidence, including, but not limited to, results of tests, calibration and maintenance records of machines used, calibration solutions, and method of analysis. [Pen. C. §§1054(e) and 1054.1, subdivisions (c) and (f); Walker v. Superior Court of Mendocino County (1957) 155 CA2d 134; CVC §23158(c)—”Upon the request of the person tested, full information concerning the test taken at the direction of the peace officer shall be made available to the person or the person’s attorney.”]

Exhibit “A” may be found in §5:73.1, Form 5-5.

Note the quote from CVC §23158. This statute is the sort of “other express statutory provisions” referred to in Pen. C. §1054(e). See Albritton v. Superior Court (1990) 225 CA3d 961.

To save confusion, this item, when used, should usually be the last one in the motion because it points to numerous additional items of chemical test discovery which are on a separate Exhibit “A.” They are separately listed on an exhibit so that they can be easily varied from case to case on the basis of which test was taken.

See §5:92.2 regarding discovery of records stored electronically.

See §5:72 regarding discovery of copyrighted documents.

PRACTICE TIP:

You may wish to use the following two items as an alternatives to the item above. The chemical test discovery method in these alternative items eliminates the use of all the other chemical test discovery methods and puts the burden on the prosecution to provide you with anything they intend to use or refer to at trial. After all, the prosecution has the burden of proving that everything was working properly. If the only maintenance and calibration records provided to you are from a month before and after, then the prosecution should be limited to proving that the breath machine, or other devices, were working properly only for one month before and after. This alternative method also keeps the prosecution’s attention away from the case prior to trial, and gives them less of a pre-trial time investment in the case. That’s conducive to obtaining better plea bargain offers at the time of trial.

(24)     CHEMICAL TEST EVIDENCE: All documents and other things physically existing which the prosecution may seek to introduce into evidence, or refer to, or rely on, at trial. This includes, but is not limited to: (1) maintenance records; (2) calibration records; (3) quality control records; (4) results of tests on the defendant; (5) calibration solutions; (6) methods of analysis; (7) data and writings related to all studies, investigations and research done; and, (8) laboratory, technicians’ and other reports, concerning the testing and examination of physical evidence herein. [Pen. C. §§1054(e) and 1054.1, subdivisions (c) and (f); Walker v. Superior Court (1957) 155 CA2d 134; CVC §23158(c)—”Upon the request of the person tested, full information concerning the test taken at the direction of the peace officer shall be made available to the person or the person’s attorney.”]

NOTE: The defense will assert a best evidence objection to any reference to the contents of any writing which is not present in court at the time and made available to the defense then. Furthermore, the defense will object, as a discovery sanction, to the introduction in evidence or other use of anything, including writings, that have not been provided in advance in accordance with this discovery request.

See §5:92.2 regarding discovery of records stored electronically.

See §5:72 regarding discovery of copyrighted documents.

(25)     DOCUMENTS THAT OPINION RELIES ON: All documents, whether the prosecution intends to offer them in evidence or not, which the prosecution’s expert witness(es) relied upon or will rely upon in forming the expert opinions that the prosecution intends to offer in evidence at trial. (Hines v. Superior Court of Los Angeles County (1993) 20 CA4th 1818.)

In Hines, the opinion stated that although all discovery from the defense is controlled by statute, the defendant’s right to additional discovery, including documents relied upon to reach an opinion, is subject to the broader requirements of the U.S. Constitution, which do require disclosure. For more information see the discussion of Hines in §5:45.5.

See §5:92.2 regarding discovery of records stored electronically.

See §5:72 regarding discovery of copyrighted documents.

(26)     PRIVILEGED MATTER NOT OTHERWISE DISCLOSED: With regard to any item in this demand for discovery which has not been provided on the grounds that to do so would violate a privilege, provide sufficient information with which to describe the nature and substance of the item, the specific privilege claimed, and the identity of the holder of the privilege (People v. Hammon (1997) 15 C4th 1117).

(27)     VICTIM OR WITNESS VEHICLE “BLACK BOX”: Any “black box” or other device which may contain automatically recorded information about the vehicle driven by [the defendant or] any victim or witness.

This item description is intentionally vague, since you don’t want to unnecessarily educate the opposition to the fact that many vehicles now have built in “black boxes” to record crash data, much like those in airplanes. Remember, your client’s vehicle may have had one too, and this may be the only way to obtain it if the police are holding the vehicle. (See, Bowden, Michael M., “Black Box Will Revolutionize Auto Litigation,” Lawyers Weekly USA, Vol. 99, August 9, 1999 (Boston, MA: Lawyers Weekly USA) p. B1.)


Paul Burglin has 23 years of trial experience, an av Martindale rating, is board certified by the National College of DUI Defense, and is a former director of California DUI Lawyers Association. Barry Simons has 30 years of DUI defense experience, is a founding member of the National College of DUI Defense, and is a frequent lecturer at DUI seminars throughout the country.  They are the authors of California Drunk Driving Law, from which this article is excerpted.