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The term discovery simply means that a defendant in a DUI case has the right to “discover” what evidence the prosecuting official has against them. This may not be as easy as it seems. Many prosecutors and police agencies will make it difficult to obtain this information by using FOIA requests and charging excessive fees. If you retain an attorney to represent you in the process, he or she can file a discovery request and demand that everything be turned over to their office. Failure to disclose everything could result in key pieces of evidence being excluded by the trial judge either at a preliminary motion hearing or at trial.
The Police Report is Not Always Accurate
Almost all drunk driving cases in Michigan will generate a police report. This is simply a written statement prepared by the police agency documenting the events of that night. If you think that the police report is the end all be all of evidence…think again! Police officers are human and may not perfectly remember all the events of a night unless they are being taken directly from their review of video. In addition, human nature also dictates that some people procrastinate and take days or even weeks to complete their paperwork. That is why it was so important for you to document everything that you can remember from that night so that you can refute claims that may be false in the police report. The police report should also contain documentation of all your Standard Field Sobriety Tests (SFSTs) and any breath and blood test reports.
Keep and Preserve Your Datamaster Ticket
Many times you will be given a pink sheet of paper after your Datamaster test at the station. It is imperative that you keep this paper as it serves an original to refute any changes in the document. Think this does not happen? It does and we have secured dismissals based on doctoring a Datamaster ticket to show a 15 minute observation period when the original clearly shows less than 15 minutes had elapsed. The officer may have actually meant to write the correct time on the ticket, but it certainly does not look good when only the ticket in the court file shows the time written in.
Witnesses May Need to Be Interviewed
Another area of discovery may involve getting the names of witnesses to the driving that night. Many times prosecutors will try and black out this information claiming privacy concerns and FOIA. The obvious problem with this is that you as the defendant have the right to investigate your case and confront those who might testify against you. Therefore it is very important to get a FULL police report including any private notes that may have been made by the officer at the time or on the scene. We have seen too many times an officer bring these notes to trial and defense counsel was not given an opportunity to review any of it. This is a recipe for disaster and for a mistrial.
Video Can Be a Blessing or a Curse
As was mentioned above, the police report may reflect that there was a motor vehicle recording of the entire event through their on-board camera. This is critical to request this evidence immediately as police agencies have policies on destroying the tapes and recording over them. We have also been in a trial where the officer referenced his review of a videotape but it was never turned over to the defense. Defense counsel inquired as to where this video was and he stated that he had decided it was not important and taped over it. Needless to say the jury took 15 minutes to come back with a not guilty verdict despite some truly damning evidence against our client. The video in your case can show much more than simply you being intoxicated and failing sobriety tests. There are typically time stamps and it can provide insight into whether or not the initial traffic stop was legal and whether or not there was a 15 minute waiting period. After discovery is completed, an attorney will conduct their investigation into the case and determine if there are potential defenses to your charge and prepare to gain leverage on the prosecutor for the next stage of the timeline…the pretrial conference.