This article lists items your DUI defense lawyer may want to consider obtaining either by independent investigation or by asking the prosecutor for them through formal discovery. These are suggestions only. Your DUI lawyer will have to determine how important each item is for your particular case. There are few, if any, cases in which all of the listed items are necessary.
In deciding what items to gather and how to get them, your DUI attorney will keep in mind that the process of obtaining the material may result in the prosecution garnering the information too. This is especially true if your DUI attorney uses the formal discovery process. Requesting large amounts of discovery may have the adverse effect of causing the prosecution to give your case too much attention.
The following are some items to consider for discovery in a breath case:
The following are some items to consider for discovery in a blood or urine case:
If your case comes to trial, it will be important to let jurors know that your sample was analyzed with a largely automated process. Jurors tend to think that the state gave the defendant’s sample individual attention by having a scientist look at the sample through a microscope. Your DUI attorney will need to disabuse them of this notion early. Often, the analyst conducting the analysis is not even in the room at the time of the run. The following sample cross-examination exposes this point:
DUI defense attorney: You did the analysis of the defendant’s blood?
Analyst: Yes, I did it myself.
DUI defense attorney: When you say you did the analysis yourself, you mean that you operated a machine that did the analysis?
Analyst: Yes, I used a gas chromatograph.
DUI defense attorney: Now, when you used this machine did you only analyze the defendant’s blood, or did you analyze other samples during the run?
Analyst: I am sure there were some others.
The witness is unnecessarily trying to minimize the extent of the run. Witnesses get into problems by shading the truth. The witness has learned that the witness can regularly get away with this behavior, because the attorney is frequently not as knowledgeable about the facts as the witness is.
DUI defense attorney: Not just “some others,” weren’t there 40 other “some others” tested?
Analyst: I think so.
DUI defense attorney: And this takes a couple of hours?
Analyst: About that.
DUI defense attorney: And when you yourself are doing these, you are not always in the room the whole time the analysis is being performed are you?
Analyst: Well, not always the whole time, but it is automated.
DUI defense attorney: So your answer is, you are not necessarily even in the room when the blood analysis is being done?
Analyst: Technically, that’s correct.
The following are some items to consider for discovery in all cases (blood, breath, urine, or refusal):