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DWI and the Discovery Process

If you are facing a DWI charge, it can be hard to know where to turn. You undoubtedly have questions about what happens next, the possible consequences, and whether you'll have to have a trial. The best first step you can make is to hire an experienced DWI attorney to guide you through the process. A skilled, Board Certified DWI lawyer can explain what will happen, discuss your options, and set about building a robust defense in your DWI case.

One of the first steps in building your defense will involve discovering what evidence the prosecution has to use against you. This process is called discovery.

What Is Discovery?

In criminal cases, discovery involves investigating the evidence that the other side intends to present. It helps you and your attorney narrow the issues you need to dispute at trial and prevent surprises at trial. The discovery process can also help the two sides agree to dismiss or reduce charges or enter a plea agreement.

Your attorney will seek information and evidence related to your DWI case to help your defense at trial through formal discovery. However, you may both learn valuable information about the evidence against you in an Administrative License Revocation (ALR) Hearing as well.

Administrative License Revocation Hearing

When the police arrest you, they will typically confiscate your driver's license. This process kicks off when you fail a blood or breath test to measure your Blood Alcohol Concentration (BAC) or if you refuse a BAC test. When the police release you from custody, they'll give you a pink sheet of paper that serves as your driver's license for 40 days. After that time, they will suspend your license until your attorney or the court resolves your DWI case.

Within 15 days after your arrest, you can request an Administrative License Revocation (ALR) Hearing. If you request a hearing, you can drive until your administrative hearing. If you don't, your license will remain suspended until your DWI trial or resolution of your case. While an attorney isn't mandatory for this hearing, we highly recommend that you retain a skilled DWI attorney at this time. An ALR hearing will follow both the rules of evidence and the rules of the court. It can be difficult to effectively advocate for yourself during an ALR hearing without an attorney.

During the hearing, the state must establish three specific elements for the court to uphold your license suspension.

Reasonable Suspicion:

The prosecutor must establish that the police had reasonable suspicion that you committed a traffic offense, like speeding or running a red light, before stopping you. The police must be able to articulate the facts that establish this. The reasonable suspicion standard is fairly low.

Probable Cause:

The prosecutor must establish that the police had probable cause for your DWI arrest, meaning it was more likely than not that you committed the crime. The police officer can arrive at probable cause by observing your behavior during the traffic stop, field sobriety tests, and the results of a portable breath test. These items have to establish that you were "probably" intoxicated to justify the arrest decision to establish probable cause.

Blood Alcohol Concentration Level:

The state must prove that you agreed to a breath or blood BAC test or refused to submit to one and that the BAC result was .08% or higher or .04% or higher if you hold a commercial driver's license.

If the administrative law judge agrees that the prosecutor proves these three things by a "preponderance of the evidence" (50% or more, which is way less than the "beyond a reasonable doubt" standard used in criminal cases), your license can be suspended. If the prosecutor fails to prove one of these three elements, your driver's license will not be suspended.

Aside from recovering your driver's license, an ALR hearing is incredibly useful, because it gives you and your attorney a glimpse of the testimony of the officer and the arguments the prosecutor plans to use at trial. The evidence presented by the prosecutor at the ALR hearing can also help you and your attorney develop formal discovery requests to prepare for trial in your criminal DWI case.

Formal Discovery

Before 1963, defendants had almost no right to the disclosure and inspection of evidence prior to a trial. But the landmark case of Brady v. Maryland changed that across the U.S. In the Brady case, the U.S. Supreme Court expanded due process for defendants in criminal trials. See Brady v. Maryland, 373 U.S. 83 (1963). Under Brady, prosecutors must turn over any evidence that might exonerate a criminal defendant. This rule helps to ensure that criminal trials are fair. Even without a specific discovery request, Texas prosecutors are under a pre-existing obligation to disclose exculpatory information to the defendant.

Defendants may also seek disclosure of evidence from prosecutors. Chapter 39 of the Code of Criminal Procedure governs the discovery process, codified by the Texas legislature in 1963. Legislators developed these rules based on the understanding that the state tasks prosecutors to seek justice, not just guilty verdicts. Therefore, they have a duty not to suppress facts or evidence that might establish a defendant's innocence.

In 2014, the Texas legislature passed the Michael Morton Act, named for an innocent man who was convicted and sentenced to 25 years in prison SOLELY because of heinous prosecutorial misconduct—there was no evidence he murdered his wife. DNA evidence later exonerated Michael Morton. Section 39.14 of the Texas Code of Criminal Procedure now mandates that:

  • After receiving a timely request,
  • The state shall produce and permit inspection of discoverable items,
  • As soon as practicable.

The state must produce:

  • Any offense reports,
  • Any written or recorded statements by the defendant, and
  • Any written or recorded statements by witnesses, including the statements of officers.

There are exceptions to this rule, including the work product of counsel, including investigative products, unless favorable to the defendant. Pro se defendants, that is, those individuals representing themselves, must obtain a court order for these discovery requests, but defense counsel can receive them without an order.

If your defense counsel obtains discovery documents from the state, they must keep them in the case file. The attorney can't provide you with copies, although you may look at the documents in most cases. If you are a pro se defendant not represented by counsel, you can't electronically copy the discovery documents, but you may inspect them.

DWI Defenses

While some discovery requests your attorney sends to the prosecution will be routine, your attorney will also develop discovery requests based on specific defenses your attorney wishes to use at trial. Other discovery requests will be looking for weaknesses in the state's case against you or areas that they might attack at trial. To understand the discovery process, you must first understand the possible defenses in a DWI case.

Your attorney may choose to attack:

  • Whether the police had reasonable suspicion for your initial stop.
  • Whether the police had probable cause to arrest you.
  • The police's determinations on a field sobriety test.
  • The results of any blood or breath BAC test.
  • The conclusion of any expert witnesses, including a drug recognition expert.

Your attorney may also want to challenge the admissibility of some evidence or suppress a witness's testimony. Your attorney may also want to use police reports to challenge police officers' recollections or details they may change in their testimonies. Your attorney can develop all of these defenses through the discovery process.

Types of Discovery Motions

Your defense attorney must direct discovery requests to the prosecutor as the representative of the state. As a matter of practicality, they must be in writing. They can be in the simple form of a letter, but they are often in a motion. Your attorney will typically also file the motion with the court and include a certificate of service.

Discovery requests come in many forms, but the majority of the recognized pre-trial discovery motions your attorney might file in a DWI case include:

  • Request for discovery: A general request for discovery that may list several items, including any witness statements, defendant's statements, police reports, dashboard camera footage, BAC testing reports, and more.
  • Motion for discovery and preservation of specific evidence: A more specific discovery request to ask that prosecutors preserve evidence, like a blood sample.
  • Motion requesting prosecution to file a list of physical evidence: This request asks for a list of all physical evidence relevant to the case.
  • Motion for duplicate photographs: This discovery request asks for copies of the photographs relevant to the case.
  • Specific motion for exculpatory and mitigating evidence: This is a discovery request expressly asking for Brady material.
  • Motion for the discovery of victim impact evidence: This request asks for evidence related to a victim's impact statement or any witnesses related to that. Your attorney might request this if someone was seriously injured or killed in a car accident related to your DWI arrest.
  • Request for notice of state's intention to introduce punishment evidence: This request relates to any evidence the state plans to introduce during the punishment phase.
  • Motion in limine extraneous offenses: This is a motion brought before trial to bar the state from introducing evidence of any prior offenses at trial.
  • Request for notice of state's intention to offer extraneous offenses under Rule 404(b) of the Rules of Evidence: This discovery request asks that the state disclose its intent to introduce evidence of prior offenses at trial.
  • Written objections to admissibility of extraneous offenses and requesting for findings of fact and conclusions of law: This is a motion brought before the court objecting to the prosecution's intent to introduce evidence of the defendant's prior offenses at trial. It also requests that the judge make findings of fact and conclusions of law about the matter before trial.
  • Comprehensive request for notice of state's intention to introduce evidence under rules of evidence and code of criminal procedure: This is a more comprehensive discovery request that can include documentary evidence, expert witnesses, evidence about extraneous offenses, and impeachment evidence.
  • Notice of intent to introduce evidence of extraneous offense: This is the prosecution's notice to the defense that they intend to introduce evidence about extraneous offenses.
  • Motion to list state's witnesses for all persons contacted: This discovery request asks the prosecution to produce the name and addresses of every witness they've contacted or interviewed about the case.
  • Motion for discovery of criminal records of all state's witnesses: This discovery request asks the state for the criminal records, including juvenile records, of all of the state's witnesses or possible witnesses.
  • Motion to produce witness statements: This discovery request asks for statements from any witnesses to the case.
  • Motion to require police to maintain personal notes: This request asks the state to have the police preserve their personal notes related to the case and bring them to trial.
  • Motion to require police to maintain and produce recorded communications: This discovery motion asks the state to have the police preserve and produce any recorded communications related to the case, including audio or video.
  • Application to take deposition of witness and notice thereof: This request asks to depose a witness to the case. Both the defense and the prosecution have the right to depose witnesses before trial, except for a defendant's deposition.
  • Application to take deposition of witness by written interrogatories and notice thereof: Attorneys can also send questions to witnesses to answer in writing, known as written interrogatories.
  • Motion for discovery of defendant's previous trial: This discovery request asks for information and evidence related to any earlier trials against the defendant.
  • Motion requesting disclosure of expert witnesses: Blood alcohol testing and other elements of DWI trials can be highly technical and require knowledge laypeople would not naturally have. In a DWI trial, expert witnesses can help attack chemical tests involved, establish a defense related to metabolic rate or health conditions, the propriety of sobriety tests, and accident reconstruction. This discovery motion asks for disclosure of these witnesses.
  • Motion for voir dire of expert witness and for pre-trial ruling on admissibility of expert testimony: This motion challenges the admissibility of expert testimony and asks for a pre-trial ruling on the matter.
  • Motion for defendant's access to physical evidence: This motion asks for access to the physical evidence that the state can't reproduce electronically or otherwise.

What Will the State Produce?

The actual content of the state's items produced in discovery will vary based on the case and what your attorney requests. After receiving a discovery request, the state will produce:

[A]ny offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.

Tex. Code Crim. Pro. § 39.14 (a). The prosecutor may provide electronic copies to your attorney. The original documents and records cannot leave the prosecutor's office.

Your attorney will want to see evidence to determine whether the police properly stopped, questioned, tested, and arrested you. They will request discovery to look for evidence related to those events.

Reasonable Suspicion for the Stop:

Your attorney will request discovery of any dashcam or bodycam footage, police reports, the 911 recording if there is one, audio dispatch, and anything else of that nature. Your attorney will be looking for the alleged traffic violation that led to the stop. For example, if the police officer's statement says that you were driving over the lines, but the video only shows you coming close to the lines, your attorney may be able to use that evidence obtained in discovery at trial or in a motion before trial to challenge the reasonable suspicion needed for your initial stop.

Probable Cause for the Arrest:

Your attorney will request any video or audio footage of your interactions with police during the initial stop, field sobriety tests, police reports, or other witness statements. Your attorney will be looking for anything that supports your defense or indicates that the police officer's subjective observations were inaccurate. For example, if the police statement says you were slurring your words and couldn't maintain your balance during a field sobriety test, but the video of the stop shows you speaking clearly and acting normally, your attorney can use this evidence to challenge the probable cause needed for your arrest.

Your Blood or Breath BAC Test:

Your attorney will request discovery of the BAC breath or blood test report, the breath test machine, any blood testing devices, the interaction, any video or audio of the blood draw, the report from the blood draw, and the chain of custody.

Your attorney will be looking for anything improper, such as drawing the blood incorrectly, possible contamination issues related to blood samples, mishandling or mislabeling of samples, improper storage of blood samples, the intermingling of samples, fermentation of samples, mixing up samples, and paperwork errors. Because lab errors can happen, your attorney will also request discovery for information about the laboratory machines, their calibration, inspection and maintenance schedules, and records.

For breath tests, your attorney will request discovery related to the breathalyzer used for your test, including calibration, maintenance, how the police administered the test, and whether the police officer was trained and certified for the specific machine used. Your attorney will be looking for improper maintenance, whether the machine's external standard check was in an acceptable range, and errors in administering the test. For example, a breathalyzer can give inaccurate results if the police officer doesn't wait 15 minutes to ensure there's no residual alcohol in the mouth.

At least 30 days before trial, both the prosecutor and the defendant can request the name and address of each person the disclosing party may use at trial to present evidence. Each party must respond at least 20 days before trial.

A Skilled, Board Certified DWI Attorney Can Help

If you are facing a DWI arrest, it's important to remember that you are innocent until proven guilty. Even if your BAC was over the legal limit on the test the police administered, a DWI arrest does not mean that a court will convict you. Through the process of discovery and telling your story, a skilled DWI attorney can mount an aggressive defense on your behalf.

Developing an effective DWI defense is never simple. Your attorney must have technical knowledge about breath and blood alcohol tests, how labs and police officers perform them, and the science behind the tests. A good DWI attorney should also have extensive experience with complex DWI cases so that they won't be taken by surprise during the process of discovery, in pre-trial motions, or at trial. You want an effective and experienced litigator who can handle anything that happens in an ALR hearing or your DWI trial.

Doug Murphy Is a Board Certified DWI Attorney

Attorney Doug Murphy is one of only two attorneys in Texas who are Board Certified in both Criminal Defense by the Texas Board of Legal Specialization and DWI Defense by the National College for DUI Defense, accredited by the American Bar Association and the Texas Board of Legal Specialization.

Attorneys who are Board Certified in DWI Defense undergo a rigorous application and testing process to demonstrate that they have extensive education in DWI defense and the science and technical issues related to DWI testing. Applicants must also demonstrate a wide range of DWI litigation experience and provide recommendations from judges and attorneys with whom they've worked closely. When you hire a Board Certified DWI attorney, you know that you're hiring someone with the legal chops and technical know-how to get the best possible outcome in your case.

Contact Our Harris County DWI Defense Lawyer

US News & World Report has named Doug the Lawyer of the Year for Houston DWI Defense. The Harris County Criminal Lawyers Association awarded him the Sharon Levine Unsung Hero Award for his work with others to expose Houston's BAC testing vans' problems, leading to their decommissioning. He's also active in the Houston legal community, serving as past president of the Harris County Criminal Lawyers Association.

Doug brings more than 20 years of courtroom experience to the table, and he understands the importance of protecting your reputation, freedom, and livelihood with a zealous and diligent defense. Contact him today online or at 713-229-8333.

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