Discovery In a Fort Worth DWI Case
Discovery is very important in a DWI or criminal case. Clients need to know whether or not their attorneys are well-versed in the process, and in all the different ways that discovery can be used in a case. One of the most important and first steps in a DWI case, that surprisingly many attorneys who claim that they are good with DWI cases don’t even do or refuse to do, is the administrative license revocation hearing process. From the date that a person is arrested for a DWI, they have the possibility of their license being suspended for a minimum of 90 days up to 180 days, or even a year or two in certain situations. However, they have a right to a hearing regarding whether or not their license is suspended, as long as that hearing is demanded within 15 days of the arrest.
The suspension will go into effect 40 days from the date of the arrest unless the hearing is demanded. For every client who hires us in time, we demand a hearing regarding this possible suspension of his or her license. Our Fort Worth DWI lawyers demand it by two different methods so that we have two ways of showing that it was timely demanded. By demanding the hearing, this keeps the suspension from going into effect so our client can continue driving without any restriction. Their license is not suspended at that point. It is very important that we demand discovery from the Department of Public Safety attorney. They have to provide us all the information they have, and all the information that they will use at the hearing.
Discovery Process in Fort Worth
We are able to find out very quickly a great deal of information about their DWI case. This includes the report of the arresting officer, breath test records, blood test records, if those were requested, and other things that we need to know in order to defend them both for the DWI charge and also the administrative license revocation hearing. We are able to win many of those hearings so that our clients don’t have to go through a suspension of their license, and they don’t have to pay the $125 reinstatement fee. Another very important thing about this administrative hearing is that we can subpoena the arresting officer to that hearing, and then we can cross-examine that arresting officer on all the issues in the case. That might work to our client’s advantage, and may cause the case to be thrown out, or allow us to win the case. Officers make many mistakes, and they violate the Constitution and proper procedure many times. Most officers don’t even know a lot of these mistakes that they make, and so they will candidly admit these mistakes at this hearing.
At this hearing, they are not coached by a prosecutor prior to the hearing. They show up, and many times they don’t even review the report beforehand. We can cross-examine them, and pin them down on all these issues that can work to our client’s advantage. That’s important because then later, at the DWI trial, that judge has the power to throw the case out, rule that the police acted illegally, or that specific pieces of evidence can’t be used against our client. That judge can allow us to win the case without even having to get to a jury. At that trial, the prosecutor will meet with the officer beforehand. The smart prosecutor sees what those issues are that might help our client, and may coach the officer by saying, “Well, Officer Smith, are you sure before you had Mr. Jones get out of the car, that you didn’t have some additional facts to support the suspicion of intoxication.”
The officer may realize that he or she needs to start embellishing or adding things, or the officer may start remembering things that typically happen in a DWI case, but did not happen in our client’s case, such as slurred speech. Some of these officers may do another 20 to 40 of these arrests before this case comes up for trial, and their memory may start blending or blurring cases together. They may remember things that typically happen or happened in other cases, and think that that happened in our client’s case. If they do that, if their memory blends or blurs, or they testify about things from other cases, or they add, embellish, or change their testimony, we can impeach the officer. That is, we can show the officer testified differently at the previous hearing, because we’ll have a written transcript of their sworn testimony, and that can go a long way to helping us win the case.
In fact, that’s the way we win many of these cases. Surprisingly, many attorneys who claim that they are good with DWI cases won’t even handle the administrative hearing, or will tell the client that it’s a waste of time and that it can’t be won. Any attorney who doesn’t handle this administrative hearing, and use this hearing as a chance for discovery and cross-examination of the arresting officer, is not a good attorney for a DWI case. This is because they don’t know one of the best ways to win these cases, and they’re not giving their client complete representation. Clients should be aware of this, and should only hire a good, experienced firm who also includes handling of the administrative hearing. That’s the first thing that needs to be done in DWI and that’s why the administrative hearing is included in our representation, at no additional cost, for all of our clients.
Benefit of a Skilled DUI Lawyer
As soon as we’re hired, we let the prosecutor know that we have been retained to represent the client. We let the court know, and we frequently are able to get the client excused from the first court date. At that time, we demand discovery from the District Attorney, county attorney, or the prosecuting authority, and then they have to allow us access, usually electronically, to all of their materials. That includes all the police reports, all the records and videos. There is almost always a video from the dash-cam or the patrol vehicle, because anytime an officer turns on his or her overhead lights to pull somebody over or investigate something that automatically causes the recording system to start recording the event, including the previous 30 seconds before the lights are turned on. We always get that video.
Then we determine if there is any other record that we need to request or subpoena. This could be a body-cam video, or records of communication between the officer and dispatch that we need to request. There may be 911 calls that we need to get recordings of, or copies of the recordings. We determine anything else that we need to obtain, and we demand that we get those. This way, we can have plenty of time before trial or court to review all those matters and thoroughly investigate the case. There may be additional matters that we need to request or subpoena, such as breath test records. In a breath test case, many attorneys don’t know that they can subpoena all the records regarding the breath test machine. This includes the maintenance and repair records of that machine, and the subject test records of that machine, for 30 days prior and after our client’s breath test. This way, we can see if there are any problems with the machine.
We can see if the machine’s been having technical or maintenance problems. We can see if there have been issues with the machine not properly reading breath tests, or reading out of tolerance. We can even sometimes determine if there was somebody who blew into that machine shortly before our client did, who had a very high alcohol concentration. It means that maybe there is still some residual alcohol from that previous test, and we can use that to our client’s benefit. Surprisingly, the machine is not cleaned between tests. Because of this, it’s important to get all the records regarding the breath test machine.
On a blood test case, we can also subpoena all the records regarding the blood test. This includes the blood test, the gas chromatograph, the records regarding this particular test, the records regarding the collection and maintenance of the blood samples taken from our client, and the storage and chain of custody of that blood sample. We can also get all the chromatograms, the actual tests that are printed out with the result of an analysis of our client’s blood, because quite frequently those are misread or they are not properly produced so that they can have an accurate test result. We can show that it’s not an accurate test, or that there might have been other things besides alcohol that contributed to the reading. This happens frequently. In fact, many experts in breath and blood testing have agreed that there are more ways to have an error on a blood test than there is a breath test, and the breath test is notoriously inaccurate. We can get all of those records. Sometimes we can also do additional discovery by having independent experts examine those records, the chromatograms, and the other records regarding the blood or breath test just to look for problems, inaccuracies, or improper procedures regarding that test.
Frequently, we can show that that blood or breath test is inconsistent with how our client appears in the reports, video, or other recordings because of what the level is, and what the symptoms of intoxication should be at that level. Because of this, it’s important to be well-versed in not only all of the different ways to get discovery in a DWI case, but also all the things that many attorneys don’t know to discover about breath and blood tests, to be able to attack those things and show that they are inaccurate.
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There is also a discovery that we can do regarding the officer. We can get law enforcement records regarding that officer, their training, how long they’ve been licensed as a police officer, whether or not they have successfully completed their appropriate training, and how long it’s been since they’ve had that training. If there’s been other issues with their employment history as a police officer, we can very easily obtain those records, but many attorneys don’t know that you can or how to do that. Because of this, it’s important to have attorneys who know how to get discovery, and know all the different things that need to be discovered or obtained in order to properly investigate a client’s case.
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