A defense attorney has submitted a cookie-cutter Motion for Discovery of DWI Breath Test Evidence. Multiple references are made to the "OSD-TSD-01" and the "AutoCal Procedures". The Defense attorney is specifically asking for 1) any and all documents maintained in the Instrument Certificate File, 2) any and all documents maintained in the Solution File, 3) any and all documents maintain in the Subject File, 4) any and all documents maintained in the Maintenance File, etc, etc (see attached file for copy of the actual motion).

We suspect this is something he got from a defense bar training, and other prosecutors must have seen this or something similar. We think its purpose is to overload the prosecution, and force us to give a low-ball plea offer or flat out dismiss the case.

Has anyone heard of or seen this before? If so, how did you deal with it?

DWI_Breath_Test_Evidence_Motion.pdf (500 Kb, 19 downloads) Motion for Discovery

It's a common subpoena that's been going around for a couple of years now. All the information requested is kept in the normal course of business by Technical Supervisors.

We provide it all with a minimal per page fee.

Yes, the biggest issue here is that it's being presented as a motion for discovery, rather than a subpoena duces tecum. The defense can certainly get this information but it's not "in the possession of the state" in the same way that say, a patrol video is. It's in the possession of DPS in their capacity as the certifying agency for the breath test machines- and that isn't kept in anticipation of any specific litigation.

This information is analogous to medical records. The defense can GET it, but they can't make you go out and get it for them to then turn over to them.

As mentioned, if they send in the subponea to DPS testing they'll get everything they're asking for. Send a copy of the motion to the technical supervisor in your case and they can make sure YOU get a copy of it too, and advise you if there's anything they're requesting which doesn't exist.