Obtaining Discovery in Drunk Driving Cases

The importance of obtaining discovery in a drunk driving case cannot be emphasized enough. To win a DUI case, you must get certain materials to challenge, impeach and discredit the police officer's case. Contrary to any advice you may have heard, a chemical test result above 0.08 presumes you are guilty, and only through hard work and effort can a person show that a breath or blood test is not infallible in a particular case. Unfortunately, most attorneys do not ask for discovery, fail to request the right materials, or fail to obtain the correct documents.

Obtaining discovery in drunk driving cases can be overwhelmingly difficult or as easy as simply asking for it. Many prosecutors and police officers are willing to provide requested materials without hesitation, and many courts attempt to facilitate this exchange. On the other hand, some jurisdictions provide the absolute minimum and aggressively oppose providing additional materials.

"Discovery" refers to a legal process that applies in both criminal and civil cases, where the parties exchange the information that they intend to rely upon at trial. In theory, this avoids "trial by surprise" and compels both sides to critically look at their own case's merits. In civil cases, discovery is very broad, and horror stories abound about parties spending hundreds of thousands of dollars on depositions, interrogatories, and document requests to wear down the opposing party. One notable story discusses how a major auto manufacturer provided copies of documents on smelly dark red paper with dark lines that caused the other party's attorneys to suffer headaches.

Michigan courts have repeatedly held that the trend in criminal cases is towards broader discovery, but it has always been far more limited than in civil cases. In recent years, the courts have shrunk away from broader criminal discovery. The Michigan courts have held that discovery does not exist in misdemeanor cases because our court rules provide for discovery only in felony cases. Most drunk driving cases are misdemeanors. This runs contrary to federal due process and U.S. Supreme Court rulings, which mandates that exculpatory information be turned over by the prosecutor to the defense, even in the absence of a discovery request. Worse still, a recent Michigan appellate court held that videos cannot be produced under discovery because the court rule does not specifically say "videos" in that rule. (Contrary to that ruling, which is disingenuous at best, the court rule states that a party must be provided "a description of and an opportunity to inspect any tangible physical evidence that the party may introduce at trial, including any document, photograph, or other paper, with copies to be provided on request." The Court of Appeals did not attempt to address this provision in its ruling but simply said it did not apply.)

For many, a drunk driving arrest is the most serious offense that the person has ever faced. The courts should certainly protect a person from decades or a life in prison by making evidence known to the accused's attorney, but the possibility of 3 months to a year in jail is no less serious to the average person. The courts should do an absolute reversal of recent trends and permit broader discovery in all criminal cases, including sworn statements and depositions prior to trial. Until that time, every conviction ought to be viewed with the suspicion that the judicial system forced a guilty plea or guilty verdict onto the accused.

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