Wednesday, January 31, 2007

Discovery Tools DWI Defense Attorneys Can Use

Many Police Officers who aggressively enforce DWI or Drunk Driving Laws are aggressive in other aspects of their job. Aggressive officers generate more than their share of citizen complaints and ensuing internal investigations. This makes for fertile ground in discovery for a defense attorney IF they know where to look. This bulletin is designed to instruct a defense attorney where to look for buried skeletons concerning their arresting officer. It is imperative that you know how to ask for information, what to ask for, and where to look within a police organization.


Your success will depend on how thorough and effective you are in seeking this information. "Give them ONLY what they ask for..." is what legal counsel for police agencies will tell record custodians in responding for requests for documents buried deeply within the bowels of a police organization. So the FIRST thing you need to know is to be careful how you craft your requests. For example: A requests for information reading as follows: "All citizen complaints, etc...wherein Officer Jones...received departmental discipline..." will yield ONLY the complaints where a citizen’s complaint was supported with enough evidence that the officer was disciplined. More often than not, officers are NOT disciplined in citizen complaints where it is the officer's word against the citizen's. So a requests crafted in this fashion will likely not reveal all the citizen complaints where the officer has lied his way out of it. Remember, cops aren't stupid! They're generally not going to screw up when they know independent witness or a video-camera is present. You have to use the magic-words in your request!

(The "personnel records" game.)

A request for an officer's "personnel file" will usually yield butt-kiss! (Unless you find mundane city personnel forms interesting reading.) Know that nearly all law enforcement agencies effectively hide their internal matters concerning officer's conduct in locations other than the officer's personnel file. You still need to ask for that because there will likely be valuable information concerning the officer's training, but don't stop there. In larger agencies that have an Internal Affairs Division, here is where you will usually find the Mother-Load of information! But don't limit it to that division. Craft your requests to include "all departmental internal investigations involving citizen, officer or supervisor complaints..." Also know that most internal affairs divisions keep a form of a rap-sheet, so to speak, on each officer. This will have a chronology of all matters investigated on this particular officer. Ask for that as well to be sure you got everything. Also, most internal affairs divisions maintain a master-log of all matters investigated including the personnel involved. This can be fertile ground for an attorney that does a lot of litigation with officers from one particular agency. Also, many police officers are rogues, traveling from agency to agency as their misdeeds catch up with them. Be especially wary of officers from small departments where their officers are paid hourly and there is a high turnover. A rookie starting out is one thing, but a seasoned and experienced officer? There a problem somewhere! In the "personnel file" you'll find their two-page city application that nobody looked at. This is worthless compared to their "Personal History Statement." These are basically a book the officer filled out in applying for their job where they were told to spill-their-guts about everything they've ever done wrong and they would likely be polygraphed on their responses. Also ask for performance appraisals/evaluations and reprimands/counseling/coaching reports.


Most agencies have a mother-load of information concerning your client's arrest that will not be reflected in the arrests report. The technology is there, the information is there, you just need to ask for it and ask for it quickly because so much of this data is periodically purged every 60-90 days.

Dispatch Information:

Computer Aided Dispatch Data: This is the screen the dispatcher was looking at and completed when she received that 911 call from a motorist, or a radio call from the officer stopping your client. That printout will contain the information the police learned, and when they learned it. It will also show the names of every officer that responded, when they arrived, and when they left. Here's a good example of how this can be helpful: I had a case in Keller, Texas, small town in northern Tarrant County. The dispatcher dispatched an intoxicated driver call. No license plate information and a very general description of the vehicle. By looking at the CAD Data, it was established there was no way my client's vehicle could have been the one the police were seeking, given the time and location of the call, direction or travel, etc. It also reflected another officer was stopping another vehicle of the same general description on the other side of town, which would have been more correctly the vehicle. In this case, the officer developed no reasonable suspicion of his own before stopping my client, the 911 caller was not identified, and this case will likely result in all evidence being suppressed. You won't find ANY of this information in the arrests report!

Jail Information:

In booking there is a medical screening of your client. I cannot begin to guess the number of times a jailer has check the "No" box where it ask if the prisoner is under the influence of alcohol or drugs. Want to bet he makes your witness lists for trial?

Field Training Officer Notes and Mobile Data Terminals:

If your arresting officer was a rookie with a partner, that partner was likely a training officer. Subpoena his notes and FTO daily critiques. There, he has likely made a record of everything that officer did incorrectly with your client. You won't find THAT in the arrests report either! Also, never, never, never fail to ask for the mobile data terminal transmissions. This is essentially e-mail from car-to-car, and car-to-station. These officers will yuck-it-up about your client before, during, and after the arrest. Ask for ALL MDT transmissions sent and received by your arresting officer (and any other officer that was at the scene) for the entire shift. Here you will often glean valuable information from discussion among the officers. Here's an example of a dialogue between two officers at the scene of a DWI arrest:

P-215 Dis [sic] he blow?
J-417 Yea...
P-215 Do I win?
J-417 Nope. .11
P-215 [Expletive omitted] ...I never thought he'd have blown that high, must be an Asian thing.
J-417 Didn’t [sic] mention eatin rice in the interview LOL

This case was reduced to an obstructing and the officer making the racial remarks was disciplined. Again, you won't find stuff like this in an arrests report!

I hope this blog has given defense attorneys some food for thought. If any of you need any help with any particular situation, don't hesitate to contact me at:

1 comment:

Alexander said...

Do you usually request all of this information by way of an Open Records Act request or through a subpoena?