When defending a client accused of driving while intoxicated, it is of the utmost importance to gather as much information about the arresting officer as possible.
Other law enforcement officers on your target list for a breath test failure case must include the breath test operator and the state's breath test expert.
Discovery motions and license suspension hearings are the two most popular information-gathering methods in drunk driving cases - but they are not without their faults.
Discovery motions can telegraph your strategic moves and are subject to objections from the state on the grounds that the items requested are not under the control or custody of the prosecution.
Your ability to develop evidence at a license suspension hearing may be curtailed by an administrative law judge who wants to narrow the focus of the hearing.
I have found three tools that allow me to conduct discovery outside the purview of the courts and under the prosecutor's radar: TCLEOSE records, the Texas Open Records Act and attorney issued subpoenas.
TCLEOSE Records In Texas, the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE) maintains education, training and disciplinary records on all licensed peace officers in the state.
These records provide you with the extent of the officer's formal education, service history, awards, certifications and all training courses the officer has completed.
While TCLEOSE recommends that officers certified to administer and interpret field sobriety tests take refresher courses every two years, Texas courts have not placed such a requirement on an officer's ability to testify as an expert in the tests.
The TCLEOSE records, however, may give you a powerful tool to use in cross examination if the officer has not taken a refresher course recently.
Public Information Act Requests The Texas Open Records Act allows individuals to request public records from state and local agencies, including police departments.
An officer's civil service file is a public record and may be acquired through an open records act request.
These files can provide a wealth of material for impeaching the officer's testimony.
These files include employment applications, commendations, awards, salary information and disciplinary records.
Just imagine my delight when a recent file revealed that the arresting officer in my case had been arrested once for public intoxication and resisting arrest.
Attorney issued subpoenas While the Code of Criminal Procedure affords a defendant the right of compulsory service of process, any subpoena issued through the court is subject to the scrutiny of the prosecutor.
Texas Rule of Civil Procedure 176 provides another avenue to gathering evidence from witnesses - the attorney issued subpoena.
Despite the protests of the prosecutor, a subpoena issued by an attorney is just as valid as a subpoena issued through the court.
Such subpoenas may be used to acquire business records, offense reports and electronic recordings.
Provided the subpoena was served properly, the penalties for ignoring an attorney issued subpoena are the same as those for ignoring a court issued subpoena.
Taking advantages of these methods will allow you to conduct discovery "under the radar" and prevent the prosecutor from anticipating your strategic moves at trial.
If you've been wrongly arrested for DWI, you need an experienced DWI attorney to defend your rights and restore your reputation.
Contact Houston DWI Attorney Paul B.
Kennedy for more information and a free consultation.