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DUI Discovery Procedures

DUI Discovery Procedures

California DUI Discovery Codified by Proposition 115 

Proposition 115 codified criminal discovery in California. Up until its passage, this area of law had mostly been from cases.

In codifying the law of discovery, it placed substantial limitations on discovery by the defense, established “reciprocal” (from the defendant) discovery, and set up a procedural scheme with sanctions.
The initiative added Cal. Const, Art. I, § 30(c), which provides that:

In order to provide for fair and speedy trials, discovery in criminal cases shall be reciprocal in nature, as prescribed by the Legislature or by the people through the initiative process.

This constitutional provision both creates a constitutional right to discovery and requires reciprocity. Furthermore, it bars the courts from making new discovery rules. The courts are left simply to interpret and test the constitutional provision and statutes (accord, Reynolds v. Superior Court for Los Angeles County (1974))

Other Statutory Discovery Schemes Still Remain


Penal Code § 1054.5(a) states: 

No order requiring discovery shall be made in criminal cases except as provided in this chapter. This chapter shall be the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys, law enforcement agencies which investigated or prepared the case against the defendant, or any other persons or agencies which the prosecuting attorney or investigating agency may have employed to assist them in performing their duties.

However, Penal Code § 1054(e) states:

This chapter shall be interpreted to give effect to all of the following purposes:

To provide that no discovery shall occur in criminal cases except as provided by this chapter, other express statutory provisions, or as mandated by the Constitution of the United States. [Emphasis added.]

What these two statutes mean, taken together, is that the discovery limitations of PC § 1054.5 apply only to court-ordered discovery directly from the prosecution and the law enforcement agencies and others employed by them. Discovery from these people via express statutory means not involving a court order is still permitted.

Furthermore, discovery by any method, including by court order, is permitted from other witnesses, including victims.

The subpoena duces tecum (See § 5:80 of the California Drunk Driving Law treatise) is also permitted under the statutory exception of PC § 1054(e).

Subpoenas duces tecum are creatures of statute (PC § 686(3), PC § 1326, PC § 1328; C.C.P. § 1985), and specifically permitted in criminal proceedings. (PC § 1326; PC § 1330).

In People v. Superior Court (Broderick) (1991), the court stated that, with regard to a subpoena duces tecum served by the prosecution on a defense witness, Proposition 115 discovery procedures apply only to the discovery between the People and the defendant. They are simply inapplicable to discovery from third parties [Emphasis added.]

Obtaining the Police Report

Prior to the Arraignment

It is generally difficult to obtain an arrest and investigation report from the District Attorney prior to the arraignment.

You can often get it quicker from the DMV in connection with the Administrative Per Se (APS) suspension action.

At the Arraignment

In most courts, attorneys who make a general appearance in a case can obtain the discovery from either the court or the District Attorney’s representative in court.

In some areas, the attorney must obtain discovery from the District Attorney’s office itself, sometimes for a fee where the attorney is privately retained.

If a prosecution refuses to turn over police reports, you have some choices about what action to take.
You might issue a subpoena duces tecum against the Police Department with a return date well in advance of the hearing. (See § 5:81.1 of the California Drunk Driving treatise on exemptions of a subpoena duces tecum from Proposition 115.)

A simpler method is available where the client is in custody and charged with a misdemeanor. In that case, you can request a probable cause hearing pursuant to PC § 991 (or felonies: County of Riverside v. McLaughlin (1991); and Gerstein v. Pugh (1975)). Such hearings usually proceed on the police report, which will then become part of the record, and counsel can obtain a copy.

Again, prosecutors may prefer to give attorneys police reports rather than have to put on hearings.

Obtaining Traffic Collision Reports in DUI Accident Cases 

Police Agencies investigating serious traffic injury collisions and death cases routinely deny drivers or defendants their right to obtain the Accident and/or Traffic Collision Reports under certain provisions of PC § 1054; however, CVC § 20012, which controls, provides:

[T]he Department of the California Highway Patrol or the law enforcement agency to whom the accident was reported shall disclose the entire contents of the reports, including, but not limited to, the names and addresses of persons involved or injured in or witnesses to an accident, the registration numbers and descriptions of vehicles involved, the date, time and location of an accident, all diagrams, statements of the drivers involved or occupants injured in the accident and the statements of all witnesses, to any person who may have a proper interest therein, including, but not limited to, the driver or drivers involved….

Moreover, CVC § 16000 requires traffic accidents to be reported to the California Department of Motor Vehicles within 10 days if there was an injury, death or property damage through an SR-1.


Untimely reporting typically results in the Department of Motor Vehicles suspending a driver license. Accidents occurring on January 1, 2003 or after must result in damages in excess of $750 to be reported.

 The accident information on the SR-1 is required under the authority of Divisions 6 and 7 of the California Vehicle Code. Failure to provide the information will result in suspension of the driving privilege.


Government Code §§ 6254(f) and 6254(k) are inapplicable to such requests because the more specific statute controls under the rules of statutory construction.


Thus, in this case, because the Vehicle Code is more specific than the Government Code, it prevails.

The plain meaning of the Vehicle Code Statute must be given effect. If the police agency fails to honor the request, the only recourse is to file a Petition For Writ of Mandate and ask for attorney’s fees under Government Code § 800 since there is no criminal case pending.

Penal Code §1054.5 Informal Requests for Discovery 

Informal Request Starts 15-Day Deadline Running

Pen. C. §1054.5, subdivision (b), relates to the necessity for an informal request and a 15-day waiting period before a discovery motion is made. This subdivision reads, in relevant part:

Before a party may seek court enforcement of any of the disclosures required by this chapter, the party shall make an informal request of opposing counsel for the desired materials and information. If within 15 days the opposing counsel fails to provide the materials and information requested, the party may seek a court order....

Thus, before either party may seek the court’s help in enforcing discovery, it must make an informal request of the other side, and give them 15 days to comply. When made, the informal request starts the running of a 15-day deadline before a motion can be made.

Separate 30-Day Deadline Prior to Trial

In addition to the 15-day deadline mentioned in PC § 1054.5, PC § 1054.7 also talks about a deadline. This one requires each side to make all disclosures not less than 30 days before trial. This section reads, in relevant part:

The disclosures required under this chapter shall be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred....

See § 5:52.3 regarding “good cause” in the two-volume treatise: California Drunk Driving Law.

Cost of Obtaining California DUI Discovery 

Schaffer v. Superior Court (2010) holds that prosecutors have no obligation to provide copies of discoverable items free of charge to non-indigent defendants.

However, if a non-indigent defendant opts not to pay, the prosecutor must make reasonable accommodations for the defense to view the discoverable items in a manner that will protect the attorney client privilege (soundproof locations with viewing area to prevent destruction of evidence).

The prosecution may not utilize a discovery policy that is impractical or unduly oppressive. People v. Zambrano (2007).

What the Penal Code Requires the Prosecution to Disclose

Penal Code § 1054.1 sets forth what things are discoverable from the prosecution, it reads:

The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies:

The names and addresses of persons the prosecutor intends to call as witnesses at trial.

Statements of all defendants

All relevant real evidence seized or obtained as a part of the investigation of the offenses charged.

The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial.

Any exculpatory evidence.

Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments or comparisons which the prosecutor intends to offer at the trial.

Officer's Personnel File and Citizen Complaints (Pitchess Motions) 

Under People v. Memro (1985), the Pitchess motion may be useful in drunk driving (DUI) cases where police assert the defendant was combative, and that this trait indicates that he was under the influence.
Undoubtedly there are other areas of relevance to the drunk driving charge where such discovery can be obtained. For instance, where the drunk driving arrest is an apparent pretext to a thorough search of the defendant and his auto, there is the possibility that the officer has done that before for racial reasons and others have complained.

The motion may also be useful where you suspect that others have complained about being detained without probable cause shortly after leaving one particular bar, or in other suspicious circumstances. [People v. Gill (1997)—Police officer’s habit or custom evidence is discoverable via Pitchess motion; People v. Hustead (1999)—Defendant’s allegation that cop’s report contained false information was sufficient to entitle him to an in-camera hearing to discover complaints about the cop mis-stating or fabricating facts.]

The Legal Standard Applicable to Pitchess Motions 

In Warrick v. Superior Court (City of Los Angeles Police Dept.) (2005), the California Supreme Court held that a defendant who is able to establish a “plausible factual foundation” meets the “good cause” requirement triggering the right to Pitchess discovery of police personnel records if the declarations show that the scenario of alleged police misconduct could or might have occurred.

The declarations must establish a proposed defense, and further must show how the discovery sought may lead to relevant evidence, or may itself be admissible direct or impeachment evidence.

The affidavit must describe a “plausible” factual scenario supporting the claim of officer misconduct.
The court defined “plausible scenario” as one which might or could have occurred.

The defense “need not present a factual scenario that is reasonably likely to have occurred or is persuasive or even credible,” but it must at least be plausible. People v. Thompson (2006).

No Right to Pitchess Motion Prior to Preliminary Hearing

In Galindo v. Superior Court (2009) (Review Granted), the Court held that Evidence Code §§ 1043-1045 do not expressly provide for Pitchess-type discovery prior to a preliminary hearing which is designed to be a streamlined procedure to establish whether probable cause exists and is specifically not intended to be a discovery device. The Court further noted that Pitchess material is unlikely to effect the outcome of a preliminary hearing. It will be interesting to see what the California Supreme Court does with this issue.

No Right to Pitchess Motion at DMV

Brown v. Valverde (2010), held that Pitchess discovery was not available at DMV hearings based upon its finding that the very purpose of the DMV administrative per se hearing (swift and certain license suspension in DUI cases) would be undermined by extending Pitchess discovery to them.

The DMV argued that permitting Pitchess discovery would create procedural nightmares and delays and that the issues in a Pitchess motion were well beyond the scope of issues that a hearing officer was trained to handle. The court then issued the quote of the year in defense of its ruling to keep Pitchess motions away from DMV hearing officers:

“The hearing officers lack the legal training to rule on the nuanced issues presented by a Pitchess motion, such as sufficiency of the affidavit and the materiality of the requested documents. When the documents in question are sensitive materials in a peace officer’s personnel record, it is critical that the individual ruling on the privilege claim be adequately trained. Putting Pitchess motions in the hands of anyone less than fully qualified would undermine one of the primary purposes of the Pitchess procedures, protecting the confidentiality and privacy of the officer.”
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