An example of a prosecutorial discovery violation comes from a New Jersey police officer’s drunk driving case. In that case, the off-duty officer was charged with driving under the influence after crashing through the wall of a store, according to NJ.com. His attorney requested discovery from the prosecutor, including a copy of the manual for the blood-testing procedure and audio recordings of police communications related to the case.
Seven months after the discovery request was made, the prosecution had not provided the manual or the audio recordings. The defense attorney filed a motion to dismiss the case, and the judge gave the prosecution one month to provide the requested materials. Three months later, the prosecution had not given the materials to the defense attorney, and the judge dismissed the case. Although the case occurred in New Jersey, I would expect a similar result in Ohio.
In Ohio OVI cases, the prosecution’s failure to timely provide evidence may be a discovery issue or a due process issue, depending on whether the evidence is still available. If the evidence is still available but simply has not been provided, it’s a discovery issue. In that situation, I file a motion for a discovery sanction. The sanction imposed is the least severe action available to correct the violation. Typically, that means the judge gives the prosecution additional time to provide the missing evidence. If, however, the evidence is not turned over by the deadline, the case may ultimately be dismissed.
If the evidence is no longer available, it’s a due process issue. The defendant has the Constitutional right to due process of law (fair proceedings), and the destruction of evidence may violate that Constitutional right. If the destroyed evidence was ‘materially exculpatory’, or if the destroyed evidence was ‘potentially useful’ and destroyed in bad faith, the destruction of the evidence may result in the case being dismissed.
Two of my cases from earlier this year illustrate how discovery issues play out in Ohio DUI/OVI cases. In the first case, I requested video of my client at the jail and a recording of the 911 call regarding my client. Both pieces of evidence were destroyed, and the OVI charge was completely dismissed. In the second case, the prosecution did not timely provide the result of my client’s blood test. The blood test result showed-up in court on the day of the hearing on my motions to dismiss the case: seven months after my client’s arrest. The outcome of the hearing was uncertain, so the prosecution and defense agreed to resolve the case with a lesser charge.
Evidence destruction and serious discovery violations are somewhat rare in Ohio DUI/OVI cases. A defendant in an OVI case should not pin her hopes on beating the case on a discovery issue. On the other hand, these situations do arise, so defense counsel needs to have the knowledge of the applicable law and the skill to properly litigate the issue to achieve favorable client outcomes.