Home » Delayed & Incomplete VA DWI Discovery – Fairfax DUI Lawyer Comments

Delayed & Incomplete VA DWI Discovery - Fairfax DUI Lawyer Comments

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Delayed and incomplete Virginia DWI discovery - Fairfax DUI lawyer handles it head on

Delayed and incomplete Virginia DWI discovery (evidence) can be frustrating to a defendant at best, and harmful to the defense at worst. As a Fairfax DUI lawyer, I know that Virginia assistant commonwealth's attorneys / prosecutors have many obligations to juggle, as do criminal defense lawyers. At the same time, if a person is going to be a trial lawyer -- whether for criminal defense, prosecution or otherwise -- they are signing onto obeying the governing rules and law regarding turning over evidence to the opponent on a timely basis. It is your Virginia DWI lawyer's job to assure that the prosecution honors their discovery-providing obligations in a timely and complete manner, and that your lawyer timely and fully shares the discovery with you (except to the extent that the law or court order places any limits on that), and makes sure that you understand such evidence and its role in your defense, and that you and your lawyer fully address how the discovery fits into your defense, and how the discovery informs what further evidence and investigation the defense pursues. Moreover, in pursuing convictions, prosecutors seek to deprive Virginia DWI defendants of their liberty under Virginia Code § 18.2-266 (criminalizing driving under the influence of alcohol or drugs), and should not be heard to do so without fully fulfilling their discovery obligations.

What discovery / evidence am I entitled to receive from the prosecutor in my Virginia DWI prosecution?

As a Fairfax DUI lawyer, I know that if your Virginia DWI prosecution is a misdemeanor proceeding (which it usually is, unless charged as a third offense or as having caused severe injury or death), the Virginia procedural rules -- specifically Virginia Supreme Court Rule 7C:5 --  only says that you get access to what you told the police and your criminal record, and that the Supreme Court's Brady case adds the exculpatory evidence referenced in that case. Virginia felony cases are entitled to even more expansive discovery under Va. S. Ct. R. 3A. Non-jailable misdemeanors prosecuted in the commonwealth do not even get the benefit of any Rule 7C:5 discovery, and are left to rely on Brady and on voluntary discovery disclosure by the prosecutor and law enforcement officers (LEO) in the case. The foregoing Virginia misdemeanor / DWI court rules do not set deadlines other than that the latest a judge will order the discovery's production is on the trial date prior to the commencement of trial. Watch out for delayed discovery, incomplete discovery or both.

Do Fairfax and other Northern Virginia prosecutor's offices provide DWI discovery before my trial date?

Awhile back, Fairfax DUI and other criminal misdemeanor discovery would often be provided within as little as around two weeks after being correctly requested. Now, the Fairfax commonwealth's attorney's / prosecutor's office ordinarily agrees to produce Fairfax and other criminal misdemeanor discovery to the defense at least ten days before the first trial date, so long as the defense provides this completed discovery form to the Fairfax prosecutor's office at least ten days before the trial date. The county to our east ordinarily provides a proposed Virginia DWI / misdemeanor discovery order for discovery to be provided at least a week before trial, but does not agree for Brady / exculpatory evidence to be provided within that deadline. On the beneficial flip side is that the prosecutor's offices in Fairfax, and the counties to the east and northwest of us routinely provide the Virginia DWI / misdemeanor defense with police reports when not all prosecutors do so. Each prosecutor's office has a different approach for agreeing to providing discovery before the trial date. Watch out about reaching any informal discovery agreements if that will result in delayed discovery, incomplete discovery or both. Brady applies without needing any discovery agreement.

What can my Fairfax DUI lawyer / Virginia DWI attorney do if criminal discovery / evidence is delayed or incomplete?

Different approaches exist to remedying delayed and incomplete Virginia DWI discovery. In Fairfax, I rarely need to file a motion asking the court to compel the prosecutor to provide me discovery, because if it is late, or incomplete, I have ordinarily been able to work out a resolution without needing to seek court intervention. In the county southwest of us, I have on several occasions needed to file motions to compel discovery when it is late or when the incident video is not provided in downloadable format, even when within the category of video footage that the discovery order directs to be downloadable. Sometimes the prosecutor does not know whether s/he has complete discovery. I inquire as needed, not only of the prosecutor but of the police when needed. For reasons that do not make sense to me, the county southwest of me routinely does not provide police reports to the defense, which risks the prosecutor's missing its Brady obligations. I have, on more than one occasion, obtained from the police officer in that county notes on field sobriety testing (FSTs or SFSTs), for instance, that the prosecutor had not known about before I obtained it. In another county, the prosecutor did not know until the trial started that the police officer had video footage of the incident that had not been provided to me (which was in the days before the widespread outfitting of Northern Virginia with body cameras).

Is a trial date continuance enough to remedy a discovery violation, rather than to exclude the delayed evidence, for instance?

If the discovery rules and Brady are going to have any teeth, a trial date continuance will not always be sufficient for remedying delayed discovery from the prosecution. For one thing, a trial date continuance can implicate the defendant's speedy trial rights under the Constitution's Sixth Amendment and the Virginia Code's speedy trial protection. For another thing, a court rule is a court rule, and no lawyer -- whether a prosecutor or otherwise -- should feel assured that the only remedy to a discovery violation is a trial date continuance at worst.

How serious is a prosecutorial Brady violation?

A prosecutorial Brady violation is very serious, which covers both delayed provision of such evidence and its non-provision. It would be great for Virginia state courts to make Brady obligations as clear to the prosecution as do the federal criminal rules (other than that it may be too time-consuming for the Virginia state courts to orally admonish the prosecution of its Brady obligations in DWI and other misdemeanor cases, due to how time-consuming such admonishment can take for the slew of such cases that appear before the Virginia courts.) All Virginia state and other prosecutors should always abide by the following federal rule requirement: "In all criminal proceedings, on the first scheduled court date when both prosecutor and defense counsel are present, the judge shall issue an oral and written order to prosecution and defense counsel that confirms the disclosure obligation of the prosecutor under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, and the possible consequences of violating such order under applicable law." Fed. R. Crim. Proc. 5(f)(1).

Must my Fairfax DUI lawyer / Virginia DWI attorney be ready to ruffle prosecutorial feathers by demanding adherence to criminal discovery rules and orders?

Your Fairfax DUI lawyer / Virginia criminal attorney is obligated to fully defend you, which means that if that defense includes ruffling the feathers of the prosecutor in pursuing your discovery when it is delayed or incomplete, and in pursuing your other procedural, statutory and Constitutional rights, then that is needed. Your lawyer can do so diplomatically and firmly, but must never avoid fully pursuing your best defense.

Fairfax DUI lawyer Jonathan Katz relentlessly pursues your best defense against Virginia DWI prosecutions. You have come to the right place when you come to Jon Katz for your defense. Call 703-383-1100 for your free initial in-person consultation about your court-pending prosecution.