Requesting Discovery

In this page:

The basics of the Discovery Process

Get it done right now

What if the officer doesn’t respond to the request?

Directions


The basics

This page explains the discovery process on a basic level, why and when to use it, and finally, how to go about it.

There are four ways an officer can determine your speed for a citation: radar, pacing, laser, and visual estimate. Since many of the defenses for speeding tickets involve challenging the evidence, knowing how the officer determined your speed is vital to your defense. If you don’t know, then you should request discovery to find out.

In Law, “discovery” is the exchange of legal information and known facts of a case. Think of discovery as obtaining and disclosing the evidence and position of each side of a case so that all parties involved can decide what their best options are – move forward toward trial or negotiate an early settlement.

All parties in a case are required to participate in the discovery process, meaning they must hand over information and evidence about a claim so all participants can know what they are facing at trial.

If you want to know everything there is to know about the discovery process, you can review the material on this page here, but it’s not necessary for you to know it to fight your citation. 

In a traffic case, you request discovery with the court. Once you send your request for discovery, the ticketing officer will be required to submit to you all of the evidence he has gathered in the case.

We have a sample form below to make sure that the officer sends all the information you need to fight your ticket. If you have asked for something in the discovery process and the officer doesn’t send it to you, then that might be grounds to have your ticket dismissed. Don’t forget to make a big stink about any missing documents in your declaration and especially in your Trial de Novo, should you end up in court.

Do it first. DO IT NOW.

It takes time to request discovery, and it takes time for the officer to respond to the discovery process. Therefore, get it done now. It is your responsibility to request discovery , so you need to request discovery right away. Just to be clear: if you are requesting discovery, then it has to be done first. It will be your top priority. It should be done before everything else. And, once the officer has sent you the evidence, you’ll be in a better position to write your declaration.

Where do I send it?

The discovery request is made of the officer. So, the Request For Discovery form should be sent to the officer. (duh). Also, ideally: 

A copy (labelled as a copy) should be sent to the officer’s supervisor.

A copy (labelled as a copy) should be sent to the chief of police or sheriff, depending on who’s the head of the building the officer works in. 

A final (labelled as a copy) should be sent to the court.

Note that the copies are not as important as the original sent to the officer. 

You will want to send this certified mail, return receipt requested. Do not skip this step. 

What if the officer doesn’t respond?

If it is close to your court date, you can ask for an extension pending the results of your discovery efforts. (“Your honor, the officer has not responded yet to my properly and legally submitted request for discovery. I need information from the officer to contest my citation. I therefore request an extension to give the officer more time to respond to my discovery request. Yadda yadda yadda”).

Because so few traffic defendants ask to see the evidence against them, many police and prosecutors (and even some judges) believe this right to discovery is not available in traffic court. So, if your discovery request doesn’t initially get results, follow-up with a second request—reiterating that you believe access to the officer’s notes is critical to presenting your defense—that you have not received a response to your first request. With this second request, make sure you send it to all the same entities and include copies of the first request.

If you get no response to your discovery request with a few weeks or so (or your trial date is fast approaching), you’ll need to file a “motion to compel discovery” in the traffic court. Basically, in this motion, you’re asking the judge to order the government to turn over the requested documents and other evidence. (Again, it’s probably a good idea to call the court clerk to find out how you should go about filing this type of motion.)

So, what can you do if the government doesn’t comply with your legal request for discovery?

If your trial date comes and your discovery request has still been ignored, you should ask the judge to dismiss your ticket for the discovery violation. In a case where the government clearly has the requested discovery in its possess—like calibration records for a radar unit used to measure your speed—there’s a pretty good chance of getting a dismissal, though not 100%. 

Here’s an example of how you can say it in your Statement of Facts:

I plead Not Guilty to violating CVC 22349a. The facts of my case follow:

PART I – No Response to Request for Discovery

On [date], I sent, by certified mail, a Request for Discovery to CHP Officer Carnitas at as his branch office seeking any and all information, including, but not limited to, device used, calibration information of the device and the distance between the officer’s radar device and my vehicle, which was impossible to read on the copy of the citation I received from the officer. I CC’d the officer’s direct supervisor, [name], and the chief of the police of his office, [name], and the court clerk of [Jurisdiction] Court. I have included a copy of this Request as a separate attachment.  

The official request was signed for (via certified mail w/ return receipt) by officer Carnitas on [date] (see exhibit A). However, the officer has subsequently withheld this information.

I ask the court to dismiss this citation on the grounds that the officer is either illegally withholding evidence from a lawful request for discovery, or the officer does not have this information, which should render his radar evidence inadmissible. 

PART II – Arguments against allegations

(etc. – your other arguments follow) 

 

Directions for writing the Request

COPY the text below this line and PASTE it into your word processor. Make sure you replace everything that’s written in RED with your own information. Also, the items below are numbered one through seven. If you delete one, don’t forget to change the numbers.

You are going to send one to the cop who cited you ATTN: the law enforcement agency at which the cop works. You might have to do a little legwork to get the agency name and address but it shouldn’t be too hard – it’s not like it’s a state secret. 

You will also want to CC the court clerk. But just to be clear – the court will probably not send you anything at all since they are not the prosecuting agency. 


SUPERIOR COURT OF CALIFORNIA
COUNTY OF [county you were cited in – it’s on your ticket]
[branch of the court]

THE PEOPLE/STATE OF CALIFORNIA
Plaintiff,
vs.

[your name],
Defendant.

REQUEST FOR DISCOVERY
Court Docket No. [case number or docket number]
Citation Number: [citation number]
Date Issued: [date the citation was issued]
Police Agency: [look on your ticket for this]
Citing Officer: [officer’s name]
Badge No. [officer’s badge number]
Prosecuting Agency: [city in which you were cited] City Attorney

TO THE ABOVE-NAMED POLICE AND PROSECUTING AGENCY:

1. The above-named defendant hereby requests that you provide, to the defendant whose address is indicated below, copies of any and all relevant written or recorded statements of witnesses, including any statements, diagrams, or drawings made by the citing officer on any piece of paper—including the reverse of his/her copy of the citation—or other medium of information storage.

2. The above-named defendant hereby requests that you provide, to the defendant whose address is indicated below, copies of the Officer’s Declaration.


[If you have a radar, laser/LiDAR, or MVARS citation, then include  #3 through #8. #6 is bolded on purpose.]

3. The above-named defendant hereby requests that you provide, to the defendant whose address is indicated below, a description of the device  used (radar, LiDAR, MVARs, etc.), along with the device serial number and date of last calibration. 


4. The above-named defendant hereby requests that you provide, to the defendant whose address is indicated below, the position of the officer’s vehicle, preferably on a map.


5. If the officer’s vehicle was in motion at the time the reading was made, then the above-named defendant hereby requests that you provide, to the defendant whose address is indicated below, the speed and direction of the officer’s vehicle. 


6. The above-named defendant hereby requests that you provide, to the defendant whose address is indicated below, the distance from the device to the target car from which the device recorded a reading.


7. The above-named defendant hereby requests that you provide, to the defendant whose address is indicated below, documentary proof of the Officer [NAME]’s successful completion of his radar operator course certified and approved by the Commission on Peace Officer Standards and Training.


8. The above-named defendant hereby requests that you provide, to the defendant whose address is indicated below, documentary proof that the [“RADAR” or “LiDAR” or “MVARS”] or other electronic device used to measure the speed of the accused meets or exceeds the minimal operational standards of the National Traffic Highway Safety Administration, and has been calibrated within the three years prior to the date of the alleged violation by an independent certified laser or radar repair and testing or calibration facility. 


9.The following are names and addresses of defense witnesses, other than defendant, who will testify at trial:
( ) None.
( ) The following:


[You should also include the following paragraph. Some people make notes immediately after they were cited, writing down any relevant facts they don’t want to forget. Notes usually look something like this – handwritten, scrap of paper, something you wrote down as soon as you came to a stop. Having these notes helps your case and they usually do not help the officer at all.  If you made any such notes, you will have to include a photocopy of these notes (discovery works both ways). In this case, check the box next to “See attached”. If you took no physical notes, then check the NONE box and delete the line “( ) See attached.”]

11. The following copies of notes made by defendant immediately after the ticket was issued and recorded statements of witnesses are attached:
( ) None.
( ) See attached.


DATED: [today’s date]
[Your name]
[Your address]
[Your city, state, and zip code]
[Your telephone number]