In this page:
The basics of the Discovery Process
Get it done right now
What if the officer doesn’t respond to the request?
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 file for 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 file discovery with the court. Once you file 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 file discovery, and it takes time for the officer to respond to the discovery process. Therefore, get it done now. It is your responsibility to file discovery , so you need to file discovery right away. Just to be clear: if you are filing 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.
You will need to contact the court to find out the name and address of the person to send it to, and how much they will charge for copies (Be prepared to pay five or ten bucks for copies of the documents). Alternatively, you can fill out the form below (as much of it as you can) and take it to the court, though be warned that this probably won’t work for you.
Again, I would not delay, as sometimes these take a while to work their way through the system.
Also, unfortunately, it is quite common for discovery requests to be ignored. You will have to stay on top of it with phone calls and letters until you get the information you need.
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 filed 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 discovery request?
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%.
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
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.
[include #3 and #4 below if you have a RADAR, LiDAR, Laser or MVARS citation]
3. 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.
4. 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.
[If you are cited on a major Interstate freeway, then skip #5. (Asking for a speed survey for a freeway is ridiculous.) However, if it was any other kind of road, it doesn’t hurt to include it.]
5. The above-named defendant hereby requests that you provide, to the defendant whose address is indicated below, copies of the speed survey or engineering survey for [STREET] in the immediate area of [nearest major cross street to where you were cited].
[You should also include this paragraph. If you had no witnesses in your car, then put an X in the NONE box. If you have a witness, then their name, address and phone number should be recorded after “The following”.]
6.The following are names and addresses of defense witnesses, other than defendant, who will testify at trial:
( ) None.
( ) The following:
[You should also include this paragraph. Some people make notes immediately after they were cited, writing down any relevant facts they don’t want to forget. 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.”]
7. 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 city, state, and zip code]
[Your telephone number]