Colorado DUI Laws - DUI Attorney Motion for Internal Police Reports
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Here's a sample Motion for Internal Police Reports that Colorado DUI Attorney Chris Cessna Uses to defend Colorado Drunk Driving Cases:
MOTION FOR DISCLOSURE OF INTERNAL POLICE REPORTS
COMES NOW, the Defendant, M.F.G., by and through the Law Office of Christopher Hunter Cessna, LLC, and through Christopher Hunter Cessna, Esq., a member of the Bar of the State of Colorado, and having been duly authorized to do so by the Defendant herein, hereby respectfully requests this Court to Order the release and production of any internal investigations, police records, and/or personnel files of Adams County Sheriff's Deputy Andrew Roth as outlined in the Defendant's Subpoena Duces Tecum. Such records may be relative to Deputy Roth's credibility and truthfulness as a law enforcement officer and witness in this matter. As grounds for this motion, the defendant states:
I. FACTUAL BACKGROUND
1. On August 31, 2004, Deputy Andrew Roth conducted a vehicle stop on M.F.G.. The deputy's stop ultimately evolved into an investigation of M.F.G. for DUI.
2. As part of the investigation, Deputy Roth activated his dash-mounted video camera only after the vehicle stop had been completed. The camera then recorded the performance of M.F.G. during the roadside tests and all the way through transport to the Adams County Jail for booking after Deputy Roth placed M.F.G. under arrest for DUI.
3. As this Court may be aware, Deputy Roth's credibility and reputation for truthfulness came into question during the matter of People v. Donald Martella, (Adams County Court case number 2003 M 03550), after Mr. Martella's counsel fully investigated his client's matter. As a result of counsel's investigation, Denver's Channel 4 News televised a follow-up investigative report concerning this deputy's conduct during the Martella arrest which specifically focused on Deputy Roth's lack of truthfulness, possible false reporting and the fabrication of evidence against Donald Martella. (See attached transcript of the Channel 4 News Report).
4. The Channel 4 News report and Deputy Roth's dash mounted video-tape from the night Donald Martella was arrested raise credibility and truthfulness issues due to the stark contrast between the suspect's satisfactory performance on the tape and what the deputy later alleged in his arrest report as a series of failed roadside tests indicating impairment.
5. Similarly, as with the Donald Martella video, the tape from Deputy Roth's dash mounted camera indicates that M.F.G. did in fact perform all of the roadsides as a sober person would. And likewise, as with the Donald Martella matter, Deputy Roth later claimed in his arrest report that M.F.G. failed the roadside tests.
6. Furthermore, additional questions of Deputy Roth's credibility and truthfulness came into question in the Martella case, when after ignoring a defense subpoena to produce this tape, Deputy Roth testified under oath at a November 5, 2003, Department of Revenue hearing that he never taped the Martella roadside investigation. (p.15 L.5 and p.16 L.2). However, weeks later Deputy Roth somehow was able to produce a tape of Martella's roadside tests only after additional, extraordinary discovery efforts were successful in uncovering the existence of this tape. (See attached pages of DOR transcript for case number 03-311383).
7. The existence of this tape contradicts Deputy Roth's sworn testimony where he made unequivocal and repeated claims under cross-exam that no tape of that arrest ever existed. The existence of this tape also contradicts Deputy Roth's police reports where he claimed that Mr. Martella did not perform the roadside tests as a sober person would. These discrepancies formed the basis for the Channel 4 News Investigative report and a subsequent dismissal of the drinking and driving charges against Mr. Martella.
II. LAW APPLICABLE TO THE DISCOVERY OF INTERNAL POLICE
REPORTS AND INVESTIGATIONS
1. When appropriate, a trial court in a civil case may conduct an in camera examination of police files and reports to determine their relevance within the meaning of C.R.C.P. 26(b)(1). Non-privileged information "generally bearing on" a pending cause of action is subject to at least in camera review, and may be discoverable under the rule. People v. Blackmon, 20 P.3d 1215 (Colo. App. 2000) citing Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980).
2. In Martinelli, the Colorado Supreme Court held that SIB (Staff Inspection Bureau Files) "reports could contain evidence probative of the officer's propensity towards misconduct. We approved the procedure for producing such files for an in camera inspection by the trial court. We did not draw a distinction between sustained and unsustained complaints." People v. Walker, 666 P.2d 113 (Colo. 1983).
3. The law cited in Martinelli was extended to criminal cases in People v.Walker, 666 P.2d 113 (Colo. 1983), where the supreme court held that a defendant charged with assaulting a police officer is entitled to disclosure of complaints charging excessive use of force against the officer involved. See Crim. P. 16(III)(f)(upon request the court may permit an in camera showing of cause for denial of disclosure); Crim. P. 16(I)(a)(2) (prosecutor must disclose evidence that tends to negate defendant's guilt). People v. Blackmon, supra.
4. In discussing what is privileged and non-privileged information contained within a SIB report, the Court in Denver Policeman's Protective Ass'n. v. Lichtenstein, stated that privileged information pertains to the right to prevent disclosure of personal matters. Denver Policeman's Protective Ass'n. v. Lichtenstein 660 F.2d 432 (10th Cir. 1981), citing Whalen v. Roe, 429 U.S. 589 (1977).
5. The United States Supreme Court discussed the right to privacy over personal matters of public officials in Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), and stated:
We may agree with appellant that, at least when government intervention is at stake, public officials, including the President, are not wholly without constitutionally protected privacy rights in matters of personal life unrelated to any acts done by them in their public capacity. [Emphasis added]. Id. at 457, 97 S.Ct. at 2797.
6. A document relating to an officer's work as a police officer is not a personal matter and is thereby not protected from disclosure. Denver Policeman's Protective Ass'n. v. Lichtenstein, 660 F.2d 432 (10th Cir. 1981).
7. The Court has further stated that a police officer's expectation of privacy may be overridden by a state's compelling interest in the determination of truth and safeguarding a defendant's right to exculpatory evidence. People v. Walker, 666 P.2d 113 (Colo. 1983).
8. Additionally, "when the only prosecution witnesses are the police officers involved, anything that goes to their credibility may be exculpatory." Denver Policeman's Protective Ass'n. v. Lichtenstein, 660 F.2d 432 (10th Cir. 1981).
9. The court has most recently stated that other than bare allegations that the requested documents would relate to the officer's credibility, a defendant needs to show how the information would be relevant to his defense of the charges against him. People v. Blackmon, supra.
10. After the court determines that the information may be relevant, the procedures employed by the trial court of ordering the SIB files to be inspected in camera and applying a balancing test to determine what documents should be given to defense counsel, the court should weigh the competing interests of the defendant, the government and the public. People v. Walker, 666 P.2d 113 (Colo. 1983).
11. The court in Walker further stated that the "trial court shall conduct an in camera examination of all complaints of brutality, excessive use of force, dishonesty, or untruthfulness which relate to the three police officer witnesses and determine what, if any, information in the SIB files should be disclosed to defense counsel in accordance with the standards announced in Martinelli v. District Court, supra. People v. Walker, 666 P.2d 113 (Colo. 1983).
III. THIS COURT SHOULD REVIEW THE INTERNAL POLICE FILES AND DISCLOSE RELEVANT INFORMATION TO THE DEFENSE.
1. The information which may be revealed by the in camera inspection may be relevant to this case because under the 6th , 10th , 11th , 15th and 14th Amendments to the US and Colorado Constitutions, and Article II, sections 16 and 25 of the Colorado Constitution. These rights afforded an accused by the US and Colorado Constitutions relate to the defendant's rights to due process, a fair trial, the effective assistance of counsel, to prepare a defense, to confront and cross-examine witnesses and impeach their credibility.
2. The information which may be revealed by the in camera inspection may be relevant to this case because cross-examination by questions that focus on the motive of a witness are generally permitted, and evidence tending to impeach the witness' testimony or reflect bias may be allowed. People v. Walker, 666 P.2d 113 (Colo. 1983).
3. Additionally, any reliable evidence, which is proffered by the defendant, which has a tendency to disprove the defendant's guilt, is constitutionally admissible and relevant. Chambers v. Mississippi, 410 US 284 (1973); Crane v. Kentucky, 476 US 683 (1986); Rock v. Arkansas, 483 US 44 (1987); Olden v. Kentucky, 488 US 227 (1988). Exculpatory material is an integral right to a fair trial. Brady v. Maryland, 373 U.S. 83 (1963).
4. The information sought in the documents requested for review relate only to the officer's work as a police officer and not to personal matters. Thus, they are not subject to a privilege that would prevent their non-disclosure.
5. Furthermore, it is our position that the interests of the Defendant outweigh the interests of the prosecution, as the Defendant faces the possibility of jail and/or terms and conditions of probation, including the stigma of a criminal conviction for DUI if convicted in this case.
6. An in camera inspection of the documents is also non-intrusive and materials will only be revealed to the defense upon the determination of the Court after taking all matters into consideration.
7. Deputy Roth's documented conduct in the Martella case brings his credibility for truthfulness and honesty into question. Furthermore, because of the deputy's prior conduct and due to the fact that he is again the People's only witness in this matter now before this Court, his credibility should be of vital concern and subject to proper scrutiny.
WHEREFORE, Defendant requests this Court to require the production and disclosure of documents as outlined in Defendant's Subpoena Duces Tecum.
Dated this 18th day of February 2005. Respectfully submitted,
_____________________________
Christopher Hunter Cessna, #31702
Attorney for Defendant
5400 Ward Road
Bldg. V, Suite 200
Arvada, Colorado 80002
Telephone: 800-DIAL-DUI
ORDER: MOTION FOR DISCLOSURE OF INTERNAL POLICE REPORTS
THIS MATTER having come before the Court on the Attorney's MOTION FOR DISCLOSURE OF INTERNAL POLICE REPORTS, the Court hereby:
[ ] Grant's Attorney's motion.
[ ] Denies Attorney's motion.
[ ] Sets the Attorney's motion for a hearing on the _______ th day of ______________ , 2005, at ______________ .
DONE this _______ day of ____________________, 2005.
BY THE COURT:
_________________________________
County Court Judge
CALL 1-800-DIAL-DUI (Areas 303 and 720) NOW TO TALK TO COLORADO DUI ATTORNEY CHRIS CESSNA
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Christopher H. Cessna
5400 Ward Road
Bldg. V, Suite 200
Arvada, Colorado 80002
1-800-DIAL-DUI (area codes 303 and 720)
COLORADO DUI DENVER COURTHOUSE INFORMATION
Jefferson http://www.courts.state.co.us/district/01st/dist01.htm
Adams http://www.courts.state.co.us/district/17th/17dist.htm
Broomfield: http://www.courts.state.co.us/district/17th/17dist.htm
Denver http://www.courts.state.co.us/district/02nd/02dist.htm
Arapahoe http://www.courts.state.co.us/district/18th/18dist.htm
Douglas http://www.courts.state.co.us/district/18th/18dist.htm
Gilpin http://www.courts.state.co.us/district/01st/dist01.htm
Boulder http://www.courts.state.co.us/district/20th/20dist.htm
Weld http://www.courts.state.co.us/district/19th/19dist.htm
Elbert http://www.courts.state.co.us/district/18th/18dist.htm
Counties: Jefferson, Adams, Denver, Arapahoe, Broomfield, Douglas, Gilpin, Boulder, Weld, Elbert
Cities: Denver, Golden, Brighton, Littleton, Aurora, Centennial, Broomfield, Castle Rock, Boulder, Greeley, Black Hawk
The most common acronyms for drunk driving in Colorado are:
DUI or Driving Under the Influence, 42-4-1301
DUI per Se or Driving with Excessive Alcohol Content, 42-4-1301
DWAI or Driving While Ability Impaired 42-4-1301
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