Mowimy Po Polsku - Se Habla Espanol

Barry Boches & Associates

At What Point In A Criminal Case Does An Attorney Get Access To Discovery?


You’re entitled to discovery as soon as you ask for it, which you will do when you make your first appearance in court. Usually, the judge will order that to be turned over within seven days. In Illinois, the discovery rules are different for a misdemeanor DUI than they are for a felony DUI. On a misdemeanor DUI, you’re entitled to what’s called Schmidt Discovery, which is pursuant from People v. Schmidt. That discovery includes the police report, any logbooks referring to the breathalyzer machine verification, and any videos that were taken from the police at any point (dash-cam, personal cam, jail camera, etc.).

What Happens In Felony Cases?

In a felony case in Illinois, you’re not entitled to even request discovery of police reports until you’ve had an arraignment. The arraignment process doesn’t start until you’ve gone through a probable cause hearing, which is either a grand jury hearing where your case is indicted (which happens 99% of the time), or a preliminary hearing. After the preliminary hearing and after the case is bound over to your new full felony charge, the first date from the full felony judge is also called an arraignment. At that time, you would request your discovery, and usually the state will order it within seven days. In a felony case, it’s common to have to wait four or five weeks to receive the discovery. In a misdemeanor case, it depends on when they set your case for the initial court appearance. For example, if you get a DUI on September 1st and the officer gives you a first appearance date of October 7th, you can’t just demand discovery right away because the case isn’t even on the docket yet. So, you have to wait a little while.

What Sort Of Evidence Do You Use In Defending A DUI Case?

The type of evidence that’s usually the most telling is video footage. Video footage says it all. I’ve had cases in which the video footage totally contradicted the officer’s account of what occurred. So, that’s very important. You want to see the specifics of what the officer says the defendant did on the field sobriety tests, and a lot of times that’s captured on the video too. A picture is worth a thousand words. An officer can say, “He staggered all over and almost fell off the line,” but you might find that the video completely contradicts that account of events.

A lot of officers write a lot of DUIs, and they get confused or might mix up one case with another. Video footage is very helpful in confirming the accuracy of the officer’s account. In addition, you really want to see how your client looked at the time of the incident; if the judge is going to see it, you want to see it. So, if your client was stumbling all over the place and peed in his pants and puked all over himself, then there’s a pretty good chance that you’re in trouble. But if your client was sitting there very quietly, and correctly and coherently addressed all the questions that were asked, then that is obviously very helpful.

So, you really want to see the video. The police reports usually go into more detail, especially in regards to the field sobriety tests. The officer may report that the defendant “flunked the field sobriety tests,” but there are certain clues on each test. The standard one leg test requires a person to hold their leg six inches off of the ground and count “1,1000, 2,1000” until they get to 3,1000, all while having their arms at their side. There are certain clues that indicate that a person is not doing it properly, like if they raise their hands away from their sides, put their foot down, or don’t count correctly. There have to be many things that a person did improperly for it to be officially declared a failure. You can’t just say, “I looked at him and it looked like he failed,” because that’s way too subjective.

There are some objective standards and we need to see those. A detailed account of how the person did on their field sobriety tests is very important at all stages. At the beginning stage, it’s important in order to see if the summary suspension is going to be in effect, to see if the officer really had probable cause to ask for further testing, and also to see if it appeared that the person was truly under the influence. All of those things come into play. As in any case, it’s very important to see all of the evidence that the state has against the defendant.

For more information on Discovery In A Criminal Case, a free initial consultation is your best next step. Get the information and legal answers you’re seeking by calling (847) 244-4636 today.

Barry Boches, Esq.

Get your questions answered - call me for your free phone consultation (847) 244-4636.

Related Articles