Subpoena Duces Tecum

[poiuy]

My question involves a speeding ticket from the State of: CA

I got a 22349(a) speeding ticket in Orange County, CA. I sent an informal discovery request to the DA and the CHP office for the officer who cited me. When I got no response, I called the court clerk to ask for the procedure to compel discovery. I was told to use a Subpoena Duces Tecum form. Has anybody used one before? My major questions are:

1) Do I serve it to the DA or to the CHP?

2) The form states that any items requested have to be submitted to the court, not to the defendant. Does that mean anything related to my citation (back of the ticket, officer's notes, etc.) will just be brought in the day of my trial leaving me no time to prep?

[That Guy]

My question involves a speeding ticket from the State of: CA

I got a 22349(a) speeding ticket in Orange County, CA. I sent an informal discovery request to the DA and the CHP office for the officer who cited me. When I got no response, I called the court clerk to ask for the procedure to compel discovery. I was told to use a Subpoena Duces Tecum form. Has anybody used one before? My major questions are:

1) Do I serve it to the DA or to the CHP?

2) The form states that any items requested have to be submitted to the court, not to the defendant. Does that mean anything related to my citation (back of the ticket, officer's notes, etc.) will just be brought in the day of my trial leaving me no time to prep?

Actually, for criminal matters (California traffic infractions are treated as criminal matters) the proper procedure to follow would be to file a "motion to compel" with the traffic court and serve a copy of it on the DA & the CHP. (See California Penal Code Section 1054.5).

You can search the forums here for "motion to compel" and you'll find a number of discussions about the topic.

And yes, even with a motion to compel, you might find yourself having to review the information at or shortly before your trial. You can ask the judge for a continuance but the amount of time he might grant might not be that long as that may interfere with your right to a speedy (45 day) trial from your arraignment date.

Why don't you share the details of when you were cited and/or what it is you are hoping to uncover from the discovery material you requested... We maybe able to clarify matters for you one way or the other!

[poiuy]

I was told that the local court rules for Orange County are that motions to compel are for civil cases but that they use this type of subpoena for criminal cases including traffic court cases.

I'm not sure how the CHP officer determined my speed, so I want to find that out to prepare a defense.

[That Guy]

I was told that the local court rules for Orange County are that motions to compel are for civil cases but that they use this type of subpoena for criminal cases including traffic court cases.

Either that clerk has things totally backwards or I have no idea what I'm talking about!

Here's the Subpoena (Duces Tecum) form which is the ONLY Subpoena (Duces Tecum) approved by the California Judicial Council.... As you can see, it is titled CIVIL Subpoena (Duces Tecum) for Personal Appearance and Production of Documents and Things at Trial or Hearing and Declaration... If you want to use a form approved for a Civil matter in a Criminal matter then its your decision... It is, after all, YOUR case.

Also, the Penal Code Section I cited above states the following:

Penal Code Section 1054.5:
(a) No order requiring discovery shall be made in criminal cases except as provided in this chapter. This chapter shall be the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys, law enforcement agencies which investigated or prepared the case against the defendant, or any other persons or agencies which the prosecuting attorney or investigating agency may have employed to assist them in performing their duties.
(b) Before a party may seek court enforcement of any of the disclosures required by this chapter, the party shall make an informal request of opposing counsel for the desired materials and information. If within 15 days the opposing counsel fails to provide the materials and information requested, the party may seek a court order. Upon a showing that a party has not complied with Section 1054.1 or 1054.3 and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.
(c) The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted. The court shall not dismiss a charge pursuant to subdivision (b) unless required to do so by the Constitution of the United States.

Again, if you would prefer to use a Subpoena form, then its your choice. Just keep in mind that for you to request any remedy ("including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order" - see subsection b) from the court in case the DA does not respond (and chances are the will not respond), you MUST follow the procedures outlined in PC 1054.5. Otherwise, you may not have any recourse.

I'm not sure how the CHP officer determined my speed, so I want to find that out to prepare a defense.

While I will not undermine your right to discovery, I will tell you that the method with which the officer measured your speed will have little impact -if any- on your defense in a 22349(a) case.

Good luck!

[poiuy]

I've talked to two different clerks and a supervisor now who have all said that the local court form to be used is the Subpoena Duces Tecum. Here's the one from their county site.

http://www.occourts.org/forms/local/l1014.pdf

[That Guy]

I've talked to two different clerks and a supervisor now who have all said that the local court form to be used is the Subpoena Duces Tecum.

Then use a "Subpoena Duces Tecum"... Other than citing the one specific statute that regulates this particular process, I am not sure what else I can say to convince you.

Also, keep in mind that by you using the subpoena form rather than an informal discovery request, you are requesting that the officer bring the discovery items with him to court and hand them to you at your trial (-not before - not within 15 days of your request-)... You requested that they bring them to trial, they complied by bringing them to trial... And the judge may order you to proceed without the benefit of any time to review the materials and "prepare your defense".

Please let us know how it all works out.

[poiuy]

I've already sent an informal discovery request that was ignored. That's why I called the clerk to ask what the procedure is for filing a motion to compel discovery. I guess the local rules of the Orange County courts only stipulate this subpoena as a means to getting discovery.

I would love to get the materials beforehand to have time to review them, but I don't see how I can if I'm being told the only way, locally, to get discovery is by doing this form.