Getting a Dismissal if the Prosecutor Doesn't Give Materials Requested in Discovery

My question involves traffic court in the State of: Alabama

Thank you in advance for reading this! And I apologize for my lack of experience because I've never been to a real trial before.

I have an upcoming court date for speeding. I mailed a discovery request to the courthouse, the DA's office, and the citing officer's agency, and then a few days later I mailed a motion to compel discovery to the courthouse and the DA's office. The DA responded with an email saying that they didn't plan on presenting any evidence except for the citation which I already have.

Assuming I don't get any of the items I asked for in discovery, I was planning on moving to dismiss because I was not allowed to adequately prepare a defense. But that might not be a good idea since the DA told me they're not gonna use any new evidence so there's nothing to discover. So in that case, I'll move that the court order the prosecution to not present any evidence beyond what they said they're gonna present. But that also puts me in kind of an awkward position.

In my cross-examination of the officer, I'd want to ask for documents that certify the radar gun used and the tuning fork and the officer's ability to use them. But then I'd have to say "No, that's inadmissible as evidence." And at the end I'd say that the prosecution has failed to prove to a legal degree of certainty that I was speeding, because their lack of evidence shed doubt on their claim, even though they're sitting with the evidence right there but without being able to use it.

What's the best way to go about this? Should I just keep my mouth shut when it comes to asking for the documents, and then make a closing statement that the prosecution could provide no certification for the speed measuring device? If the prosecution isn't allowed to provide any evidence beyond the citation, should I just skip the cross-examination altogether? What's the best way to bring to the court's attention the lack of documents that the prosecution would need to prove their case?

Thank you so much again.

From what I've previously seen, it appears that an Alabama traffic ticket is treated as a misdemeanor and is subject to the rules of criminal discovery. That rule requires the prosecutor to turn over or make available for inspection items "which are within the possession, custody, or control of the state/municipality", so you may want to review your response from the prosecutor to see if they have advised you to arrange with the police agency to review radar certification or maintenance records. An adequate response to discovery does not necessarily involve sending you a copy of a record.

If you have filed and served a motion to compel discovery, and have properly noticed your motion for hearing, you will be able to address at the motion hearing your belief that certain discoverable materials were not provided to you. Did you notice the motion for hearing at the date of trial, or at an earlier date?

Thank you for your response!

Yes, according to my research I am charged with a misdemeanor.

Here's the state's response to my discovery request, sent by the DA:

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At the trial in the above-cause, the State of Alabama intends to introduce information from the traffic citation, of which the Defendant has a copy, and will elicit testimony from the Alabama State Trooper about the details of the traffic stop. The remainder of the requested information by the Defendant is information which is maintained by another agency and not intended for use by the State of Alabama in this prosecution. The State of Alabama has no objection to the Defendant subpoenaing that requested information from the appropriate agency.

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So yes, they said they won't give it to me because they don't have it. That's why, after sending my request, I sent the motion to compel discovery so that the court can make the police agency provide the material.

I didn't notice my motion for hearing. I just found an official form online for Alabama and filled it out and mailed it to the courthouse and the DA's office. I assumed the form would include everything it needed to. Do you think that might be enough, or is it only valid if I notice my motion for hearing? I never heard of that while doing my research.

http://definitions.uslegal.com/m/motion-hearing/
This suggests that a judge can grant a motion without a hearing. Is that true?

You can ask the traffic court clerk if your filing a motion without noticing it for hearing is adequate, or if you need to obtain a motion date and file and serve notice of hearing.

I think it's far too late to mail anything else. My plan is to show up to court and move to dismiss and show the notarized copies as proof that I requested discovery and moved to compel discovery.

Thank you kindly for your response!

Good luck with that.

Was that sarcastic? Do you think my chances are bad?

What items are you trying to compel from the prosecutor?

Did you file your motion to compel on the police agency? If so, for what?

Keep in mind that operations manuals for radars and the like are not generally considered the property of the agency involved and you may have to subpoena the publisher for a copy if the agency believes they are unable or unwilling to lawfully provide you with a copyrighted version.

I sent the form to the courthouse and the DA with the understanding that they'd know who to order these documents from.

I asked for the officer's daily log and notes and training records for the radar gun, serial numbers and maintenance records and the police agency's regulations for the device and tuning forks, the FCC license, engineering reports for the highway, and yes, the operator's manual.

But I also moved to subpoena the officer to bring his copy of the operator's manual to court, so even if they can't provide it for discovery because of copyright they can still bring it to court, right?

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Quoting protectingmyanonymity

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I sent the form to the courthouse and the DA with the understanding that they'd know who to order these documents from.

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So ... you directed an order to compel discovery to the agency that has already told you that they do not have the information you are requesting? I am not sure whether that would permit the court to dismiss or prohibit testimony as a result. You might be directed to obtain an order to compel to be served on the law enforcement agency, instead.

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I asked for the officer's daily log and notes and training records for the radar gun, serial numbers and maintenance records and the police agency's regulations for the device and tuning forks, the FCC license, engineering reports for the highway, and yes, the operator's manual.

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I suspect the agency can provide everything but the operator's manual ... and, probably not an FCC license. An FCC license for what? They do not need to obtain a separate license for radar if they already have one for radio operations. Are you asking for their FCC license to operate their radios? (i.e. their communications division? Were you clear and specific on this request for their radio license?)

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But I also moved to subpoena the officer to bring his copy of the operator's manual to court, so even if they can't provide it for discovery because of copyright they can still bring it to court, right?

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I suppose he could ... but, I can't speak as to the stats of the law in AL.

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Quoting cdwjava

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So ... you directed an order to compel discovery to the agency that has already told you that they do not have the information you are requesting?.

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No, it was the DA who told me they don't have the information. It's the courthouse and the judge who are meant to compel the prosecution to provide the materials I requested. I only sent the motion to the DA as well because the form indicated that I should.

I assume the DA must intend to bring some kind of evidence against me and so I suspect their claim of "we don't have anything" is a dodge, which would be expected because why would they willingly help me fight them? So what if it's in the police agency's possession instead? The officer is the prosecution's witness, right? I understand it's normal for the prosecution to present certification for the radar gun, etc. But if the DA is really so empty-handed then I'm happy to fight them with their complete lack of evidence.

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Quoting cdwjava

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An FCC license for what? [...] Were you clear and specific on this request for their radio license?

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Yes, I was clear and specific but I didn't want to reproduce the entire request here because the language gets kind of long. I requested:

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A copy of the FCC (Federal Communications Commission) license that authorized the issuing police agency and operator of the speed measuring device to lawfully operate the device on a specific frequency and / or range of frequencies.

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You might get no response to the FCC license request simply because there will be no separate license for the operation of the radar. And even if they fail to present their radio FCC license, I am not sure that makes their use of radar unlawful in AL unless there is some law that requires the use of radar to otherwise comply with state and federal regulation. It's an interesting point, but may not be one that will get you very far with a judge.

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Quoting protectingmyanonymity

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Do you think my chances are bad?

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If you did not properly notice your motion for hearing, then the court may not even know that you filed the motion, and may not see it until the date of your hearing. Assuming the court finds merit to your motion, that runs the risk that you're going to get an adjournment as opposed to any more significant relief, with the prosecutor ordered to provide the discoverable materials prior to the next court date.

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Quoting protectingmyanonymity

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But I also moved to subpoena the officer to bring his copy of the operator's manual to court....

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By that, you presumably mean that you asked the court to issue a subpoena duces tecum to the officer -- but was such a subpoena actually issued?

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Quoting cdwjava

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An FCC license for what?

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As you have noted, although FCC regulations do require a license for the operation of a radar transmitter, state and local government entities in the Public Safety Pool that already have a FCC license for operating a radio communications system do not require an additional license to operate ordinary police radar units.

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Quoting 47 CFR Sec. 90.20(f)(4)

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(4) A licensee of a radio station in this service may operate radio units for the purpose of determining distance, direction, speed, or position by means of a radiolocation device on any frequency available for radiolocation purposes without additional authorization from the Commission, provided type accepted equipment or equipment authorized pursuant to §90.203(b)(4) and (b)(5) of this part is used, and all other rule provisions are satisfied. A licensee in this service may also operate, subject to all of the foregoing conditions and on a secondary basis, radio units at fixed locations and in emergency vehicles that transmit on the frequency 24.10 GHz, both unmodulated continuous wave radio signals and modulated FM digital signals for the purpose of alerting motorists to hazardous driving conditions or the presence of an emergency vehicle. Unattended and continuous operation of such transmitters will be permitted.

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I'm not aware of any state that makes the use of a radar as evidence in traffic court contingent upon the production of a FCC license.

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Quoting Mr. Knowitall

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Assuming the court finds merit to your motion, that runs the risk that you're going to get an adjournment as opposed to any more significant relief, with the prosecutor ordered to provide the discoverable materials prior to the next court date.

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Well I don't want to risk an adjournment and hopefully the judge will be merciful in that area if I tell him that I had to drive 8 hours one way just to get there and so it would be a great inconvenience to me not to settle the case on my court date. Maybe instead of moving to dismiss I should just move that the prosecutor be ordered to stand by their word about not using any evidence other than the citation.

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Quoting Mr. Knowitall

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By that, you presumably mean that you asked the court to issue a subpoena duces tecum to the officer -- but was such a subpoena actually issued?

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Yes, I asked the court to issue a subpoena duces tecum to the officer, and I doubt it was actually issued but I don't know what else I can do.