In a DUI case, most defense attorneys will file for discovery. Discovery is simply another term for evidence. Its important to review all of the evidence in a case, so a proper assment of the strengths and weaknesses of the case may be made.
But what if a prosecutor will not respond to a discovery request in a DUI case? What can happen then?
The Kentucky Rules of Criminal Procedure set forth the consequeces for not responded to discovery in a DUI case, or in any criminal case. First, the DUI defense attorney has to have made a written request for discovery. It is always good practice to file a motion for discovery with the court and serve a copy on the prosecutor. That way, there is no dispute as to whether or not a request was made, and then, if there is not response, you are entitled to make a motion to compel.
A motion to compel is the typical motion filed with the court to notify the judge that the prosecutor has not provided evidence in the case. The best way to handle a motion to compel is to FIRST have requested the information from the prosecutor, in both a phone call and a follow-up letter. This will show the judge that the defense counsel has made an effort to obtain the information before going to the court for help.
The judge has the power to issue an order to permit the discovery or inspection, grant a continuance in the case, or prohibit the part from introducing into evidence the material not disclosed. It is rare that a judge, on a first motion to compel, will order that the material not be admiited into evidence. This can occur, though and most often would occur if the prosecutor were trying to introduce evidence in the middle of a trial.
