A defense attorney who specializes in DUI / DWI cases may make one or more pretrial motions before the case goes to trial. One such request is known as a Pitchess motion – a request made by a defendant in a criminal action to access information in the arresting officer’s personnel file.
The name Pitchess comes from a 1974 California Supreme Court case, Pitchess vs. Superior Court, which is now part of the California Evidence Code. In the Pitchess ruling, the court mandated that a defendant should be entitled to any information that is relevant to their defense. The arresting officer’s personnel file may contain information that support’s a defendant’s claim that the officer engaged in misconduct in the past. Common complaints include racial bias, excessive force, false arrest, planting evidence, discrimination or harassment, or criminal conduct on the part of the arresting officer.
The most common reasoning behind the request for personnel records involves officer dishonesty. This may include allegations that the officer filed a false police report, used improper tactics, such as illegal or non-approved methods of attaining evidence, or physically abused or threatened the defendant.
Pitchess motions are highly specialized and require the consultation of an experienced criminal attorney who understands all aspects of this motion. If the proper steps are not followed, then it is likely that the personnel records of the arresting officer will never be revealed, and won’t be utilized in the type of defense necessary to win a DUI / DWI case involving officer misconduct.
In order to obtain access to the personnel file, a hearing must take place, because the court must balance the rights of the defendant against the officer’s equally compelling interest in maintaining privacy in his or her records. The hearing is designed to ensure an appropriate balance of these two compelling interests.
The records subject to a Pitchess motion include all records maintained by the law enforcement agency about the arresting officer. These may include records of internal affairs investigations, citizen complaints, and records containing psychological or other medical information concerning the arresting officer. However, the records the defense wishes to access must be relevant to the specific complaint. For example, if the defendant is alleging that the officer filed a false police report, then allegations of excessive force would not be relevant.
The defense must serve a Pitchess motion on the custodian of the records sought. In most instances, this will be the law enforcement agency that employs the officer. Motion papers must include a hearing notice which specifies the records sought, a memorandum of legal arguments in support of disclosure in that particular case, a declaration under oath (usually by the defendant’s attorney) which specifies the defenses raised and the factual justification for disclosure, and a proposed order for the judge to sign. If excessive force is charged against the officer, then a copy of the police report must be attached.
If hand-delivered to the law enforcement agency, the motion must be served at least 21 calendar days before the hearing date. If the motion is served in the mail, then five extra days are added to the 21 days.
The hearing process occurs in two steps. The first step is for the court to determine which types of records are subject to disclosure. Secondly, the judge will review the particular records in camera, meaning outside of the presence of the lawyers and defendant.
The motion must demonstrate good cause, meaning that the defense has substantiated their claims with relevant facts from the incident. The court needs to be able to evaluate whether the defendant has set forth specific facts that support the particular records requested. The legal standard for good cause is relatively low. The defendant making the request need only show that the scenario of police misconduct could or might have occurred. If the records date back far enough, then the court will not likely grant access to them, even if they involve the same type of misconduct alleged.
A successful Pitchess motion is a favorable ruling for the defendant that results in the officer’s records being released. An experienced drunk driving lawyer will attempt to use the information to show a pattern of misconduct on the part of the arresting officer, which may result in certain evidence being excluded at trial.