NO. ______________

THE STATE OF TEXAS			§	IN THE COUNTY COURT
§
V.						§	AT LAW NO. FIVE
§
						§	MONTGOMERY COUNTY, TEXAS

MOTION FOR DISCOVERY AND INSPECTION
IN THIS DWI BREATH TEST CASE
TO THE HONORABLE JUDGE OF SAID COURT:
	COMES NOW, the above referenced Accused Citizen, by and through the undersigned counsel, and respectfully moves this Court to allow and order the discovery set forth below.  These requests are brought pursuant to:
	(A)	Article 39.14 of the Texas Code of Criminal Procedures;
	(B)	The Due Process Clause of the 14th Amendment of the United States Constitution and Article I, §§ 13 and 19 of the Texas Constitution;
	(C)	The right to effective assistance of counsel, the right to be informed of the nature of the accusation, the right of confrontation and cross-examination and the right to compulsory process as guaranteed by the Sixth Amendment of the United States Constitution and Article I, § 10 of the Texas Constitution.
	(D)	Texas Transportation Code §§ 724.016 and 724.018.
	Defendant seeks an order requiring the State's attorney and the State's agents (including, but not limited to, the Texas Department of Public Safety and Montgomery County Sheriff’s Office) to produce and permit examination, inspection and copying of the following items by the Defendant, undersigned counsel, co-counsel, and forensic experts employed by the Defendant, counsel or co-counsel.
1.	A copy of all Intoxilyzer inspection, maintenance, and repair records (hand written, computer generated, or any other kind) on the machine and location used in this case from six months before and after the date of the test in this case to the present or 100 tests before or after, whichever is greater. 

2.	All documents, not otherwise covered by item 1, reflecting or concerning any repairs, changes, deletions, modifications, or adjustments made to either the Intoxilyzer or the simulator device used in this case from six months before the date of the test in this case to the present.  Without limitation, this includes purchase orders and invoices for parts, shipping invoices for the Intoxilyzer used in this case, and memorandums or other correspondence relating to repairs, changes, deletions modifications or adjustments made to the Intoxilyzer used in this case during the specified time periods. 

3.	A copy of the Intoxilyzer test result logs (the report that is produced in log form) from 90 days before the test in this case to the present.  This report should contain all fields that are available for inclusion in the report and no fields or data should be excluded. 

4.	A true, unredacted copy of each test slip from each test on the Intoxilyzer used in this case from 90 days before the test in this case to the present. 

5.	A copy of all calibration logs and records relating to calibrations on the Intoxilyzer used in this case for two calibrations before and after the date of the test in this case. This request is to specifically include (but not limited to) the Calibration Analyst Worksheet, Technical and Administrative Review Checklist, and calibration certificates. 

	6.	A copy of the calibration protocol for the Intoxilyzer used in this case. 

7.	A copy of the calibration protocol for the reference simulator used in conjunction with the Intoxilyzer used in this case -- both for the simulator device in use when the test was administered in this case and for the simulator device(s) used when the Intoxilyzer was last calibrated before the test in this case. 

8.	A copy of the protocol for the creation of the calibration solutions last used to calibrate the Intoxilyzer before the date of the test in this case.  

9.	A copy of the protocol for the creation of the batch solution from which the solution used to make the simulator solution used in the Intoxilyzer on the date of the test in this case was made. 

10.	A copy of the protocol for the creation of the simulator solution used in the Intoxilyzer on the date of the test in this case. 

11.	A copy of any and all confirmations or verifications from any source for the simulator solution that was in the Intoxilyzer used for the test in this case. 

12.	A copy of any and all confirmations or verifications from any source for the batch solution from which the simulator solution that was in the Intoxilyzer used for the test in this case.  

13.	A copy of any and all confirmations or verifications from any source for the calibration solutions last used to calibrate the Intoxilyzer before the date of the test in this case. 

14.	A copy of the protocol for calibrating the thermometer on the reference simulator device used for the test in this case. 

15.	A copy of any documentation indicating when the thermometer used in the simulators (calibration and for the test in this case) were placed into and removed from use.

16.	All logs or records reflecting or concerning the use or consumption of all solutions used in relation to the Intoxilyzer in this case.  This specifically includes logs relating to the use of the pure ethanol used to make the batch solution, the calibration solution, and the reference solution used in the Intoxilyzer in this case.

17.	All documents reflecting the expiration date of the pure ethanol used to create any solution in relation to the Intoxilyzer in this case.

18.	An electronic copy of all data (including Black Mamba/Cobra Data) stored on and/or downloaded from the Intoxilyzer used in this case from 90 days before the test in this case to the present.  This request specifically requests the raw data files and not just the selective report generated from the raw data file. This request also includes a request for the database report from 90 days before the test in this case to the present. This data should be produced either on a floppy disc or a CD. 

19.	A copy of the operator's manual for the software used to collect, store, and manage data downloaded from the Intoxilyzer as well as to communicate with the machine remotely.

20.	An opportunity for the defense and defense experts to view, visually inspect, diagram and photographically record the Intoxilyzer machine used in this case as well as the area, and all immediately adjacent and adjoining areas, in which the machine used in this case is kept.  This specifically also includes all other electronic devices in the Intoxilyzer room, as well as adjoining (side, above or below) and nearby rooms (within approx. 100 feet) which may emit radio frequency interference, i.e., photocopying machines, radio transmitters, microwave ovens, computer terminals, etc. 

21.	A copy of the certificate authorizing the Intoxilyzer operator in this case to operate the Intoxilyzer used in this case. 

22.	A copy of the certificate authorizing the technical supervisor(s) to supervise the operator and machine in this case. 

23.	A copy of the any document certifying the Intoxilyzer used in this case, by serial number, and not just by brand or model, for use in the State of Texas. 

24.	A copy of any document or certificate authorizing the entity supervising, maintaining, or controlling the Intoxilyzer used in this case to conduct, have, or administer a breath alcohol testing program in the State of Texas.

25.	A copy of all rules and regulation governing the operation of the Intoxilyzer used in this case not otherwise published in the Texas Administrative Code or contained in a statute of this state.

26. 	The monthly technical supervisor activity reports submitted to DPS for 90 days before and after the date of the test in this case.  

27.	All MDT or “Mobile Data Terminal” logs by whatever name they may be known, of or relating in any way to the stop, investigation, detention, and arrest in this case.

28.	Any records relating to construction (including but not limited to electrical records (including power outages or surges), heating, ventilation, air conditioning records, etc.) for one year before and after the test in this case.

29.	A copy of the records generated by the calibration laboratory for the thermometer used to verify the proper operational temperatures for the intoxilyzer used in this case. This specifically includes all records relating to the handling and storage of said thermometer(s), documents proving NIST traceability, and calibration records for the thermometer on the reference simulator device used in this case. 

30.	A copy of any and all videos depicting the Accused in this case, including but not limited to, all police car dash cam videos, sally port videos, booking videos, and jail videos.

31.	A copy of the complete testing location inspection that was completed when the instrument that was used in this case was placed into, returned to, and/or removed from service at the testing location used in this case. 

32.	Any documentation relating to missing records, including but not limited to non-evidential test record data printouts generated from the database, written explanations from the operating describing the reason for the lost record, and any other actions taken by the technical supervisors in relation to the missing record(s) relating to the breath test operator in this case for one year before and after the test in this case.

33.	Any records relating to the approval, suspension or revocation by the scientific director of the reference sample device used for the test in this case and for two calibrations before the test in this case. Additionally, any records relating to the maintenance, calibration, and/or testing of the reference sample device used in the test in this case and for two calibrations before the test in this case.

	In support of this MOTION, the Defendant shows as follows:
	1.	The matters requested are in the exclusive possession, custody and control of the State of Texas by and through its agents, a law enforcement agency, or the prosecuting attorney's office.
	2.   	The items requested are not privileged.
	3.	The items requested are material and necessary for the preparation of the defense in this case. Texas Code of Criminal Procedure Art. 39.14.
	4.	Absent all of the requested discovery, Defendant's rights under Article 39.14 of the Texas Code of Criminal Procedure, Article 1, Section 10 of the Texas Constitution, and the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Texas Transportation Code §§ 724.016 and 724.018 will be violated to his irreparable injury and thus deprive the Defendant of a fair trial.
	5.	That a date certain for compliance with this motion and order be set for 15 days from the day this motion is signed by the Court. 
	6.	This MOTION is made in good faith and not for delay.
	WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays that this motion be granted in its entirety.
							Respectfully submitted,
							Law Office of L. Clay-Jackson, P.L.L.C.

							___________________________	                        
							JOSHUA ZIENTEK
							T.B.C. No. 24063781
							1110 N. Loop 336 W. Suite 500
							Conroe, Texas 77301
							Phone: 936-760-2889
							Facsimile: 936-760-2892
							ATTORNEY FOR ACCUSED

CERTIFICATE OF SERVICE

	This is to certify that a true and correct copy of the attached and foregoing document has been served on the Montgomery County District Attorney's Office by delivering a copy to 207 West Phillips, 2nd Floor, Conroe, Texas on this 24th Day of January, 2013 via hand delivery.
								____________________	                         
								JOSHUA ZIENTEK

NO. _____________

THE STATE OF TEXAS			§	IN THE COUNTY COURT
§
V.						§	AT LAW NO. FIVE
§
						§	MONTGOMERY COUNTY, TEXAS

ORDER

Before the court is Defendant's Motion for Discovery and Inspection and after due consideration of same it is the Court's opinion that said Motion is GRANTED as follows,

1.	A copy of all Intoxilyzer inspection, maintenance, and repair records (hand written, computer generated, or any other kind) on the machine and location used in this case from six months before and after the date of the test in this case to the present or 100 tests before or after, whichever is greater. 

2.	All documents, not otherwise covered by item 1, reflecting or concerning any repairs, changes, deletions, modifications, or adjustments made to either the Intoxilyzer or the simulator device used in this case from six months before the date of the test in this case to the present.  Without limitation, this includes purchase orders and invoices for parts, shipping invoices for the Intoxilyzer used in this case, and memorandums or other correspondence relating to repairs, changes, deletions modifications or adjustments made to the Intoxilyzer used in this case during the specified time periods. 

3.	A copy of the Intoxilyzer test result logs (the report that is produced in log form) from 90 days before the test in this case to the present.  This report should contain all fields that are available for inclusion in the report and no fields or data should be excluded. 

4.	A true, unredacted copy of each test slip from each test on the Intoxilyzer used in this case from 90 days before the test in this case to the present. 

5.	A copy of all calibration logs and records relating to calibrations on the Intoxilyzer used in this case for two calibrations before and after the date of the test in this case. This request is to specifically include (but not limited to) the Calibration Analyst Worksheet, Technical and Administrative Review Checklist, and calibration certificates. 

	6.	A copy of the calibration protocol for the Intoxilyzer used in this case. 

7.	A copy of the calibration protocol for the reference simulator used in conjunction with the Intoxilyzer used in this case -- both for the simulator device in use when the test was administered in this case and for the simulator device(s) used when the Intoxilyzer was last calibrated before the test in this case. 

8.	A copy of the protocol for the creation of the calibration solutions last used to calibrate the Intoxilyzer before the date of the test in this case.  

9.	A copy of the protocol for the creation of the batch solution from which the solution used to make the simulator solution used in the Intoxilyzer on the date of the test in this case was made. 

10.	A copy of the protocol for the creation of the simulator solution used in the Intoxilyzer on the date of the test in this case. 

11.	A copy of any and all confirmations or verifications from any source for the simulator solution that was in the Intoxilyzer used for the test in this case. 

12.	A copy of any and all confirmations or verifications from any source for the batch solution from which the simulator solution that was in the Intoxilyzer used for the test in this case.  

13.	A copy of any and all confirmations or verifications from any source for the calibration solutions last used to calibrate the Intoxilyzer before the date of the test in this case. 

14.	A copy of the protocol for calibrating the thermometer on the reference simulator device used for the test in this case. 

15.	A copy of any documentation indicating when the thermometer used in the simulators (calibration and for the test in this case) were placed into and removed from use.

16.	All logs or records reflecting or concerning the use or consumption of all solutions used in relation to the Intoxilyzer in this case.  This specifically includes logs relating to the use of the pure ethanol used to make the batch solution, the calibration solution, and the reference solution used in the Intoxilyzer in this case.

17.	All documents reflecting the expiration date of the pure ethanol used to create any solution in relation to the Intoxilyzer in this case.

18.	An electronic copy of all data (including Black Mamba/Cobra Data) stored on and/or downloaded from the Intoxilyzer used in this case from 90 days before the test in this case to the present.  This request specifically requests the raw data files and not just the selective report generated from the raw data file. This request also includes a request for the database report from 90 days before the test in this case to the present. This data should be produced either on a floppy disc or a CD. 

19.	A copy of the operator's manual for the software used to collect, store, and manage data downloaded from the Intoxilyzer as well as to communicate with the machine remotely.

20.	An opportunity for the defense and defense experts to view, visually inspect, diagram and photographically record the Intoxilyzer machine used in this case as well as the area, and all immediately adjacent and adjoining areas, in which the machine used in this case is kept.  This specifically also includes all other electronic devices in the Intoxilyzer room, as well as adjoining (side, above or below) and nearby rooms (within approx. 100 feet) which may emit radio frequency interference, i.e., photocopying machines, radio transmitters, microwave ovens, computer terminals, etc. 

21.	A copy of the certificate authorizing the Intoxilyzer operator in this case to operate the Intoxilyzer used in this case. 

22.	A copy of the certificate authorizing the technical supervisor(s) to supervise the operator and machine in this case. 

23.	A copy of the any document certifying the Intoxilyzer used in this case, by serial number, and not just by brand or model, for use in the State of Texas. 

24.	A copy of any document or certificate authorizing the entity supervising, maintaining, or controlling the Intoxilyzer used in this case to conduct, have, or administer a breath alcohol testing program in the State of Texas.

25.	A copy of all rules and regulation governing the operation of the Intoxilyzer used in this case not otherwise published in the Texas Administrative Code or contained in a statute of this state.

26. 	The monthly technical supervisor activity reports submitted to DPS for 90 days before and after the date of the test in this case.  

27.	All MDT or “Mobile Data Terminal” logs by whatever name they may be known, of or relating in any way to the stop, investigation, detention, and arrest in this case.

28.	Any records relating to construction (including but not limited to electrical records (including power outages or surges), heating, ventilation, air conditioning records, etc.) for one year before and after the test in this case.

29.	A copy of the records generated by the calibration laboratory for the thermometer used to verify the proper operational temperatures for the intoxilyzer used in this case. This specifically includes all records relating to the handling and storage of said thermometer(s), documents proving NIST traceability, and calibration records for the thermometer on the reference simulator device used in this case. 

30.	A copy of any and all videos depicting the Accused in this case, including but not limited to, all police car dash cam videos, sally port videos, booking videos, and jail videos.

31.	A copy of the complete testing location inspection that was completed when the instrument that was used in this case was placed into, returned to, and/or removed from service at the testing location used in this case. 

32.	Any documentation relating to missing records, including but not limited to non-evidential test record data printouts generated from the database, written explanations from the operating describing the reason for the lost record, and any other actions taken by the technical supervisors in relation to the missing record(s) relating to the breath test operator in this case for one year before and after the test in this case.

33.	Any records relating to the approval, suspension or revocation by the scientific director of the reference sample device used for the test in this case and for two calibrations before the test in this case. Additionally, any records relating to the maintenance, calibration, and/or testing of the reference sample device used in the test in this case and for two calibrations before the test in this case.

It is therefore ORDERED that any evidence within the scope of the items granted above and as described in the attached motion be provided by the State to Defendant's attorney at his office, 1110 N. Loop 336 W. Suite 500, Conroe, Texas 77301, on or before 5 p.m. on the fifteenth day after the date of this order or by later date as contained in the body of the motion.
It is further ORDERED that this order is continuing and the State or its agent(s) will immediately make available to the Defendant's attorney any subsequent discoverable matter within the scope of the above granted items within 48 hours of the time it learns of or obtains such discoverable matter.
It is further ORDERED that any items herein not produced in violation of this order shall be and are excluded from evidence in this case if offered by the State.
	It is further ORDERED that testimony concerning the items not produced in violation of this order or the information contained in those items, including the Intoxilyzer test result in this case, shall be and are excluded from evidence in this case if offered by the State.
	It is further ORDERED that all orders herein for viewing, visual inspection, diagramming, and photographic recording are to occur during normal business hours at a mutually agreeable time, but in no event later than 15 business days after Defense counsel transmits this order to the law enforcement agency involved and specifically requests an agreeable time to view, visually inspect, diagram, and photographically record the items permitted in this order.

	It is further ORDERED that any law enforcement agency, or person or entity having a contract with such law enforcement agency, shall be allowed as a copy cost that amount, and only that amount, that would be allowable under the Texas Public Information Act for copying the documents required to be produced by this order.
	SIGNED AND ORDERED this       day of                 , 2013.

							____________________________                           
							JUDGE PRESIDING