CASE NUMBER: CR-2017-033362-B

STATE OF TEXAS	§	IN THE COUNTY COURT 	
	§		
vs.	§	AT LAW NUMBER TWO	
	§		
	§	DENTON COUNTY, TEXAS	
	
	MOTION FOR DISCOVERY AND INSPECTION – INTOXILYZER RECORDS

TO THE HONORABLE JUDGE OF SAID COURT:

	Now comes, _____________, Defendant in the above entitled and numbered cause, by and through undersigned counsel, and makes this Motion for Discovery and Inspection for Intoxilyzer Records, for the Intoxilyzer 9000 machine, Serial Number: 90-001782, for the Report Number: 1782000152, conducted on 02/25/2017, and respectfully moves this Court, pursuant to:

(A)	Article 39.14 of the Texas Code of Criminal Procedure;
(B)	The Due Process Clause of the 14th Amendment of the United States Constitution and Article I, §§ 13 and 19 of the Texas Constitution; and
(C)	The right of 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, for an order requiring the State’s attorney to produce and permit examination, inspection, and copying of the following items by the undersigned counsel, along with the Defendant and forensic experts employed by the Defendant:

     ______1. All audio and video electronic recordings, or still photographs which depict or contain purported conduct and conversations of the Defendant, witnesses, or police officers involved in this case regardless of whether the state does or does not intend to offer them at trial.
     ______2. The names and witnesses the State intends to call in its case in chief and rebuttal and any exculpatory evidence as to each above witness which is relative to that witness’s reputation for being untruthful.
     ______3. All evidence which would be exclusionary or mitigating at the guilt/innocence or punishment stage of the trial, such production to include any and all statements of all persons who the State does not plan to call as witnesses, but who have provided statements about this Defendant, whether written or oral, in this case.
     ______4. Evidence of any extraneous offenses. Such production to include evidence of any extraneous offense or act of misconduct which may be introduced by the Government at the time of this matter and which is alleged to have been committed by the Defendant.
     ______5. All character evidence sought to be admitted by the State during guilt/innocence and/or punishment phases of this case under Tex.R.Evid. 404(a)(b) and (c).
     ______6. The specific name of the State’s expert who will testify as a technical supervisor and will interpret the Intoxilyzer 9000 results. 
     ______7. A copy of all Intoxilyzer 9000 inspection, maintenance, and repair records from 60 days before and after the test in this case on the machine used in this case. In addition thereto, records concerning or relating to the last three quarterly inspections (including but not limited to any inspection by a Technical Supervisor), the last annual inspection prior to the test, and any quarterly or annual inspection subsequent to the test.
     ______8. A copy of the Intoxilyzer 9000 test result logs and a copy of all test slips for 60 days prior to the test and 60 days after the test on the machine used in this case. This should include any handwritten or electronic logs of the requested test slips.
     ______9. The exact date noted on the invoice relating to the initial purchase of the Intoxilyzer 9000 used in this test.
     ______10. Whether the warranty relating to the purchase of the Intoxilyzer 9000 used in this test is still valid and in effect with the manufacturer, CMI, Inc.
     ______11. Whether the warranty relating to the purchase of the Intoxilyzer 9000 used in this test has been invalidated in any form, way, or fashion due to any modification or tampering without the express permission of the manufacturer, CMI, Inc. 
     ______13. Whether there has been any invalidation with the warranty due to any unauthorized changes conducted without their written and expressed permission of the manufacturer, CMI, Inc.
     ______14. Whether an additional fee was purchased from the manufacturer, CMI, Inc. which has extended the initial one year warranty, which is sold generally for an amount of $125.
     ______15. A copy of all calibration logs and records on the machine used in this case for 60 days before and after the test in this case.
     ______16. A copy of the calibration protocol for the Intoxilyzer 9000 used in this case.
     ______17. A copy of the calibration protocol for the reference simulator used in conjunction with the Intoxilyzer 9000 used in this case.
     ______18. Any and all certificates of calibration for the Intoxilyzer 9000 and any other documents used to validate that compliance.
     ______19. Any and all certificates for calibration of the simulator solution(s) used during the Intoxilyzer 9000 calibration.
     ______20. Any and all certificates for calibration of the simulator solution(s) used during the calibration verification and/or Intoxilyzer 9000 instrument inspection.
     ______21. A copy of any and all Nataional Institute of Standards and Technology (NIST) certificates for any and all reagents or materials used in the preparation of the simulator solution in this case or the calibration of this Intoxilyzer 9000.
     ______22. Any and all Manufacture Certificates of Assurance for any Alcohol Reference Solution used for the control test at the time of the client’s breath test on the Intoxilyzer 9000.
     ______23. Any and all Manufacture Certificates of Assurance for any Alcohol Reference Solution used during calibration and/or verification of the Intoxilyzer 9000.
     ______24. For the Intoxilyzer machine listed above, all records concerning any checking or changing of the Alcohol Reference Solution from from 60 days prior to the test and 60 days after the test.
     ______25. Any and all documents resulting for any analysis conducted by the Texas Department of Public Safety on the Alcohol Reference Solution used for the control test completed on the client’s breath test. For the Intoxilyzer machine listed above, the complete maintenance history for all solutions used with this machine during the time period from 60 days prior to the test and 60 days after the test. Specifically, this item is asking for documentation regarding any and all solutions used in connection with this machine, and documentation regarding how the solutions have been maintained and calibrated.
     ______26. An opportunity for the defense and defense experts to view, visually inspect, and photographically record the Intoxilyzer 9000 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 9000 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.
     ______27. A detailed description of any repairs, changes, deletions, modifications, repairs, services, or adjustments, made to either the simulator or the Intoxilyzer 9000 used in this case for 1 year prior to this test and since this test. Said production to include all records, computer data, and memoranda of the repairs and the reasons therefore.
     ______28. A copy of the inspection protocol used on the Intoxilyzer 9000.
     ______29. An electronic copy of all data stored on and/or downloaded from the Intoxilyzer 9000 used in this case from 60 days prior to the test and to the present. This request specifically requests the raw data files and not just the selective report generated from the raw data file.
     ______30. A copy of the Intoxilyzer 9000 breath test operator manual used for the technical supervisor certification and re-certification.
     ______31. A copy of the Intoxilyzer 9000 breath test operator instructor manual used for the technical supervisor certification and re-certification.
     ______32. The proficiency and testing results of the breath test operator in this case.
     ______33. A copy of the CMI COBRA license agreement between CMI and the State of Texas for the Intoxilyzer 9000.
     ______34. The COBRA report data for all breath test and inspections conducted on the specific Intoxilyzer 9000 used in this case.
     ______35. The COBRA report data for all error messages generated by the Intoxilyzer 9000 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, and the Defendant has no other way to obtain said information, other than through this motion and an order from this court.
	2. The items requested are not privileged.
3. The matters requested are material and necessary for the preparation of the defense in this case.
4. Absent all of the requested discovery, Defendant’s rights under Article 39.14 of the Texas Code of Criminal Procedure, Article I, Section 10 of the Texas Constitution, and the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution will be violated and injured irreparably.
	WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays that this Honorable Court will grant this Motion for Discovery and Inspection for Intoxilyzer Records.
Respectfully submitted,

BY:  	
  Carl David Ceder
  State Bar No. 24062657
  701 East 15th Street, Suite 101
  Plano, Texas  75074
  214.702.2275 (OFC)
  214.206.9395 (FAX)
  Carl@CederLaw.com
  www.CarlCederLaw.com

  ATTORNEY FOR NICHOLAS PALLUGNA

Board Certified – Criminal Law 
Texas Board of Legal Specialization   

	

CERTIFICATE OF SERVICE
	By my signature above, I certify that on November 3rd, 2017, a true and correct copy of the above and foregoing document was served on the Denton County District Attorney’s Office by e-mail via e-filing. 

CASE NUMBER: CR-2017-033362-B

STATE OF TEXAS	§	IN THE COUNTY COURT 	
	§		
vs.	§	AT LAW NUMBER TWO	
	§		
NICHOLAS PALLUGNA	§	DENTON COUNTY, TEXAS	

ORDER FOR DISCOVERY AND INSPECTION - Intoxilyzer Records
	On this, the ______ day of _________________, 2017, the Court heard Defendant’s Motion for Discovery and Inspection of Intoxilyzer Records. and after due consideration of same, it is the Court’s opinion that said Motion should be GRANTED, AGREED, or DENIED as follows: 
1. GRANTED / AGREED / DENIED
2. GRANTED / AGREED / DENIED
3. GRANTED / AGREED / DENIED
4. GRANTED / AGREED / DENIED
5. GRANTED / AGREED / DENIED
6. GRANTED / AGREED / DENIED
7. GRANTED / AGREED / DENIED
8. GRANTED / AGREED / DENIED
9. GRANTED / AGREED / DENIED
10. GRANTED / AGREED / DENIED
11. GRANTED / AGREED / DENIED
12. GRANTED / AGREED / DENIED
13. GRANTED / AGREED / DENIED
14. GRANTED / AGREED / DENIED
15. GRANTED / AGREED / DENIED
16. GRANTED / AGREED / DENIED
17. GRANTED / AGREED / DENIED
18. GRANTED / AGREED / DENIED
19. GRANTED / AGREED / DENIED
20. GRANTED / AGREED / DENIED
21. GRANTED / AGREED / DENIED
22. GRANTED / AGREED / DENIED
23. GRANTED / AGREED / DENIED
24. GRANTED / AGREED / DENIED
25. GRANTED / AGREED / DENIED
26. GRANTED / AGREED / DENIED
27. GRANTED / AGREED / DENIED
28. GRANTED / AGREED / DENIED
29. GRANTED / AGREED / DENIED
30. GRANTED / AGREED / DENIED
31. GRANTED / AGREED / DENIED
32. GRANTED / AGREED / DENIED
33. GRANTED / AGREED / DENIED
34. GRANTED / AGREED / DENIED
35. GRANTED / AGREED / DENIED

Signed on _______________________.
							_______________________________
							HONRABLE JUDGE PRESIDING