No. ___________

The State of Texas	§	In the County Court
	§
V.	§	At Law No. 
	§
       	§	Harris County, Texas

	Motion for Discovery of
	DWI Breath Test Case Documents
To the Judge of the Court:
	Defendant, through the undersigned counsel, moves this Court to  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, which provides:
A breath specimen taken at the request or order of a peace officer must be taken and analyzed under rules of the department by an individual possessing a certificate issued by the department certifying that the individual is qualified to perform the analysis.

.	Defendant seeks an order requiring the State's attorney and the State's agents, including the Texas Department of Public Safety, 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.	An electronic copy of any and all items contained and maintained in the “Instrument Certificate File,” as required by the “Standard Operating Guidelines for Technical Supervisors” (SOG’s) § 2.1, for the Intoxilyzer used for the test in this case. 
	2.	An electronic copy of any and all items contained and maintained in the “Solution File,” as required by the “Standard Operating Guidelines for Technical Supervisors” (SOG’s) § 2.2, for the Intoxilyzer used for the test in this case.
	3.	An electronic copy of any and all items contained and maintained in the “Subject File,” as required by the “Standard Operating Guidelines for Technical Supervisors” (SOG’s) § 2.3, for the Intoxilyzer used for the test in this case.
	4.	An electronic copy of any and all items contained and maintained in the “Maintenance File,” as required by the “Standard Operating Guidelines for Technical Supervisors” (SOG’s) § 2.4, for the Intoxilyzer used for the test in this case.
	5.	An electronic copy of any and all Monthly Activity Reports, as required by the “Standard Operating Guidelines for Technical Supervisors” (SOG’s) § 3.2, for the Intoxilyzer used for the test in this case.
	6. An electronic copy of the full database report, as provided by the “Standard Operating Guidelines for Technical Supervisors” (SOG’s) § 4.5, for the Intoxilyzer used for the test in this case.
	7.	An electronic copy of any and all “Calibration Analyst Worksheets,” as required by the “Standard Operating Guidelines for Technical Supervisors” (SOG’s) § 5.3, for the Intoxilyzer used for the test in this case
	8.	An electronic copy of any and all documents provided or required by the “Standard Operating Guidelines for Technical Supervisors” (SOG’s) § 5.3.1.1, relating to NIST traceability, unbiased estimate, nominal value, and combined uncertainly of the reference solutions used to perform instrument calibrations on the Intoxilyzer used for the test in this case. Documents includes items that are maintained either in paper or electronic form and specifically includes emails.
	9.	An electronic copy of the spreadsheets containing the documents referenced in “Standard Operating Guidelines for Technical Supervisors” (SOG’s) § 5.3.5 that were submitted for technical and administrative review related to the Intoxilyzer used for the test in this case. Documents includes items that are maintained either in paper or electronic form and specifically includes emails.
	10.	An electronic copy of any and all “Technical and Administrative Review Checklists,” for the documents in item 9 above,  as well as documents sufficient to identify the reviewing Technical Supervisor,  as required by the “Standard Operating Guidelines for Technical Supervisors” (SOG’s) § 5.4, for the Intoxilyzer used for the test in this case.  Documents includes items that are maintained either in paper or electronic form and specifically includes emails.
	11.	In any instance in which the Technical Supervisor who issued the Calibration Certificate was not the Technical Supervisor who performed the calibration, as provided in   “Standard Operating Guidelines for Technical Supervisors” (SOG’s) § 5.5, documents sufficient to identify the Technical Supervisor who actually performed the calibration on the Intoxilyzer used for the test in this case.  Documents includes items that are maintained either in paper or electronic form  and specifically includes emails.
	12.	An electronic copy of any and all items and reports reflecting or evidencing calibration of the NIST traceable thermometers by an approved vendor during the instrument calibration procedure, as required by the “Standard Operating Guidelines for Technical Supervisors” (SOG’s) § 6.1.3, for the Intoxilyzer used for the test in this case. 
	13.	Any and all documents reflecting, evidencing, or concerning communications between any Technical Supervisor having authority over the Intoxilyzer used for the test in this case and any other person or entity relating to calibration, maintenance, repair, or operation of the  Intoxilyzer used for the test in this case.  Documents includes items that are maintained either in paper or electronic form  and specifically includes emails.
	14.	A copy of the AutoCal procedure applicable to the Intoxilyzer used for the test in this case.
	15.	A copy of the protocol or instructions for the creation of the solutions used in the AutoCal procedure for the Intoxilyzer used for the test in this case.
	16.	A copy of the protocol or instructions for the creation of the simulator solution used in the Intoxilyzer used for the test in this case.
	17.	A copy of any and all certifications, confirmations or verifications from any source for the AutoCal and simulator solutions that were used in relation to the Intoxilyzer used for the test in this case.
	18.	All logs, records, or other documents reflecting or concerning the use or consumption of all solutions used in relation to the AutoCal and simulator solutions used in the Intoxilyzer in this case.  This also specifically includes logs relating to the use of the pure ethanol used to make the batch, AutoCal, or reference solutions used in the Intoxilyzer used for the test in this case.  Documents includes items that are maintained either in paper or electronic form  and specifically includes emails.
	19.	All logs, records, or other documents reflecting the expiration date of the pure ethanol used to create any AutoCal or reference solutions in relation to the Intoxilyzer used for the test in this case.  Documents includes items that are maintained either in paper or electronic form  and specifically includes emails.
	20.	A copy of the operator's manual or instructions (and all documents reflecting, evidencing, or concerning procedures or instructions) for the software used to collect, store, and manage data downloaded from the Intoxilyzer as well as to communicate with the machine remotely.  Documents includes items that are maintained either in paper or electronic form  and specifically includes emails.  This specifically excludes any phone numbers and passwords.
	21.	All documents reflecting or documenting changes to the EPROM programming and replacement of the EPROM (or any other programmable chip) used in the Intoxilyzer used for the test in this case.
	22.	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. 
	23.	A copy of the certificate authorizing the Intoxilyzer operator in this case to operate the Intoxilyzer used in this case.
	24.	A copy of the certificate authorizing the technical supervisor(s) to supervise the operator and machine in this case.
	25.	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.
	26.	A copy of all policies governing the operation of the Intoxilyzer used in this case not otherwise published or contained in the Texas Administrative Code, a statute of this state, or contained in the “Standard Operating Guidelines for Technical Supervisors.” 
	27.	 All DPS annual Inspection Reports for one year before and after 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, 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 items 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 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 will be violated to his irreparable injury and thus deprive the Defendant of a fair trial.
	WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays that this motion be granted in its entirety.

								Respectfully submitted,

								SCHNEIDER & McKINNEY, P.C.

								                        
								W. Troy. McKinney
								T.B.C. No. 13725020
								440 Louisiana
								Suite 800
								Houston, Texas 77002
								713-951-994
								713-224-6008 (fax)

								ATTORNEY FOR DEFENDANT

	CERTIFICATE OF SERVICE

	This is to certify that a true and correct copy of the attached and foregoing document has been served on the Harris County District Attorney's Office by sending a copy to 1201 Franklin, Suite 600, Houston, Texas 77002 on this      day of August, 2011.

								W. Troy McKinney

	NO. _________________

THE STATE OF TEXAS	§	IN THE COUNTY COURT
	§
V.	§	AT LAW NO. _______
	§
        	§	HARRIS 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 should GRANTED or DENIED as follows,

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

			              	GRANTED	               DENIED

	2.	A copy of all records concerning or relating to the last three quarterly inspections, the last annual inspection prior to the test in this case, and any quarterly or annual inspection subsequent to the test in this case.

			              	GRANTED	               DENIED
		                                                         		                                                         
	3.	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.
			              	GRANTED	               DENIED
		                                                         		                                                         	4.	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 or 100 test before or after, whichever is greater.  This report should contain all fields that are available for inclusion in the report and no fields or data should be excluded.

			              	GRANTED	               DENIED

	5.	An 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.

			              	GRANTED	               DENIED

	6.	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.

			              	GRANTED	               DENIED

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

			              	GRANTED	               DENIED

	8.	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.

			              	GRANTED	               DENIED

	9.	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.

			              	GRANTED	               DENIED

	10.	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.

			              	GRANTED	               DENIED

	11.	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.

			              	GRANTED	               DENIED

	12.	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.

			              	GRANTED	               DENIED

	13.	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.

			              	GRANTED	               DENIED

	14.	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.

			              	GRANTED	               DENIED

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

			              	GRANTED	               DENIED

	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 or calibration solutions, the batch solution, the calibration solution, and the reference solution used in the Intoxilyzer in this case.

			              	GRANTED	               DENIED

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

			              	GRANTED	               DENIED

	18.	An electronic copy of all 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 data should be produced either on a floppy disc or a CD.
			              	GRANTED	               DENIED

	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.

			              	GRANTED	               DENIED

	20.	A copy of the software used to collect, store, and manage data downloaded from the Intoxilyzer as well as to communicate with the machine remotely.

			              	GRANTED	               DENIED

	21.	A copy of the software used to program the EPROM chip (or any EPROM or other chip) in the Intoxilyzer used for the test in this case.

			              	GRANTED	               DENIED

	22.	All documents reflecting or documenting changes to the EPROM programming for the EPROM (or any other programmable chip) used in the Intoxilyzer for the test in this case.

			              	GRANTED	               DENIED

	23.	A copy of the source code used to program the Intoxilyzer used in this case.

			              	GRANTED	               DENIED

	24.	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. 

			              	GRANTED	               DENIED

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

			              	GRANTED	               DENIED

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

			              	GRANTED	               DENIED

	27.	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.

			              	GRANTED	               DENIED

	28.	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.

			              	GRANTED	               DENIED

	29.	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.

			              	GRANTED	               DENIED

	30.	All DPS annual Inspection Reports for one year before and after the test in this case.

			              	GRANTED	               DENIED

31.	The instrument data transfers from the machine used in this case for 90 days before and after the test in this case. 

			              	GRANTED	               DENIED

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

			              	GRANTED	               DENIED

     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, 440 Louisiana, Suite 800, Houston, Texas 77002, on or before 5 p.m. on the tenth day after the date of this order.
     It is further ORDERED that this order is continuing and the State 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, diagraming, and photographic recording are to occur during normal business hours at a mutually agreeable time, but in no event later than 10 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                .

							                             
							JUDGE PRESIDING