CAUSE NO: _____________
THE STATE OF TEXAS	 IN THE ___________ COURT 
V.	
_________________________	_________ COUNTY, TEXAS

MOTION FOR DISCOVERY OF BREATH TEST RECORDS
TO THE HONORABLE JUDGE OF SAID COURT:
	Defendant files this Motion for Discovery of Breath Test Records pursuant to United States Constitution, Amendments IV, V, and VI, Texas Constitution, Article I §§10, 19 and Article 39.14 of the Texas Code of Criminal Procedure and requests that the State produce the following items in the possession of the breath test technical supervisor and the Office of the Scientific Director of the Texas Department of Public Safety Breath Testing Laboratory:
 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 (OSD-TST-01 5.A ) for the Intoxilyzer used for the test in this case.
[This is being requested because its properly completed presence is a requirement of the Texas Breath Alcohol Testing Program as one can see from wthe SOGs. No time frames are included as there are no time intervals that regulate the information therein. In other words, there is no date range for the requirement for calibration or certification. It makes no sense to put a time limit on this request. If you put a date range on it, you will miss some calibration (espe­cially unsuccessful ones), and the only place you can get the Uncertainty for an instrument is through its Calibration. One may also miss situations where an instrument failed one or two (or passed but broke soon after), but the technical supervisor or the Department will give you that last one, the one that shows that it passed. In the past this information was simple to produce as they put all of these in one PDF file. If part of the new SOG change is that they no longer put all this in one PDF but can only print them individually, then the Department has created its own problem. If the State has chosen to make this more difficult for themselves by making it harder for them to provide this material, then no sense for the Department to be rewarded for this choice and defendants to be denied material discovery. It is not fair to the defendant if the Department uses the failure to properly maintain records as an excuse for failure to comply with discovery.]
 2.	An electronic copy of any and all items contained and maintained in the “Solution File” as required by the OSD-TST-01 5.B, for the Intoxilyzer solution used for the test in this case.
[This is being requested because its properly completed presence is a requirement of the Texas Breath Alcohol Testing Program as one can see from the SOGs. Once again, considering that a solution has a expiration date greater than 6 months means that the Solution Paperwork for the solution in the Solution File could easily be over 6 months old. Rather than put in a time frame that technically the solution is outside of, dispense with the time frame so one can be sure to get the solution paperwork for the solution that was used in the case, regardless of when that paperwork was completed. Once again, the solution paperwork is the only paperwork that furnishes you the uncertainty values for that solution. If the Department had a time frame for using solution (for instance, every inspection has to be a different solution lot) then 6 months would be more than enough of a time bracket. However since a technical supervisor can easily use the same solution for 2 years, 6 months or even a year is not enough time for discovery purposes.
	This information was online in PDF format. If DPS has chosen not to continue that practice and have chosen only to give paper copies in a digital world, the problem is with DPS and not the courts. The right of a defendant to evidence surrounding his case is not restricted by the fact that it may be difficult for the State has made it difficult for Itself to produce it. The Office of the Scientific Director has chosen to use NIST traceable solutions and the accompanying documentation. It can be scanned and maintained with assistance from the database with other documents such as the calibration certificates which are maintained in digital form.]
 3.	An electronic copy of any and all items contained and maintained in the “Subject File” as required by the OSD-TST-01 5.C, for the Intoxilyzer used for the test in this case.
[Choosing a date range is difficult as one does not necessarily know what date range is relevant until he/she views the electronic data. Six months before and after would encompass most of what is needed. This request is the same as the previous one in that it is a requirement of the Breath Testing Program to keep this information, and it is directly relevant to proving whether or not the instrument is working and/or the forensic scientists overseeing the program are competent.]
 4.	An electronic copy of any and all items contained and maintained in the “Maintenance File” as required by OSD-TST-01 5.D, for the Intoxilyzer used for the test in this case.
[The maintenance file has records that could indicate a calibration adjustment. Considering that the SOGs state that a calibration adjustment must be followed by a calibration (no reference to time frame), it is difficult to arrive at a time frame for discovery purposes. However the technical supervisors know their instruments, and they may choose to set a time limit that excludes relevant information. When I worked for the State, I scanned the documents in my area, Maintenance, Subject Files, Solution Files, Calibrations, and Certificates, and put them in PDFs, then put them in a folder for that Instrument. If anyone requested the items, I simply copied and pasted ALL the items in the folder to disk. It can be done easily.]
 5.	An electronic Copy of any and all Monthly Activity Reports for the technical supervisor area overseeing Intoxilyzer used for the test in this case as required by the OSD-TST-01 6.B.
[Monthly Activity Reports are not instrument specific, and culling out all instruments not used in this case from the report would be very tedious for someone, even the technical supervisor. The time frame should be 6 months before and after the test in this case. In most cases this request would encompass about 12 pieces of paper. This record documents when the time/date/download time and upload times that the technical supervisor sent to OSD to document his/her activity in regards to the minimum standards for some aspects of testing site supervision.]
 6.	An electronic copy of the full database report as provided by the Standard Operating Guidelines for Technical Supervisors OSD-TST-01 6.A for the Intoxilyzer used for the test in this case.
[It will be much easier to use a database export than a database report. The database export could simply be copied and pasted from the hard drive rather than having to print out several pages of text that would then need to be scanned and sent as electronic documents. This request is much easier if there are no restrictions as to time frame and instrument as it is much easier to copy and paste everything rather than to hunt for a specific time frame and instrument, thus creating complicated queries. The request is important not only due to its SOG requirement but also due to ISO 17025 5.9.1 (Short for International Organization for Standardization), which states: “The laboratory shall have quality control procedures for monitoring the validity of tests and calibrations undertaken. The resulting data shall be recorded in such a way that trends are detectable and where practicable, statistical techniques shall be applied to the reviewing of the results.” This task is easy with a database export, but it is not easy with hard copy subject records. Additionally, hard copy subject records do not have all of the information retrieved by the Intoxilyzer, most notably information gathered during Invalid Tests, which can be indicators that the Intoxilyzer is not working—something of particular interest to the Defense.]
 7.	An electronic copy of any and all Calibration Analyst Worksheets as required by the OSD-CAL-01 4.2 for the Intoxilyzer used for the test in this case.
[For most technical supervisors, this should be in the Instrument Certificate File (number one above), and this request should require no extra work for most technical supervisors. All arguments for this request are explained in number one above. This request is included as a separate item because some technical supervisors are culling the Calibration Analyst Worksheets from the Instrument Certificate File leaving Certificates but not the actual documentation of the work required to generate the Certificates.]
 8.	An electronic copy of any and all documents provided or required by the OSD-CAL-01 3.2.H relating to NIST traceability, unbiased estimate, nominal value, and combined uncertainty 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.
[This request is essentially the same as number 2 above except that it requests the solution paperwork for the solutions used to calibrate the instrument used in this case instead of the solution used in the test in this case. In addition is specifies emails. Besides the similarities in its importance that mimic number 2, this request is important in that the instrument was calibrated with these solutions, and this request is seeking the documentation that those solutions were in fact NIST traceable as the SOGs require. (Short for the National Institute of Standards and Technology, NIST is a non-regulatory federal agency within the U.S. Department of Commerce.) The time frame would include only the documents from the most recent calibration conducted prior to this test. The email request is made because the infection of certain solutions was announced via email.]
 9.	An electronic copy of the spreadsheets containing the documents referenced in OSD-CAL-01 4.2.K 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.
[This request should be included in the Instrument Certificate File (number 1), but some technical supervisors may cull these out. So this request is constructed to make sure that doesn’t happen in this case. The addition of emails to disclose correspondence between reviewer and person submitting paperwork, especially when things are not found to be in order.]
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 OSD-CAL-01 4.3 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.
[This item is exactly like number 9 above, but it is a different piece of the required paperwork that should be in the Instrument Certificate File (number 1). It may be culled out by some technical supervisors.]
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 OSD-CAL-01 4.4, documents sufficient to identify the technical supervisor who actually performs 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.
[Once again, this request is like numbers 9 and 10 in that it should already be included in number 1, the Instrument Certificate File, but some technical supervisors cull out the actual paperwork that is not a certificate. This request is to prevent them from culling that required piece of the calibration paperwork.]
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 OSD-CAL-01 6 for the Intoxilyzer used for the test in this case.
[This request is similar in nature and importance to number 8, but this requests the required NIST traceable paperwork for the thermometers used as opposed the solutions used. The time frame is from the most recent calibration conducted prior to this test.]
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.
[These items should be already included in number 4, the Maintenance File. However, some technical supervisors rationalize that emails documenting instrument problems and repairs do not count as “maintenance,” and they do not put them in the Maintenance File. This request is designed to make sure that those types of “maintenance/calibra­tion” items are included.]
14.	A copy of the AutoCal procedure applicable to the Intoxilyzer used for the test in this case.
[This item may or may not exist depending on the technical supervisor area and time of AutoCal in question. The time frame is the AutoCal done most recently before the test in this case. It is important if this item exists because it is the AutoCal that for lack of a better word sets the DVM voltages to correspond to the different solution values.]
15.	A copy of the protocol or instruction for the creation of the solutions used in the AutoCal procedure for the Intoxilyzer used for the test in this case.
[Much like item 14, this item may or may not exist depending on the technical supervisor area and time of AutoCal in question. The time frame is the AutoCal done most recently before the test in this case. It is important if it exists be­cause it is the AutoCal that for lack of a better word sets the DVM voltages to correspond to the different solution values, and this item would document what actual value those solutions were.]
16.	A copy of the protocol or instruction for the creation of the simulator solution used in the Intoxilyzer used for the test in this case.
[This may or may not exist based on the technical supervisor area and the date the solutions were made.]
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.
	[This may or may not exist based on the technical supervisor area and the date the solutions were made.]
18.	All longs, 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 specifically includes longs re­lat­ing to the use of the pure ethanol used to make the batch, AutoCal, ore 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.
[These items may or may not exist based on the technical supervisor area and the date the activity occurred.]
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.
[For solutions used on instruments in the field, this information would most likely already be included in item 2 above unless culled out by the technical supervisor. For AutoCal solutions, this may or may not exist based on the tech­ni­cal supervisor area and date the activity occurred.]
20.	A copy of the operator’s manual or instruction (and all documents reflecting, evidencing, or concerning procedures or instruction) 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 excludes any phone numbers and passwords.
[Most of the instructions for the use of the software are delivered via email.]
21.	All documents reflecting or documenting changes to EPROM programming and replacement of the EPROM (or any other programmable chip) used in the Intoxilyzer used for the test in this case.
[Changes to the EPROMs are maintained on one document, so this item is simple to provide. Documentation of the replacement of the actual EPROM used in the instrument used in this case, should already be included in the Maintenance File in item 4 above or in the database number 6 above.]
22.	A copy of the certificate authorizing the Intoxilyzer operator in this case to operate the Intoxilyzer used in this case.
[This request involves a regulatory requirement, and it should be easy to provide.]
23.	A copy of the certificate authorizing the technical supervisor(s) to supervise the operator and machine in this case.
[This request involves a regulatory requirement, and it should be easy to provide.]
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.
[This item involves a regulatory requirement, at least for non-DPS technical supervisor areas.]
25.	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.
[Sometimes directives from the Scientific Director are given out in PowerPoint presentations, memos, emails, etc. As “directives” they are requirements, like the SOGs, for technical supervisors.]
26.	All DPS annual Inspection Reports for one year before and after the test in this case.
[Technical supervisors are inspected at least once a year. This report will give the results of that inspection.]

	The defendant prays the this motion be set for a hearing at the earliest time prior to the trial of this case and that the Court will rule on each matter requested. 

Respectfully Submitted,

______________________
GEORGE SCHARMEN
315 Dwyer
San Antonio, Texas 78204
Telephone: 210-226-8021
Facsimile: 210-224-5722
State Bar No. 17727500

ATTORNEY FOR DEFENDANT

CERTIFICATE OF SERVICE
	I hereby certified that a true and correct copy of the foregoing Motion for Discovery of Breath Test Records has been faxed or hand-delivered/faxed to the office of the prosecuting attorney on this the ___ day of October, 20___.

____________________________
George Scharmen

CAUSE NO: _____________
THE STATE OF TEXAS	IN THE ___________ COURT 
V.	
_________________________	_________ COUNTY, TEXAS
ORDER
	On this the ______day of ___________, 20__, came on to be heard the Motion for Discovery of Breath Test Records filed on behalf of the Defendant by his counsel. 
	IT IS ORDERED that the defendant’s Motion for Discovery of Breath Test Records is hereby 
 1. GRANTED/DENIED   14. GRANTED/DENIED
 2. GRANTED/DENIED	15. GRANTED/DENIED
 3. GRANTED/DENIED	16. GRANTED/DENIED
 4. GRANTED/DENIED	17. GRANTED/DENIED
 5. GRANTED/DENIED	18. GRANTED/DENIED
 6. GRANTED/DENIED	19. GRANTED/DENIED
 7. GRANTED/DENIED	20. GRANTED/DENIED
 8. GRANTED/DENIED	21. GRANTED/DENIED
 9. GRANTED/DENIED	22. GRANTED/DENIED
10. GRANTED/DENIED	23. GRANTED/DENIED
11. GRANTED/DENIED	24. GRANTED/DENIED
12. GRANTED/DENIED	25. GRANTED/DENIED
13. GRANTED/DENIED

SIGNED and ORDERED ENTERED this the _____ day of ____________, 2014.

___________________________
JUDGE PRESIDING