Renewed Motions To Take Depositions

COMES NOW the Defendant, by and through his undersigned attorney, pursuant to Fla. R. Crim. P. 3.220(h)(1)(D), and respectfully renews his motion for an order to take the depositions of officers A and B, who are designated by the State as Category A witnesses, and in support thereof, states the following:

1. The Defendant was arrested on November 25, and charged with driving under the influence with damage and driving under the influence, which allegedly occurred on April 18.
2. Jury Selection in this matter is scheduled for September 30.
3. The State’s Discovery Exhibit listed the following Sheriff’s Officers, as Category A witnesses:
a. Officer A
b. Officer B
4. Officer A was the officer who initially responded to the scene of the accident and completed the crash investigation. He spoke with the alleged victim and the Defendant, and made observations of the Defendant at the scene of the accident.
5. Officer B arrived at the scene after Officer A, and made observations and spoke with the Defendant. She then made contact with the Defendant and spoke with him again at the hospital, where she read him his Miranda rights and interviewed him concerning the alleged crimes. She stated she advised him of Implied Consent and requested a blood sample. She later obtained a warrant for his arrest.
6. The Defendant’s blood alcohol content was below the legal limit of .08, and thus, he was not entitled to a DMV Administrative Review Hearing, and counsel did not have the opportunity to take the sworn testimony of the officers at such a hearing.
7. The DUI investigation was not video taped by either officer, so defense counsel has not had an opportunity to review the DUI investigation completed in this matter.
8. The Sheriff’s Office Operational Order 303, Subsection (E) provides the method for attorneys to discuss cases with officers as follows:
a. In misdemeanor and traffic cases, in lieu of appearing for a deposition an employee may be notified by Court Liaison to contact defense attorneys by telephone.

(1). Employees who have been contacted shall discuss the case with the defense attorney;

(2). If the employee is not comfortable with discussing the case with the defense attorney without first contacting the assistant state attorney handling the case, then the employee shall contact the assistant state attorney;

(3). After discussing the case with the assistant state attorney the employee shall contact the defense attorney; and

(4). Any employee contacted directly by an attorney, via mail or otherwise, for the sole purpose that the conversation will be in lieu of deposition, will call or email that attorney during the employee’s normal duty hours and leave a message notifying the attorney to contact them during the employee’s regular duty hours, or through the Court Liaison Office, if needed during off duty hours.
(emphasis added).
1. In compliance with Op. Order 303, on June 25, undersigned counsel attempted to reach Officer A and Officer B, by contacting the Court Liaison Office. Counsel requested a call from the officers within five business days, that is by July 2. A copy of the email sent to Court Liaison is attached as Exhibit A.
2. The officers did not contact defense counsel, as requested.
3. On July 5, the Assistant State Attorney offered to have the officers contact counsel. However, they did not do so.
4. On July 17, the Court denied defense counsel’s first Motion to Take Depositions.
5. On July 22, defense counsel obtained the officers’ email addresses and emailed each of them directly, asking them to contact her to discuss the case.
6. Attached as Exhibit B is a copy of the email counsel sent to Officer A on July 22. Officer A did not respond to the email, and has not contacted defense counsel.
7. A copy of the emails exchanged between defense counsel and Officer B on July 22, are attached as Exhibit C. In summary, Officer B stated she would only discuss the case with counsel, if she was subpoenaed for deposition. When defense counsel cited Op. Order 303, Officer B stated she would “contact the ASA handling this case.” Officer B has not contacted defense counsel since July 22.
8. Defendants are permitted to take the depositions of Category A witnesses without leave of court, as to any felony charges. Fla. R. Crim. P. 3.220(h)(1)(A). Although these are misdemeanor charges, the rationale entitling a defendant to depose witnesses has no less efficacy, simply because the incarceration exposure in a misdemeanor case is less than that of a felony.
9. Defense counsel cannot properly prepare for trial without speaking with or obtaining the testimony of Officer A and Officer B.
10. The taking of depositions, where the sworn testimony of the witness can be obtained in a neutral environment, is a proper vehicle to insure the independence of the criminal justice system.
11. These depositions will not only permit the defendant fair discovery, but will afford the State an opportunity to better and more closely evaluate this case and determine if a trial is necessary, thereby potentially saving the judicial resources of the Court.
12. Moreover, an accurate understanding of the testimony of the witness will enable the Defendant, the State, and the Court, to determine if the conduct alleged truly constitutes a violation of the statute alleged, and/or if the basis for the arrest was sufficient.
13. Out-of-court depositions of these witness may eliminate the need to further litigate the issues identified above, and may eliminate the need for a tedious suppression hearing and/or trial.
14. Therefore, in the interest of due process, fairness and judicial economy, it is respectfully submitted that “good cause” exists to support the request to take the depositions of Officer A and Officer B.
WHEREFORE, Defendant requests this Court enter an order finding the existence of good cause and grant this Motion to Take Depositions of Officer A and Officer B.