Defense attorneys typically make several pretrial motions before a DUI / DWI case goes to trial. A pretrial motion is a formal legal request asking the court to take action on a particular issue. One pretrial motion that may be used in a drunk driving case is a request to access information in the arresting officer’s personnel file. 

Courts have repeatedly ruled that criminal defendants must have access any information that may aid in their defense. An arresting officer’s personnel file may support a defendant’s claim that the officer engaged in misconduct. Prior complaints may include excessive force, racial profiling, planting evidence, false arrest, discrimination or harassment, or criminal conduct on the part of the arresting officer.

Motions seeking access to an officer’s personnel file are most often made in an effort to support an allegation of officer dishonesty.  Complaints may include filing a false police report, using improper tactics, such as illegal methods of obtaining evidence, or physically abusing or threatening the defendant. 

A request to view an officer’s personnel file requires a hearing before the judge, because the court is required balance the defendant’s rights against the officer’s equally compelling interest in maintaining privacy.   

These types of motions can apply to all files maintained by a law-enforcement agency on the arresting officer. These may include citizen complaints, internal affairs investigations, and psychological medical records concerning the arresting officer.  However, the records the defense wishes to access must be related to the driver’s specific complaint.  For example, if a defendant is accusing the officer of filing a false police report, he or she would be unable to access records pertaining to complaints of excessive force.

The defense must serve a motion to access an officer’s records on the law enforcement agency that employs the officer. The motion will include a notice specifying which records are sought, a summary of the legal arguments supporting the request for disclosure, a declaration under oath (usually by the defendant’s attorney) outlining the defenses raised and the factual justification for disclosure, and a proposed order for the judge to sign. If excessive force is charged against the officer, a copy of the police report must also be attached. 

A hearing on a motion to view an officer’s personnel file occurs in two stages.  The court must first establish which records are subject to disclosure.  The judge will then review the records in question outside of the presence of the lawyers and defendant. 

The court will approve the motion only if the defendant has set forth specific facts that support the particular records requested.  A motion of this type must demonstrate good cause to be considered, but the legal standard for good cause is relatively low.  The defense must demonstrate only that police misconduct could or might have occurred. However, the court is not likely to grant access to outdated records, even if they involve the same type of misconduct alleged.