IN THE DISTRICT COURT IN AND FOR TULSA COUNTY

STATE OF OKLAHOMA

THE STATE OF OKLAHOMA, )

)
Plaintiff, )
-vs- )
) No.
)
)
Defendant. ) JUDGE

MOTION TO ALLOW ISSUANCE OF SUBPOENA-DUCES TECUM FOR THE

INTOXILYZER 5000 BREATH TESTING MACHINE USED IN THIS CASE

Comes now Defendant, , by and through his attorney, Bruce Edge, and respectfully

moves this court to enter an order granting the Issuance of a Subpoena-Duces Tecum for the

Intoxilyzer 5000 breath testing machine used in this matter. Said request is based on the

following Statement of Facts, Memorandum of Law, and Supporting Declarations.

MEMORANDUM IN SUPPORT OF SUBPOENA-DUCES TECUM REQUEST

It is a long standing and well defined principle of Anglo-American jurisprudence that an

accused is entitled to use the full power of the government to obtain evidence and compel

testimony on his or her behalf. This principle, codified in the United States Constitution, in the

Sixth Amendment, has its history far deeper in time. Lord Bacon recognized that all subjects

must present their “knowledge and discovery” to the crown and the accused. Countess of

Shrewsbury Case, 2 How. St. Tr. 769 (1612). This principle, which has roots at least as far back
as 1562, was codified by 1742 when grand juries were recognized to have benefit of compulsory

process based on the common law theory that “the public has a right to every man’s evidence.”

12 T. Hansard, Parliamentary History of England 675 (1812).

All of these sources were recognized as supporting the Sixth Amendment, as shown in

Kastigar v. U.S., 406 U.S. 441 (1972). The Supreme Court went on to show that few limitations

on this right can or should be established, and even other certain Constitutional rights must give

way to this specific right. One year later, the Supreme Court revisited the right to subpoena

evidence in the landmark case, U.S. v. Nixon, 418 U.S. 683 (1973). In Nixon, the president of

the United States refused to honor a subpoena-duces tecum. The Commander in Chief asserted

that he was exempt from this process because of the nature of his office. The Court soundly

rejected this position. The Court stated that “the allowance of the privilege to withhold evidence

that is demonstrably relevant in a criminal trail would cut deeply into the guarantee of due

process of law and gravely impair the basic function of the courts.” Id. at 712.

The Court, noting many of the cases and histories cited above, held that even the

president must produce evidence pursuant to a legitimate subpoena, unless he can show national

security reasons for not doing so. (These must be reviewed by a court and shall not be taken at

face value.) Furthermore, the Court noted that any privilege asserted to prevent compliance must

be strictly reviewed, as “[l]imitations are properly placed upon the operation of this general

principle only to the very limited extent that permitting a refusal to testify or excluding relevant

evidence has a public good transcending the normally predominant principle of utilizing all

rational means for ascertaining the truth.” Id. at 711.

In sum, the Court noted that, “[t]he right to the production of all evidence at a criminal

trail has constitutional dimensions . . . [which] . . . [i]t is the manifest duty of the courts to

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vindicate . . . [requiring] all relevant and admissible evidence to be produced.” Id. See also U.S.

v. Nobles, 422 U.S. 225 (1974). “To ensure that justice is done, it is imperative to the function

of the courts that compulsory process be available for the production of evidence needed either

by the prosecution of the defense.” Id.

If the President of the greatest nation must therefore honor a subpoena from the lowliest

defendant, how then can this court sanction the refusal to produce evidence necessary for the

defense? The defense is merely requesting the right to defend.

The right to offer the testimony of witnesses, and to compel their

attendance, if necessary, is in plain terms the right to assert a defense, the

right to present the defendant’s version of the facts as well as the

prosecution’s to the jury so it may decide where the truth lies . . .. This

right is a fundamental element of due process of law.

Washington v. Texas, 388 U.S. 14 (1967). This right to compel witnesses and present evidence,

has been held so important that it can override duly enacted state laws, rules of evidence, or

virtually any rule which prevents the presentation of a complete defense. Id., Chambers v.

Mississippi, 410 U.S. 284 (1973), Crane v. Kentucky, 476 U.S. 683 (1986).

SUPPORTING DECLARATIONS

I, Bruce Edge, attorney of record in the above entitled case, hereby state the following

facts to be true and correct based upon the information and belief:

1. I am the attorney of record in said case and as such am fully familiar with the facts of

said case, including but not limited to, the police reports previously supplied by the

district attorney’s representative in this case;

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2. Based upon said police reports, which have been submitted by the officers under penalty

of perjury, the Defendant was subjected to a breath test by way of an Intoxilyzer 5000,

specifically number .

3. Attached hereto and incorporated herein by reference is the supplemental informal

request for discovery issued by my office with regards to this machine (Attachment A);

4. Attached hereto is the response by the prosecution (Attachment B);

5. Counsel needs to examine this machine prior to trial;

6. Furthermore, counsel needs to use said machine as evidence in the above captioned trial.

WHEREFORE, for the reasons set forth above, the Defendant prays this Honorable Court

to exercise its discretion and Issue an Order Allowing a Subpoena-Duces Tecum for the

Intoxilyzer 5000 used in this case.

Respectfully submitted,

_______________________
Bruce Edge OBA # 18697
Attorney for Defendant
717 S. Houston, suite 500
Tulsa, OK 74103
918-582-6333

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was delivered to
the District Attorney, Tulsa County on February 11, 2010.

________________________
Attorney for Defendant

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 Bruce Edge