Welcome to our new weekly series, Friday Q&A. Each week our attorneys will respond to a question selected from the many received by direct and online submission. Have a question you want answered or topic you want to hear more about? Submit your suggestions to us by tweeting @TLOBJ or sending a message to our Facebook Page.

Question: My lawyer said that we are missing lab report information from my marijuana OVI case and so we will be filing a motion to compel discovery. If they don’t give us the lab reports will my charges be dismissed?

Answer: A motion to compel discovery in a criminal case is a formal request to the Judge on the case to intervene in the pretrial stage and order disclosure of evidence the government intends to use at trial. We previously explored what discovery is, but now the issue is that some piece of information that is being used to support the criminal charges has been withheld by the government. In the context of a marijuana OVI, lab reports should exist documenting the testing of the alleged marijuana (if any was seized) and documenting the testing of your blood, breath, or urine. Especially in an OVI case, analyzing both the type of testing used and the method applied by the lab technician conducting the testing to determine the level of marijuana in your system is a critical part of the defense investigation.

Improper testing technique, testing by an unqualified lab technician, or testing that reveals contamination in the sample are all possibilities in a case that relies on lab results. More importantly, the lab reports could reveal that there was no detectable marijuana in your system, meaning there are no facts that support a marijuana OVI charge. That is what is called “exculpatory evidence,” or evidence that tends to prove the defendant did not commit the crime as charged. You have a constitutional right to receive evidence that tends to prove you did do what you’ve been accused of from the government – that was decided by the United States Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963).

In Brady v. Maryland, the State prosecuted Brady and a co-defendant for murder. Brady admitted to participating in activities prior to the murder but asserted and maintained that the co-defendant had committed the actual killing. The State had a written confession from the co-defendant in which he took sole responsibility for the murder, but the prosecutors chose not to give Brady and his defense attorney the statement, and Brady, therefore, did not use the statement in his own defense at trial. Brady was convicted of murder.

On appeal, the United States Supreme Court found that withholding exculpatory evidence violates due process “where the evidence is material either to guilt or punishment.” The United States Supreme Court decided that even if the statement would not have made Brady innocent under Maryland law, the statement was material to the level of punishment Brady should have received. In the context of criminal law, “material” means important and relevant.

Ohio Criminal Rule of Procedure 16 regulates the exchange of discovery in a criminal case. Crim.R. 16(m) specifically provides for the timing of the demand for discovery (within 21 days of arraignment) and motion to compel discovery (three days after receiving discovery, or seven days before trial, whichever is earlier.) Depending on the nature of the discovery withheld and where you are in the timeline of your case, the failure to provide discovery, especially Brady discovery, can result in the Court ordering that the evidence that was withheld is not able to be used against the defendant at trial. In some cases, that may mean the government can no longer make its case at trial and result in a dismissal of the charges.