Defense attorneys may decide to make a motion for independent testing of forensic evidence in cases where either the State has chosen not to complete forensic testing of an item of evidence or where the State has tested the item and the defense would like it to be re-tested. This issue has come up more frequently in recent DWI cases where the State has elected to proceed on an “appreciable impairment” theory rather than waiting to have the blood sample tested by the State Crime Lab.
Failure to include necessary information in a motion and order for independent testing can result in delays as the evidence custodian attempts to determine how to comply with the court order that lacks information needed to ship the item of evidence to the independent laboratory. In an attempt to ensure that the necessary information is included in a motion and order for independent testing, I have drafted a sample motion and order that attorneys can adapt to their cases. Assistant Attorney General Joy Strickland has been provided an opportunity to review it and make suggested changes. Here is a link to the motion and order.