This motion is designed to:
- Preserve evidence for future testing by defense experts
- Remediate situations in which State testing will consume the entire sample
- Protect the client’s legal interests regarding the destruction of evidence
An order to preserve evidence should be sought at the outset of a case. Some preservation orders prohibit all testing or order labs to complete testing that is not within their protocols. I have drafted a sample motion that sets forth a procedure by which all parties provide input on how to move forward if lab testing will completely consume an evidence sample, thus preventing unnecessary delay in testing and protecting the defendant’s right to perform independent testing.
Attorneys can adapt this sample motion and order to their cases. If additional items not mentioned in this motion need to be preserved, those should be specified in the motion and order. When evidence will be consumed or destroyed during testing, the sample motion creates a procedure where both the defense and prosecution submit proposals to the court, with service to the lab, for how to proceed with the testing. The motion contains an appendix with ideas of how to move forward with testing if testing would consume the entire sample.
Here is a link to the motion and order.