WINNING THE DUI CASE OFTEN OCCURS BEFORE THE TRIAL

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San Diego County Charge: Out of county resident charged with felony assault and battery involving multiple victims and great bodily and serious injuries Result: Verdict, Not Guilty on All 7 counts of Assault and Battery with Great Bodily Injury and Multiple Strikes.San Diego County Charge: 69 year old man driving under the influence of methamphetamine onto oncoming traffic Result: Hung Jury and District Attorney Dismissed DUI San Diego County Charge: Mother of two evading police in hit and run charge with serious bodily injury Result: District Attorney Dismissed after Successful Line-Up Motion San Diego County Charge: Juvenile charged with running over her ex boyfriend at high school Result: Court Dismissed case after Argument Made In Mitigation San Diego County Charge: Spouse arrested for domestic violence after 911 calls and pictures of serious bodily injury Result: District Attorney Dismissed at Trial San Diego County Charge: Military member arrested for assault and battery Result: Court Dismissed after successful argument for Military Diversion San Diego Federal Charge: 19-year-old student charged with Alien Smuggling Result: Case Dismissed after negotiations with US Attorney

San Diego County Charge: Out of county resident charged with felony assault and battery involving multiple victims and great bodily and serious injuries Result: Verdict, Not Guilty on All 7 counts of Assault and Battery with Great Bodily Injury and Multiple Strikes.San Diego County Charge: 69 year old man driving under the influence of methamphetamine onto oncoming traffic Result: Hung Jury and District Attorney Dismissed DUI San Diego County Charge: Mother of two evading police in hit and run charge with serious bodily injury Result: District Attorney Dismissed after Successful Line-Up Motion San Diego County Charge: Juvenile charged with running over her ex boyfriend at high school Result: Court Dismissed case after Argument Made In Mitigation San Diego County Charge: Spouse arrested for domestic violence after 911 calls and pictures of serious bodily injury Result: District Attorney Dismissed at Trial San Diego County Charge: Military member arrested for assault and battery Result: Court Dismissed after successful argument for Military Diversion San Diego Federal Charge: 19-year-old student charged with Alien Smuggling Result: Case Dismissed after negotiations with US Attorney

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Challenging stops, blood or breath results after PAS tests, roadblocks, and tolerance. In common law legal systems, a motion to suppress is a formal, written request to a judge for an order that certain evidence be excluded from consideration by the judge or jury at trial.

Careful motion practice plays a part in the overall strategy, attacking drunk driving tests. The walk-off home run motion, the suppression motion, seeks to exclude any evidence obtained from an illegal stop. This motion in essence attacks all drunk driving tests simultaneously by seeking to eliminate all of the tests from trial. Other motions attack only a particular test, for example, the preliminary alcohol screening device test, or the results of a blood test.

While the primary purpose of motions attacking drunk driving tests is to exclude the evidence from trial, there are also significant tangential benefits to filing motions. This is true even if the motion does not ultimately prove successful in accomplishing the primary purpose of exclusion.

A SMART ATTORNEY WILL FIGHT TO GET YOUR PAS TEST EXCLUDED

One of the more intriguing suppression motions in a drunk driving case is the motion to exclude a blood or breath test that was taken after the police had already given the suspected drunk driver a preliminary alcohol screening device test.

The United State Supreme Court has permitted the warrantless seizure of a blood test of a suspected drunk driver. [Schmerber v. California (1966) 384 U.S. 757.] In that case the court held that, given the metabolizing of alcohol in a person’s body, time did not permit the seeking of a search warrant. The urgency to obtain the blood sample created the exigent circumstances, which in turn eliminated the warrant requirement.

However, the point of this motion is that after obtaining a breath sample with a preliminary alcohol screening device test there are no exigent circumstances to justify a warrantless seizure by a subsequent blood or breath sample. (This argument if successful, will go leaps and bounds to help you win the case).

The lawfulness of the police taking a blood or breath sample after already having obtained a P.A.S. test is an issue that pervades drunk driving cases across America. It occurs, and reoccurs, perhaps dozens if not hundreds of times a night across the land. The issue is wrapped in fundamental principles of constitutional law. Sooner or later the United States Supreme Court will be called upon to decide the issue.

The simplicity behind the reasoning of the motion belies the strength in its argument. There is no easy reply to resist the logic behind the motion.

*NOTE: A judge doesn’t need to rule on a pretrial motion in limine before a trial begins. Sometimes judges wait until a trial starts to rule on the admissibility of evidence. A typical order in limine excludes the challenged evidence and directs counsel, parties and witnesses not to refer to the excluded matters during trial.