Monder Law Group - News
WINNING THE DUI CASE OFTEN OCCURS BEFORE THE TRIAL
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.