motions in dui cases punch, don’t counter-punch!
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Motions In DUI CasesMotions In DUI Cases
Stephen F. WagnerStephen F. WagnerT.S.R.P. (Coastal Region)T.S.R.P. (Coastal Region)
wagners@co.monterey.ca.uswagners@co.monterey.ca.us
831-647-7975831-647-7975
Stephen F. WagnerStephen F. WagnerT.S.R.P. (Coastal Region)T.S.R.P. (Coastal Region)
wagners@co.monterey.ca.uswagners@co.monterey.ca.us831-647-7975831-647-7975
Motions in DUI CasesMotions in DUI CasesPunch, Don’t Counter-punch!Punch, Don’t Counter-punch!
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Funding for this program was provided by Funding for this program was provided by a grant from the California Office of Traffic a grant from the California Office of Traffic Safety, through the National Highway Safety, through the National Highway Traffic Safety AdministrationTraffic Safety Administration
Pretrial Motions and Going on the Pretrial Motions and Going on the offensive! offensive!
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General Considerations General Considerations Expanding and Limiting the Playing FieldExpanding and Limiting the Playing Field
Most of the trial motions deal with the Most of the trial motions deal with the admissibility of evidence and “admissibility” is admissibility of evidence and “admissibility” is directly linked to directly linked to relevancerelevance““Relevance” is directly linked to the prima facie Relevance” is directly linked to the prima facie or threshold elements of your DUI count(s) or threshold elements of your DUI count(s)
Understanding the rules of engagement right up Understanding the rules of engagement right up front is the key to both the bringing of the motion front is the key to both the bringing of the motion and opposing the motion – sounds simple, but and opposing the motion – sounds simple, but it’s missed all the time it’s missed all the time
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Begin your “Motions” Begin your “Motions” evaluation with evaluation with relevancerelevance
We know that some trial judges and We know that some trial judges and defense attorneys don’t understand the defense attorneys don’t understand the application of E.C. Section 352, right?application of E.C. Section 352, right?
How many times have we heard, “hey, How many times have we heard, “hey, that’s too damaging to my client!” that’s too damaging to my client!”
Keep a firm grip on E.C. Sections 210, 351 Keep a firm grip on E.C. Sections 210, 351 and 352 and NEVER let go! and 352 and NEVER let go!
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E.C. Section 210 and V.C. 23152(a)(b) E.C. Section 210 and V.C. 23152(a)(b)
E.C. 210: “Relevant evidence” means evidence E.C. 210: “Relevant evidence” means evidence relevant to the credibility of a witness or hearsay relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to declarant, having any tendency in reason to prove or disprove any disputed fact that is prove or disprove any disputed fact that is ofof consequenceconsequence to the determination of the action. to the determination of the action.
It pays to know what is “of consequence” in a It pays to know what is “of consequence” in a DUI case – this means knowing the elements of DUI case – this means knowing the elements of 23152(a)(b) like the back of your hand23152(a)(b) like the back of your hand
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23152(a) and CALCRIM 211023152(a) and CALCRIM 2110To prove that the defendant is guilty of this To prove that the defendant is guilty of this crime, the People must prove that:crime, the People must prove that:
1.1. The defendant The defendant drovedrove a vehicle; a vehicle;
ANDAND
2.2. When the defendant drove, the defendant was When the defendant drove, the defendant was under the influenceunder the influence of (an alcoholic beverage/[or] of (an alcoholic beverage/[or] a drug) [or under the combined influence of an a drug) [or under the combined influence of an alcoholic beverage and a drug].alcoholic beverage and a drug].
Remember that you will Remember that you will usuallyusually be relying on be relying on circumstantial evidence to prove these elements circumstantial evidence to prove these elements
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23152(b) and CALCRIM 211123152(b) and CALCRIM 2111
To prove that the defendant is guilty of To prove that the defendant is guilty of this crime, the People must prove that:this crime, the People must prove that:
1.1. The Defendant The Defendant drovedrove a vehicle; a vehicle;
ANDAND
2.2. When he drove, the defendant’s blood When he drove, the defendant’s blood alcohol level was alcohol level was 0.08 percent or more0.08 percent or more by weight,…[Rebuttable Presumption]by weight,…[Rebuttable Presumption]
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Say “No” to sloppy applications of 352Say “No” to sloppy applications of 352
The Rule:The Rule:
““The court in its discretion may exclude The court in its discretion may exclude evidence if its probative value is evidence if its probative value is substantially outweighedsubstantially outweighed by the probability by the probability that its admission will (a) necessitate that its admission will (a) necessitate undue consumption of time or (b) create undue consumption of time or (b) create substantial danger of undue prejudice, of substantial danger of undue prejudice, of confusing issues, or misleading the jury.”confusing issues, or misleading the jury.”
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Balancing Probative Value Balancing Probative Value v.v.
Undue PrejudiceUndue Prejudice
This is a big balancing act and often very This is a big balancing act and often very challenging for prosecutorschallenging for prosecutors
The challenge? It’s discretionary and The challenge? It’s discretionary and some prosecutors balk at making the some prosecutors balk at making the record and forcing some type of rationalerecord and forcing some type of rationale
The potential cure? Demand an accurate The potential cure? Demand an accurate definition of the term “prejudice” definition of the term “prejudice”
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““Prejudice” Defined Prejudice” Defined
In applying section 352, “prejudicial” is not In applying section 352, “prejudicial” is not synonymous with ‘damaging.’” synonymous with ‘damaging.’” People v. People v. Karis Karis (1988) 46 Cal. 3d 612, 638(1988) 46 Cal. 3d 612, 638
This relates to the slide #4 referenceThis relates to the slide #4 reference
The minute 352 is raised, call-up the real The minute 352 is raised, call-up the real elements/factorselements/factors
Use the language of 352 and the case law Use the language of 352 and the case law in order to set the boundaries in order to set the boundaries
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Case law on Probative ValueCase law on Probative Valuevs.vs.
Undue PrejudiceUndue Prejudice
People v. Ford People v. Ford (1964) 60 Cal. 2d. 772: (1964) 60 Cal. 2d. 772: The record must show court’s statutory The record must show court’s statutory duty was exercised.duty was exercised.
People v. Williams People v. Williams (1997) 16 Cal. 4(1997) 16 Cal. 4thth 153, 153, 213: This case is in the Bench Book 213: This case is in the Bench Book (Jefferson’s) and most TJ’s will know it (Jefferson’s) and most TJ’s will know it and use it. I call this the “no paper trail” and use it. I call this the “no paper trail” case,…here’s whycase,…here’s why
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People v. Williams, People v. Williams, cont.cont.
Key language from Key language from WilliamsWilliams: :
““A trial court need not expressly weigh A trial court need not expressly weigh prejudice against probative value, or even prejudice against probative value, or even expressly state that it has done so. All expressly state that it has done so. All that is required is that the record that is required is that the record demonstrate the trial court understood and demonstrate the trial court understood and fulfilled its responsibilities under EC fulfilled its responsibilities under EC section 352.” section 352.”
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Williams Williams and Discretion and Discretion
The The Williams Williams authority is what causes authority is what causes many prosecutors to go into retreat modemany prosecutors to go into retreat mode
Williams Williams seems to suggest that the party seems to suggest that the party opposing the 352 motion c/n insist on opposing the 352 motion c/n insist on documented rationale – NOT TRUEdocumented rationale – NOT TRUE
You must find a diplomatic way to get the You must find a diplomatic way to get the TJ to articulate his/her thought processTJ to articulate his/her thought process
Do not throw in the towel! Do not throw in the towel!
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You judge You judge The JudgeThe Judge
Is the TJ reaching out for guidance? V.J. Is the TJ reaching out for guidance? V.J. or just left a civil stint?or just left a civil stint?
Remember that the prejudice MUST BE Remember that the prejudice MUST BE SUBSTANTIAL – hold D/C’s feet to the fireSUBSTANTIAL – hold D/C’s feet to the fire
Avoid the “let’s see how it goes” ruling – Avoid the “let’s see how it goes” ruling – you want direction and clear rules of you want direction and clear rules of engagementengagement
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In Limine Motions In Limine Motions Written v. OralWritten v. Oral
Got time? Write it up! Got time? Write it up!
Often, one size fits all, so draft a stellar Often, one size fits all, so draft a stellar motion and use it as a templatemotion and use it as a template
Repeated issues: HGN and PASRepeated issues: HGN and PAS
Some things I’ve heard from TJ’s: The Some things I’ve heard from TJ’s: The written motion “shows commitment” and “I written motion “shows commitment” and “I like to see the law cited.” like to see the law cited.”
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Offense vs. DefenseOffense vs. DefensePAS and HGN PAS and HGN
Poll the attendees on the PASPoll the attendees on the PAS
Is PAS admissibility receiving mixed Is PAS admissibility receiving mixed treatment? treatment?
Are your judges letting it in for presence Are your judges letting it in for presence only? only?
Is your office policy/tactic to move it in for Is your office policy/tactic to move it in for both presence and the result? both presence and the result?
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Let’s get interactive and talk about thisLet’s get interactive and talk about this
Hypo: Assume that you are prosecuting a Hypo: Assume that you are prosecuting a 23152(a)(b) and that you want the PAS in 23152(a)(b) and that you want the PAS in for both presence and the result and your for both presence and the result and your TJ is leaning towards “presence only.” TJ is leaning towards “presence only.”
I know it depends on the facts, but let’s I know it depends on the facts, but let’s talk about some arguments in favor of talk about some arguments in favor of “presence plus result.” “presence plus result.”
Start with the basicsStart with the basics
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PAS FOR PRESENCE AND RESULTPAS FOR PRESENCE AND RESULT
Cal. Const. Art.1, Section 28, subd. (d)Cal. Const. Art.1, Section 28, subd. (d)
Evid. Code Section 351Evid. Code Section 351
1.1. It’s the test given closest to the time of It’s the test given closest to the time of driving and “impaired driving” is the driving and “impaired driving” is the offenseoffense
2.2. The PAS blow registered 0.09 and the The PAS blow registered 0.09 and the next test (blood or breath) registered next test (blood or breath) registered 0.08 0.08
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Don’t let the defense cut you off at the PASDon’t let the defense cut you off at the PAS
The admissibility challenge to the PAS is The admissibility challenge to the PAS is made via EC Section 402 in limine motionmade via EC Section 402 in limine motion
Why let the D be the moving party? You Why let the D be the moving party? You reach it offensively in YOUR MOTIONreach it offensively in YOUR MOTION
Advantages: you bombard the court with Advantages: you bombard the court with the overwhelming amount of authority the overwhelming amount of authority supporting PAS admissibility – you get supporting PAS admissibility – you get there first! there first!
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EC Section 402 and PAS Admissibility EC Section 402 and PAS Admissibility
Any challenge to admissibility may be Any challenge to admissibility may be made in an EC Section 402 in limine made in an EC Section 402 in limine motion. To justify the admission in motion. To justify the admission in evidence of the results of the PAS test, the evidence of the results of the PAS test, the prosecution will be required to prosecution will be required to demonstrate that it will pass demonstrate that it will pass People v. People v. Williams Williams scrutinyscrutiny
EC 405 is also applicableEC 405 is also applicable
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Why let this develop like a challenge?Why let this develop like a challenge?
Instead of waiting to be challenged by the Instead of waiting to be challenged by the defense, come out firing in your motion in defense, come out firing in your motion in limineliminePreemptive strike valuePreemptive strike valueHas the benefit of undermining defense Has the benefit of undermining defense claims/argumentsclaims/argumentsLet’s take a look at the sample PAS Let’s take a look at the sample PAS motions and get the rhythm of the motions and get the rhythm of the argument down argument down
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Prep/Inform your OfficerPrep/Inform your Officer
If your going to 402 or 405 hearing, your officer If your going to 402 or 405 hearing, your officer is the star witness – it is a quality control hearing is the star witness – it is a quality control hearing and your officer needs to know the drilland your officer needs to know the drill
Work through the Work through the Adams Adams foundational foundational prerequisites prerequisites
Your officer does not need to lead a science Your officer does not need to lead a science class on fuel cell technology – the basic class on fuel cell technology – the basic workings of the PAS instrument is enoughworkings of the PAS instrument is enough
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Adams Adams Foundation cont. Foundation cont.
The question of whether the PAS was in The question of whether the PAS was in working order (prong 1) can lead to an working order (prong 1) can lead to an issue of calibration and maintenance of issue of calibration and maintenance of the instrument – this may mean calling the instrument – this may mean calling more than one witness (agencies vary)more than one witness (agencies vary)
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HGN – See Sample Motion HGN – See Sample Motion
Highlight al the factors pointing to Highlight al the factors pointing to admissibilityadmissibility
The The NHTSA NHTSA endorsementendorsement
The studiesThe studies
Let’s track the head notes/arguments in Let’s track the head notes/arguments in the sample motionthe sample motion
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ENDEND
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