Dui motions
| Author | Don Bartell/Mary Catherine McMurray/Anne ImObersteg |
| Pages | 453-524 |
18-1
CHAPTER 18
DUI MOTIONS
I. GENERAL POINTS
§18:01 Motion Practice
§18:02 Tangential Benefits to Motions
II. WRITING SUGGESTIONS
§18:10 Why We Write
§18:11 Sentences and Symphonies
§18:12 Adverbs: The Road to Hell
§18:13 Dealing with Deadlines
§18:14 Proper Use of id. and ibid.
§18:15 Footnote Citations
§18:16 Proper Use of an Ellipsis
§18:17 Pronouns - Use Them, but Do Not Overuse Them
III. MOTIONS
A. Demurrer to Complaint
§18:30 Complaints Must Specify the Unlawful Act
§18:31 Sample Demurrer
§18:32 Sample Points & Authorities in Support of Demurrer
B. Speedy Trial
§18:40 Sample Motion to Dismiss for Denial of Speedy Trial
§18:41 Sample Points and Authorities in Support of Motion to Dismiss for Denial of Speedy Trial
§18:42 Sample Petition for Writ of Mandamus Following Denial of Speedy Trial Motion
§18:43 Sample Memorandum of Points and Authorities in Support of Petition for Writ of Mandamus
Following Denial of Speedy Trial Motion
C. Speedy Probation Violation Hearing
§18:50 Sample Motion to Dismiss Probation Violation for Denial of Due Process
§18:51 Sample Points and Authorities in Support of Motion to Dismiss Probation Violation
D. Suppression Motions Based on an Illegal Stop
§18:60 Successfully Challenging the Stop Is Generally the Most Beneficial Suppression Motion
§18:61 Case Examples Regarding Weaving
§18:62 Sample Suppression Motion: Illegal Stop
§18:63 Sample Points and Authorities in Support of Suppression Motion: Illegal Stop
E. Suppressing Blood Tests
§18:70 Sample Motion to Suppress All Evidence Including Blood Test Results
DUI MOTIONS
Attacking and Defending Drunk Driving Tests 18-2
DUI MOTIONS
§18:71 Sample Points and Authorities in Support of Motion to Suppress All Evidence Including Blood Test
Results
§18:72 Sample Brief: Good Faith Exception Not Applicable on Issue of Consent
F. Challenging Roadblocks
§18:80 Prosecution Must Establish Lawfulness of Roadblock
§18:81 Sample Operational Order for Field Officers
§18:82 Sample Checkpoint Guide for Field Officers
§18:83 General Crime Fighting Is Not an Acceptable Justification
§18:84 Drafting the Motion
§18:85 Sample Motion Challenging a Drunk Driving Checkpoint
G. Suppressing a Blood or Breath Test After a Preliminary Screening Device Test
§18:90 Taking a Preliminary Alcohol Screening Device Test Removes Exigent Circumstances
§18:91 Sample Points and Authorities to Suppress a Blood [or Breath] Test
H. Suppressing Chemical Test Results for Lack of Choice
§18:100 Denial of Choice of Test
§18:101 Sample Points and Authorities to Exclude Chemical Test Results Due to the Denial of Choice of Test
I. Striking Prior Convictions
§18:110 Plea Documents from Prior May Reveal Constitutional Defects
§18:111 Sample Motion to Declare Prior Conviction Invalid
§18:112 Sample Points and Authorities in Support of Motion to Declare Prior Conviction Invalid
J. DUI Applications of Miranda
§18:120 Roadside Questioning
§18:121 What Constitutes DUI Testimonial Statements
§18:122 Sample Motion in Limine to Suppress Defendant’s Statements
K. Prohibiting Prosecution Efforts to Minimize Reasonable Doubt Standard
§18:130 The Improper “Take Responsibility” Argument
§18:131 Sample Motion in Limine to Exclude Prosecution from Minimizing Reasonable Doubt Standard
L. Excluding Claims of Tolerance
§18:140 Prosecutors Often Claim Tolerance with No Foundation
§18:141 Sample Motion in Limine to Exclude Evidence of Tolerance
M. Prohibiting Questioning of Officer on Number of Investigations versus Number of Arrests
§18:150 Sample Motion in Limine to Exclude Improper Character Evidence
N. Introducing Partition Ratio Evidence
§18:160 Look for the Opportunity to Introduce Partition Ratio Evidence
§18:161 Anticipate Strong Opposition
§18:162 Sample Motion to Introduce Partition Ratio Evidence When Defendant’s Credibility Attacked
§18:163 Sample Motion in Limine to Introduce Partition Ratio Evidence Motion on the Generic DUI Charge
O. Limiting Horizontal Gaze Nystagmus Test
§18:170 Limit the Test to Evidence of an Indication of Intoxication
§18:171 Sample Motion Limiting the Use of the Horizontal Gaze Nystagmus Test
P. Motion in Limine Regarding Calibration Check Records
§18:180 Confrontation Clause Requires Live Testimony
§18:181 Sample Motion Objecting to Introduction of Calibration Check Records without Live Testimony
Q. Objecting to Three Hour Presumption Jury Instruction
§18:190 Three Hour Presumption Jury Instruction Should Never Be Given
§18:191 Sample Objection to the Three Hour Presumption
R. Request to Dismiss af ter Hung Jury
§18:200 Sample Memorandum of Points and Authorities in Support of Request to Dismiss after Hung Jury
S. Motion for New Trial
§18:210 Sample Memorandum of Points and Authorities in Support of Motion for New Trial
T. Motion to Exclude Uncer tainty Calculation
§18:220 Sample Memorandum of Points and Authorities in Support of Motion to Exclude Uncertainty
Calculation
18-3 DUI Motions §18:12
DUI MOTIONS
I. GENERAL POINTS
§18:01 Motion Practice
Careful motion practice plays a part in the overall
strategy in defending drunk driving cases. A successful
motion can bar the introduction of a defendant’s state-
ment, or strike an unlawfully obtained prior conviction.
due to an unlawful detention prohibits the use of any
evidence obtained after an unlawful stop.
This chapter explores the primary motions used in
some writing suggestions to the harried and hurried lawyer.
§18:02 Tangential Benefits to Motions
While the primary purpose of motions is usually to
if the motion does not ultimately prove successful in
accomplishing the primary purpose of exclusion.
Some of the peripheral benefits that may be
achieved by a suppression motion are:
• Discovery.
• Creating a record for appeal on an issue.
cases. [Filing a suppression motion will give
you an opportunity to make courtroom contact
with the prosecutor. This contact may lead to
movement in an otherwise intractable case, even
with an unsuccessful motion. The movement
may be positive or negative—but the motion
creates the opportunity for movement. See
Chapter 20, Coordinating the Attack in Trial.]
• It can also showcase your skill to the oppos-
ing counsel. This may change the settlement
dynamics in a case.
[§§18:03-18:09 Reserved]
II. WRITING SUGGESTIONS
§18:10 Why We Write
The only reason one writes is for the reader. This is
true whether you are scribbling in a diary, or drafting a
petition for certiorari. This guiding principle as to why
one writes should govern all of your legal writing. Make
your briefs inviting, interesting and above all else, read-
able. Which is more inviting - a massive single-spaced
quote in a brief, or a quote that makes the same point in
two or three lines? Which is more readable, a brief that
is littered with bold lettering, or a brief where the key
points are occasionally accented with italics? If you are
mindful of the fact that the only reason one writes is for
the reader, the answers to the preceding questions, and
a host of other writing problems, become much easier
turn leads to winning motions.
some of her favorite writing tips, covering some of the
most common writing problems for attorneys. The tips
are meant to help lawyers who write briefs in the real
world - which means, in the world of deadlines. Before
turning you over to Lara, I pass along one of my own
favorite writing tips, a tip concerning how vital it is to
have someone edit your writing. Unless you are William
Shakespeare, everyone needs an editor.
§18:11 Sentences and Symphonies
“It’s none of their business that you have to learn
to write. Let them think you were born that way.”
— Ernest Hemingway
Like a good symphony, good sentences end with
a crescendo. In the English language, the end of a sen-
tence holds the emphasis. When writing a sentence,
place the words that make your point at the end.
Suppose you want to make the point that on a
instructions. One might write:
The ocer gave the wrong instructions for the
Walk and Turn test.
Or
The instructions the ocer gave for the Walk and
Turn test were wrong.
In the second example, placing the word wrong at
In the haste of real life legal writing, there is an
easy way to avoid composing some sentences with mis-
placed emphasis. Try not to end a sentence with a date
or a name. Rarely do dates or names hold the intended
dates and names go at the beginning of a sentence, or in
the middle. A symphony’s crescendo lies at the ... end.
§18:12 Adverbs: The Road to Hell
“I believe the road to hell is paved with adverbs.”
— Stephen King,
On Writing: A Memoir of the Craft
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