Pre-trial motions

• Author: Patrick T. Barone
• Pages: 453-824

PRE-TRIAL MOTIONS

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CHAPTER 5

PRETRIAL MOTIONS

§500 IN GENERAL

§510 MOTIONS IN LIMINE

§511 Disadvantages of Motions in Limine

§512 Timing and Form

§513 Admissions and Confessions in Drunk Driving Cases

§513.1 Admissions

§513.1.1 Personal Admissions

§513.1.2 Adoptive Admissions

§513.1.3 Foundation Requirements

§513.1.4 Vicarious Admissions

§513.1.5 Judicial Admissions

§513.2 Confessions

§513.2.1 Tactics for Dealing With Confessions

§514 Blood Alcohol Tests and the Unconscious Driver

§515 Sixth Amendment Waiver Does Not Require an Advisory on the Value of Counsel at the Plea Stage

§516 The Applicability of the Confrontation Clause to the

Admissibility of Chemical Evidence in Drunk Driving Cases

§516.1 Defendant Must Be Given an Opportunity to Cross-Examine

Affiant Re Testimonial Statements of Circumstances of Blood Draw

§516.2 Individuals Who Actually Tested Blood Not Required to Satisfy Right of Confrontation

§516.3 Applicability of Crawford and Melendez-Diaz to Breath Test Cases

§516.3.1 Substitute Breath Test Witness Violates Confrontation Clause

§516.4 Confrontation Clause Not Applicable to Police Video Recording

§516.5 Confrontation Clause and Driving With Suspended License

§516.6 Breath Test Logs: Not Testimonial and Admissible Under Business Records Exception

§520 MOTION TO STRIKE PRIOR CONVICTIONS

§521 The Basis for Attacking Prior Convictions

§521.1 Prior DUI Conviction Is an Essential Element When It Increases the Penalty and the Degree

§521.2 Collateral Attack of Prior DWI Conviction Where Change in Law Made Defendant Innocent

§521.3 Collateral Attack of Prior DWI Conviction Where Uncounseled Defendant

Given Incomplete Information About Benefits of Obtaining Legal Assistance

§521.4 Enhancement Using Out-of-State Conviction Requires Same or Nearly Same Elements

§522 Sentence Enhancement

§523 Federal Court Relief

§523.1 Petition for Writ of Habeas Corpus

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Defending Drinking Drivers 5-2

§524 Uncounseled Convictions and Sentence Enhancement

§524.1 Tribal Conviction May Be Used to Enhance State DUI Charge

§525 Disposition of Supervision Does Not Constitute Prior Conviction for Sentence Enhancement

§526 Apprendi and Prior Convictions: In Which Direction Is the Court Headed?

§526.1 Court’s Failure to Advise the Defendant of His Right to a

Jury Trial Results in Exclusion of a Prior Conviction

§526.2 Apprendi Applies to Drunk Driving Cases

§527 Waiver of Right to Counsel

§530 MOTIONS TO DISMISS

§531 Double Jeopardy

§531.1 Actual Jeopardy

§531.2 Multi-Jurisdictional Offense

§531.3 Multiple Prosecutions Stemming From One Incident

§531.3.1 Double Jeopardy Bars Trial on Greater Charge

after Successful Appeal from Conviction on Lesser Charge

§531.3.2 Double Jeopardy Precludes Conviction and

Sentence for both DUI and DUI Causing Death

§531.4 Separate Convictions When More Than One Injury

§531.5 Double Jeopardy Can Apply to Court Errors

§531.6 Double Jeopardy Does Not Attach Until Evidence Is Received

§531.7 Guilty Plea to Misdemeanor DUI Did Not Preclude Prosecution

for Felony Assault and Involuntary Manslaughter

§531.7.1 Conviction of Misdemeanor Failure to Yield

Precluded Prosecution for Felony DUI Causing Death

§531.8 Double Jeopardy and Civil Penalties, Forfeitures and License Suspensions

§531.9 License Suspensions as Remedial

§531.9.1 Consider Habeas Corpus Petitions

§531.9.2 Civil Forfeiture of Drunk Driver’s Vehicle Not

“Punishment” for Purposes of Double Jeopardy

§531.10 Refusing a Breath Test and Driving Under the Influence of Alcohol Are Distinct and

Separate Offenses; Double Jeopardy Does Not Apply

§531.11 No Double Jeopardy Violation in Prosecution for Driving While Intoxicated on

Military Base Following Disciplinary Measures

§531.12 Double Jeopardy Does Not Attach Where Bench Trial Is Continued Until a Later Date

§531.13 Double Jeopardy Does Not Bar Subsequent Trial Where Defendant’s Motion to

Dismiss Is Based on Prosecutorial Negligence.

§531.14 Death of Victim Does Not Provide Basis for Second Prosecution

§532 Collateral Estoppel

§532.1 Collateral Estoppel Distinguished From Double Jeopardy

§532.2 Use of Collateral Estoppel in Drunk Driving Cases

§532.2.1 Administrative Hearings

§532.2.2 Collateral Estoppel Did Not Bar State From Litigating a Motion to

Suppress Hearing on a Probable Cause Issue Where Issue Had Been

Decided Adversely at a Prior Administrative Suspension Hearing

§532.2.3 Collateral Estoppel Does Not Bar Re-Litigation of Probable

Cause Issues Previously Determined at Administrative Court

§532.3 Other Applications

§532.4 Collateral Estoppel and Prior Judicial Proceedings

§532.5 Collateral Estoppel Does Not Apply to Subsequent Administrative Hearings

§532.6 Factors to Consider in Determining Whether Collateral Estoppel May Apply

§532.7 “Acquittal” on Per Se Drunk Driving Charge May Require License Reinstatement

§532.8 Judicial Estoppel

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§532.9 Driving Under the Influence Charge Not Precluded by Double Jeopardy,

Res Judicata or Collateral Estoppel

§532.10 Lack of Suspicion for Stop Finding Made by Administrative Law Judge Does Not Bar

Prosecution for DWI Under Collateral Estoppel

§532.11 Criminal Court’s Ruling on Invalid Arrest Had No Collateral Estoppel Effect in Driver’s

License Revocation Proceeding

§532.12 State Is Collaterally Estopped From Re-Litigating Refusal Issue

§532.13 Collateral Estoppel Bars Admission of Breath Test Results in

Administrative Suspension Hearing

§533 Speedy Trial

§533.1 What Is an Unreasonable Period of Time?

§533.2 Dismissal Because of State’s Failure to Be Timely

§533.3 Delay Between Arrest and Filing of Complaint Does Not Warrant Dismissal

§533.4 New/Additional Counts Violated Speedy Trial Rights

§533.5 No Speedy Trial Violation Where Original Charging Instrument Gave

Defendant Adequate Notice of Subsequent Charges

§534 Denial of Access to Counsel

§534.1 The Right to Counsel Before Chemical Test

§534.1.1 Remedy

§534.2 The Right to Privacy

§534.2.1 Court Holds Farrell Standards Met

§534.2.2 Suspect Granted the Right to Counsel Cannot Be

Denied the Right to Meaningful Access

§534.2.3 Holland as Persuasive Reasoning for Right to

Counsel Before Submitting to Sobriety Tests

§534.2.4 Audiotaping Arrestee’s Conversation With Attorney Violates Ohio Statute

§534.2.5 Videotaping and Right to Counsel

§534.3 Knowing Waiver of Rights

§534.4 Right to Consult With Parents

§534.5 Interference With Right to Independent Testing

§534.5.1 Due Process Does Not Require the Police to Advise Drunk Driving

Suspect of Right to Obtain Independent Blood Test Before Submitting to

a Preliminary Breath Test (PBT)

§534.5.2 Trial Court Erred in Admitting Breath Test Where Defendant Denied

Opportunity for Independent Test

§534.5.3 Drunk Driving Arrestee Who Refuses to Submit to State’s BAC Test Has

No Right to Independent Test

§534.5.4 Suppression as Remedy Where Officer Dissuades Independent Test

§534.6 Due Process Analysis Requires Use of Telephone to Gather Evidence

§534.6.1 Drunk Driving Arrestee Has Right to Independent Test Even if He Refuses

to Submit to a Chemical Test

§534.7 Due Process Violation Occurs When BAC Results Are Offered in Evidence Where

Officer Affirmatively Mislead Driver

§534.8 Due Process Not Implicated by Government’s Refusal to Allow Independent Test

§534.9 Defendant Did Not Have Enforceable Cooperation Agreement With Prosecutor

§534.10 Statute Does Not Provide Absolute Right to Counsel

§535 Miranda Problems

§535.1 When Should Miranda Warnings Be Given?

§535.2 When Defendant Rates His Own Intoxication

§535.3 Right to Counsel Does Not Depend on Custody

§535.4 Some States Apply Broader Standard

§535.5 Miranda and Medical Treatment

§535.6 Unwarned Questioning May Be Allowed at Accident Scene

§535.7 Lack of Miranda Rights Leads to Suppression of Chemical and Field Sobriety Test Evidence