How the best lawyers consistently win DUI cases – Lesson 4

From Attacking and Defending Drunk Driving Tests by Donald Bartell

 

Challenging stops, blood or breath results after PAS tests, roadblocks, and tolerance

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.

§18:02    Tangential Benefits to Suppression Motions

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.

Some of the peripheral benefits that may be achieved by a suppression motion are:

  • Discovery.

  • Creating a record for appeal on an issue.

  • Litigation tactics in the handling of difficult 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.]

Specific Suppression Motions

A. Illegal Stop

§18:10    Successfully Challenging the Stop Is Generally the Most Beneficial Suppression Motion

The suppression motion challenging the lawfulness of the detention of a motorist may be the most prominent member of the motion family attacking drunk driving tests. This is because a successful suppression motion essentially wins the case for the defense. In a successful motion, the court excludes all evidence obtained by the police after the stop of the defendant. This means that evidence of the defendant’s appearance, statements by the defendant, the results of any field sobriety tests and the results of any blood or breath tests cannot be used by the prosecution.

The suppression motion challenging the stop of the defendant can provide valuable discovery to the defense concerning the defendant’s driving. Is the officer claiming the defendant weaved 2 times or 20 times? Over what distance did any claimed weaving occur? How fast was the defendant driving? What were the traffic conditions? How long did the officer follow the defendant before initiating the traffic stop? Were there bends and twists in the road, or was it straight? Did the road have a marked fog line? Which direction did the defendant weave first? Police reports rarely provide a full accounting of the driving done by a defendant. Suppression motions fill in this information gap.

PRACTICE TIP

Don’t Be Too Detailed

Written suppression motions challenging the stop of a defendant should not be too detailed. The burden of justifying a warrantless detention lies with the prosecution. To the extent local rules permit, let the prosecution lower its ramparts before revealing the defense. This tactic limits the opportunity of the prosecution to work around the defense. The arresting officer will be a lot more malleable if the officer has not had an opportunity to prepare for the defense’s attack. Tip the prosecutor in your moving papers to your defense, and you can be sure that you just tipped the cop to your cross-examination.

Note:

The sample motion below involves a challenge to a stop based upon a claim of weaving. The main thrust of the motion is that the stop was unlawful because it was a warrantless detention. Some specific cases involving weaving across the lanes are set forth below should you opt to include them in your motion. Be mindful, though, that in written suppression motions, for the defense less is almost always more.

§18:11    Case Examples Regarding Weaving

The following cases involve weaving across the lanes. In the following cases courts held that the detention was justified:

  • Slay v. State, 997 P.2d 160, 163 (Okla. 2000). (Traversing the centerline justified the detention.)

  • State v. Hopper, 917 P.2d 872 (Kansas 1996). (Driving across the centerline three times combined with speed changes and weaving inside the lane permitted the stop.)

  • Held v. State, 948 S.W.2d 45 (Texas App.—Houston 1997). (Weaving across the lanes numerous times permitted an enforcement stop.)

  • In the following cases courts held that the detention was not justified:

  • Crooks v. State, 710 So.2d 1041 (Fla. App. 1998). (The defendant drove over the right hand edge line on three occasions, but did not travel significantly into the emergency lane. There were no other vehicles in the vicinity. The court held the stop was not proper.)

  • State v. Caron, 534 A.2d 978 (Me. 1987). (The defendant straddled the centerline for approximately 25 to 50 yards. This did not justify the traffic stop especially given the sparse traffic on the highway.)

  • Morris v. State, 18 P.3d 1003 (Mont. 2001). (Safe driving combined with simply crossing the line on one occasion and touching the fog line on the opposite side of the lane did not rise to the threshold that would permit a detention.)

§18:12 Sample Suppression Motions

BARTELL & HENSEL

5053 La Mart Drive, Suite 201

Riverside, California
92507

951-788-2230

Donald Bartell

Attorneys for Defendant

IN THE SUPERIOR OF THE STATE OF CALIFORNIA

COUNTY OF _____________, __________ DISTRICT

THE PEOPLE OF THE STATE OF CALIFORNIA,

                           ) CASE NO.:

                           ) NOTICE OF MOTION TO

Plaintiff,                 ) SUPPRESS; POINTS AND

____________               ) AUTHORITIES IN SUPPORT

vs.                        ) OF MOTION TO SUPPRESS

____________               ) DATE:

Defendant.                 ) TIME:

                           ) DEPT:

TO THE PEOPLE OF THE STATE OF CALIFORNIA AND TO THEIR ATTORNEY OF RECORD, THE DISTRICT ATTORNEY OF THE COUNTY OF RIVERSIDE, CALIFORNIA:  PLEASE TAKE NOTICE, that on ____________ at 8:30 a.m. or as soon thereafter as the matter may be heard, in Department __ of the above entitled Court, located at ____ Street, ________, California, the defendant, ___________________, will move this court for an order to suppress all evidence obtained against him following an illegal and unlawful stop, detention, search, seizure and arrest of the defendant by California Highway Patrol Officer _________________ (hereinafter referred to as “the arresting officer”) that occurred on ________________. The evidence this motions seeks to be excluded includes, but is not limited to:

  1. Any and all observations of the defendant made by any person after he was stopped by the arresting officer. Such observations and include, but are not limited to, the appearance of his clothing, his face, his eyes, his mouth, the quality or type of his speech, and any odors of any beverage about him or on his breath.
  2. Any and all statements, however memorialized, made orally or in writing by the defendant after he was stopped by the arresting officer.
  3. Any and all field sobriety tests performed by the defendant after he was stopped by the arresting officer.
  4. Any and all breath samples obtained from the defendant, and any and all results of any tests, including, but not limited to, any tests for alcohol and/or alcohol content, performed on any breath sample obtained from the defendant after he was stopped by the arresting officer. Such breath tests, include but are not limited to, any and all results obtained from any Intoxilyzer 5000 breath test machine and any preliminary alcohol screening device.

The governmental conduct set forth in this motion and accompanying papers violated the defendant’s reasonable expectation of privacy under the 4th, 5th, and 14th amendments to the United States Constitution. The constitutional grounds for this motion are that the stop, detention, search, seizure and arrest of the defendant by the officer was without a warrant and as such was unreasonable and unlawful. This motion is based upon this notice of motion, the accompanying points and authorities, the testimony of any witnesses who may testify at the hearing on this motion, and any arguments that may be advanced, and evidence that may be introduced at the hearing.

BARTELL & HENSEL

Dated: _____________ By:____________________

Donald Bartell

Attorneys for Defendant

BARTELL & HENSEL

5053 La Mart Drive, Suite 201

Riverside, California
92507

951-788-2230

Donald Bartell

Attorneys for Defendant

IN THE SUPERIOR OF THE STATE OF CALIFORNIA

COUNTY OF _____________, __________ DISTRICT

THE PEOPLE OF THE STATE OF CALIFORNIA,

                           ) CASE NO.:

Plaintiff,                 ) POINTS AND AUTHORITIES IN

____________               ) SUPPORT OF MOTION TO

vs.                        ) SUPPRESS

____________               ) DATE:

Defendant.                 ) TIME:

                           ) DEPT:

I. INTRODUCTION

A police officer with the California Highway Patrol (hereinafter “the arresting officer”) stopped the defendant [in an actual motion use the defendant’s name instead of the impersonal term “defendant”] on [Date]. The arresting officer did not have a warrant authorizing him to stop, detain or arrest the defendant. According to the police report generated in this case, the arresting officer stopped the defendant because the defendant’s car was allegedly weaving between lanes. The defendant maintains that he was not violating any law nor engaged in any conduct that justified him being stopped by the police. Following the stop, the defendant was given a series of field sobriety tests and subsequently was arrested for purportedly driving under the influence of alcohol. After he was arrested the defendant submitted to two breath tests to determine the level of alcohol in his blood. This motion to suppress now follows.

II. A WARRANTLESS STOP IS PRESUMED UNLAWFUL

The Fourth Amendment to the United States Constitution, although only one sentence long, protects the people against unjustified detentions by the government. The Amendment reads:

   The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Under the Fourth Amendment a search or seizure cannot take place without a warrant unless an exception to the warrant requirement exists. The reason for this is that a warrantless search or seizure is presumed to be unlawful. Katz v. United States (1967) 389 U.S. 347, 357. This longstanding rule places upon the state the burden to prove the lawfulness of a warrantless detention. Coolidge v. New Hampshire (1971) 403 U.S.433, 455. People v. Williams (1999) 20 Cal. 4th 119, 136. The California Supreme Court described this procedure in People v. Williams, at page 136:

   … [W]e hold that when defendants move to suppress evidence, they must set forth the factual and legal bases for the motion, but they satisfy that obligation, at least in the first instance, by making a prima facie showing that the police acted without a warrant. The prosecution then has the burden of proving some justification for the warrantless search or seizure.

As previously described in this motion, the police stopped the defendant without a warrant—therefore, the burden lies with the prosecution to establish the legitimacy of the detention.

The legitimacy of a stop of a motor vehicle requires the prosecution must prove that a police officer had a reasonable and articulable suspicion that the motorist had been or was engaged in unlawful activity. Delaware v. Prouse(1979) 440 U.S. 648, 661. The stop in this case did not meet the criteria mandated by the United States Supreme Court inDelaware v. Prouse.

III. THE EVIDENCE OBTAINED FROM THE ILLEGAL STOPSHOULD BE SUPPRESSED

When an initial seizure is unconstitutional, all evidence that flows from that seizure, including the defendant’s statements, must be suppressed. Mapp v. Ohio (1961) 367 U.S. 643. It is noted here that the good faith exception does not apply to warrantless stops. People v. Hernandez (2003) 110 Cal.App. 4th Supp 1. The defendant requests the court to suppress any and all observations, statements, field sobriety tests, and breath tests that were obtained after the arresting officer unlawfully stopped him.

IV. CONCLUSION

The defendant respectfully requests that the court grant his motion to suppress.

BARTELL & HENSEL

Dated: _____________ By:____________________

Donald Bartell

Attorneys for Defendant

B.  Suppressing a Blood or Breath Test After a Preliminary Screening Device Test

§18:20    Taking a Preliminary Alcohol Screening Device Test Removes Exigent Circumstances

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.

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.

Note that 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.

PRACTICE TIP

Keep Your Brief Concise.

Keep in mind the time constraints most judges self impose upon themselves to handle a drunk driving case. Whether the policy is a good or bad, realistically most judges are not going to treat your case like it is a Microsoft antitrust action. If you want the judge to read and understand your briefs, as a general rule keep the length of your brief confined to the size suggested by the term. Being concise and to the point makes the most of your chances.

§18:21 Sample Points and Authorities to Suppress a Blood [or Breath] Test

BARTELL & HENSEL

5053 La Mart Drive, Suite 201

Riverside, California
92507

951-788-2230

Donald Bartell

Attorneys for Defendant

IN THE SUPERIOR OF THE STATE OF CALIFORNIA

COUNTY OF _____________, __________ DISTRICT

THE PEOPLE OF THE STATE OF CALIFORNIA,

                           ) CASE NO.:

Plaintiff,                 ) POINTS AND AUTHORITIES

____________               ) IN SUPPORT OF MOTION TO

vs.                        ) SUPPRESS THE BLOOD

                           ) [OR BREATH] TEST

____________               ) DATE:

Defendant.                 ) TIME:

                           ) DEPT:

I. WARRANTLESS SEARCHES ARE PRESUMED UNLAWFUL

In Katz v. United States (1967) 389 U.S.347, 357, the United States Supreme Court held that:

   “… searches conducted outside the judicial process without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.”

II. THE TAKING OF A P.A.S. TEST ELIMINATED THE EXIGENCYTO SECURE THE SUBSEQUENT BLOOD TEST

One of the exceptions to the warrant requirement is the seizure of a blood sample from a suspected drunk driver. The United States Supreme Court in Schmerber v. California (1966) 384 U.S.757 permitted the warrantless seizure of a blood test from such a person. The court came to the conclusion that such conduct was reasonable under the Fourth Amendment because the human body would be metabolizing alcohol during the time period in which the police were seeking a search warrant. “[T]he percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system.
Id. 770. In order to prevent the loss of evidence, the court carved out a limited exception to the warrant requirement.

However, once a blood alcohol test is secured, the exigency no longer exists. In the present case, the state obtained a chemical test that served its purpose of finding the defendant’s blood alcohol level when the preliminary alcohol screening device test was administered. Indeed, the state in this case, as it has in a multitude of other cases, is seeking to admit the results of the preliminary alcohol screening test.People v. Williams (2002 California) 28 Cal.4th 408 (preliminary alcohol screening device test results can be used to determine blood alcohol levels.)

A breath test is, of course, a search. Burnett v. Municipality of Anchorage(1986 9th Cir.) 806 F.2d 1447, 1449. No legal justification exists for multiple warrantless searches to determine an individual’s alcohol content. If the state can take two warrantless samples, why not three or four?

After the first test is completed a search warrant is needed for any subsequent testing. The court in Nelson v. City of Irvine (1998 9th Cir.) 143 Fed.3d 1196, 1205 wrote: “we do not know of any exception to the warrant requirement other than exigency that could excuse the officer’s failure to obtain warrants. There is no other exception.

Constitutional justification must exist for each deviation from the warrant requirement. No such justification exists here for the seizure of the defendant’s blood after the initial search of his breath was completed with the preliminary alcohol screening device test. The state had its test. The Fourth Amendment needs vigilance. The United States Supreme Court noted the need for watchfulness in Coolidge v. New Hampshire (1971) 403 U.S.443, 453-454 when it recited the following passage from Boyd v. United States 116 U.S. 616, 635:

   “… illegitimate and unconstitutional practices get their first footing in that way, namely by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.”

III. CONCLUSION

The court is respectfully asked to grant the defendant’s motion excluding the unlawful seizure of the defendant’s blood [breath].

BARTELL & HENSEL

Dated: _____________ By:____________________

Donald Bartell

Attorneys for Defendant

C. Roadblocks

§18:30    Prosecution Must Establish Lawfulness of Roadblock

A drunk driving roadblock or checkpoint is simply another type of warrantless seizure. Consequently, like all warrantless detention motions, the prosecution has the burden of proof to establish the lawfulness of the checkpoint.

The United States Supreme Court has permitted the use of a drunk driving checkpoint program, but did so only after finding that the checkpoint had guidelines concerning the operation of the checkpoint, site selection, and advance publicity. [Michigan v. Sitz, 496 U.S. 444 (1990).]

The California Supreme Court has listed several criteria to help determine if a roadblock was constitutional. A lack of these factors should result in a successful challenge to a roadblock. The factors referenced by the court are:

  • Decision making at the supervisory level.

  • Limits on discretion of field officers.

  • Maintenance of safety conditions.

  • Reasonable location.

  • Time and duration.

  • Indicia of official nature of the roadblock.

  • Time of detention of motorists is minimized

  • Advance publicity of the roadblock

[Ingersoll v. Palmer, 743 P.2d 1299 (Ca. 1987)]

Each state may have different criteria. For example in New York, a formal written plan governing a roadblock is not necessary. [People v. Diplan, 688 N.Y.S.2d 436 (N.Y City Crim. Ct. 1999).]

§18:31 Sample Operational Order for Field Officers

The following is an actual example of an Operational Order for the field officers.

Palm Springs Police Dept.

Sobriety/Drivers License Checkpoint

Operational Order

Subject: DUI Sobriety Checkpoint

 

PURPOSE

  • To establish guidelines to remove drinking/impaired drivers within the City of Palm Springs, as well as maximizing the deterrent effect and increasing the perception of “risk of apprehension” to motorists who would operate a motor vehicle while impaired by alcohol and/or drugs or driving while unlicensed, out of driving privilege class.

  • To establish guidelines to remove drinking/impaired drivers within the City of Palm Springs, as well as maximizing the deterrent effect and increasing the perception of “risk of apprehension” to motorists who would operate a motor vehicle while impaired by alcohol and/or drugs or driving while unlicensed, out of driving privilege class.

PROCEDURE

  • Checkpoints will only be established by supervisory law enforcement personnel. The checkpoints must be justified on the grounds of public safety to withstand challenge in the court system. The U.S. Supreme Court received the constitutionality of sobriety checkpoints in June 1990. In Michigan vs. Sitz, 110 S. Ct.2481, the court ruled that a Fourth Amendment “seizure” occurs when a vehicle is stopped at a checkpoint. The ruling of the court (5-4) was that sobriety checkpoints do not violate the fourth amendment.

  • Our statistical information has identified roadways and intersections, which have a high number of DUI, related incidents in the City of Palm Springs. A review of the statistics for the area of South Palm Canyon from Ramon Road to South/East Palm Canyon has shown a high volume of DUI or alcohol related collision or incidents.

  • This checkpoint is located in the City of Palm Springs, on a public roadway, in the selected identified area. Final site determination took into consideration sight distances, roadway configuration, traffic volumes, proximity of businesses and residences, lighting for FST administration, motorist and officer safety.

LOCATION

  • 456 North Indian Canyon, between the intersections of Amado Road and Alejo Road. This is a one-way N/B four-lane roadway. The posted speed limit for this roadway is 35 mph and the escape route will be located at Amado Road and will be clearly marked.

TRAFFIC CONTROL

  • •  The cone pattern and traffic control for this program will be in accordance with Cal-Trans guidelines and will be set up and maintained by Tops N Barricades. The patterns will be set up at approximately 2100 hours, and removed at approximately 0200 hours. All Law Enforcement personnel working within the cone pattern will be in uniform. City street lighting, along with portable lighting will be provided at the actual vehicle check area that clearly illuminates the area and the personnel within to provide a safe working area for the motorists and the officers. An area adjacent to the checkpoint will be provided for the parking vehicles, and FST activity.

VEHICLE SCREENING

  • All vehicles, regardless of type, shall be subject to screening. This includes commercial vehicles, such as buses and large trucks. Vehicles SHALL NOT be stopped on a discretionary or random basis. Screening should not take more than 30 seconds. However, vehicles stopped outside of the checkpoint will not be covered within this rule; i.e. a violation of CVC2818 (illegal to cross a flare or cone pattern).

  • An effort will be made to screen every vehicle which passes through the checkpoint. However traffic volume and manpower will be taken into consideration to determine the sequence of screening. It if it is determined that it is not possible to check every vehicle, then the following screening sequence will be implanted:

  • Every second vehicle

  • Every third vehicle

  • Every fourth vehicle

  • Every fifth vehicle

  • Etc.

  • If at any time the traffic volume delay exceeds four (4) minutes, by actual timing, the next lower screening selection will be instituted by the on-scene Sergeant.

MEDIA

  • The on-scene Sergeant will closely monitor the activities of the media. Media members will be restricted to designated areas only at the checkpoint location, and at no time will they be allowed into the cone pattern. Media members and their representatives will be under the control of the on-scene Sergeant.

§18:32    Sample Checkpoint Guide for Field Officers

The following is an actual example of a Checkpoint Guide for the field officers.

Note how the guide reveals that officers are to use the roadblock to check for seat belt usage as well as for drunk driving. This is a purpose that the Supreme Court has not yet approved.

PRACTICE TIP

DUI checkpoints are often funded through grants by some governmental agency that has strings attached to the grant. Some of the strings may require the police agency receiving the funds to conduct the checkpoint in a manner that the courts have not authorized.

CHECKPOINT GUIDE
Sample initial question

  • “Good evening. You have been stopped at a Palm Springs Sobriety Checkpoint. We use Checkpoints in an effort to detect and deter impaired drivers. Have you had any alcohol to drink tonight?”

  • If the driver’s answer is no or none, and there is no other obvious reason to detain the vehicle, you should allow the vehicle to continue through.

  • If the answer is yes, then a longer detention is warranted to continue your investigation. If you observe any objective symptoms or further questions lead you to believe that the driver is impaired, then have the driver and passenger exit the vehicle and escort the driver to the designated area to continue FST’s. If you determine that the driver is not impaired, then allow him/her to proceed through.

  • To meet the requirements of the grant provided, we are required to make sure that the driver and all occupants of the vehicle are properly wearing their seatbelts including child safety seats. If a violation exists, a verbal warning may be given of the vehicle pulled over and a citation issued. Please be aware that we need to monitor the wearing of seatbelts for the grant, and C.O.P.’s will be on hand to keep track of numbers.

  • Normal Department policy should be followed for Officer Safety, contact, in field questioning, FST’s, arrests, paperwork, and booking.

  • Searches of vehicles, drivers, and passengers shall only be conducted when consistent with Department policy and when legally permissible.

  • A driver who wishes to avoid the checkpoint by legally turning before entering the checkpoint area should be allowed to do so, unless a traffic violation(s) is observed, or other probable cause exists to legally stop the vehicle.

  • THE ACT OF AVOIDING A SOBRIETY CHECKPOINT BY USING THE PROVIDED ESCAPE ROUTE, DOES NOT CONSTITUTE GROUNDS FOR A STOP.

§18:33    General Crime Fighting Is Not an Acceptable Justification

In addition to challenging checkpoints that do not have specific criteria governing the checkpoint, the defense should challenge any checkpoint that is implemented primarily to enforce the criminal laws against drunk driving.

The United States Supreme Court found a checkpoint whose primary purpose was intercepting drugs to be constitutionally defective. [City of Indianapolis v. Edmond, 531 U.S.32 (2000).] The court ruled:

We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing … Consistent with this suggestion, each of the checkpoint programs that we have approved was designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety. Because the primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the program contravenes the Fourth Amendment.

[City of Indianapolisv. Edmond, 531 U.S. 32 (2000).]

Edmondthus prohibits roadblocks that have their primary purpose as fighting crime. This does not conflict with the previous decision in Michigan v. Sitz because Sitz permitted roadblocks where the central reason was to make safer roads, not to detect the crime of drunk driving.

Although, the Edmonddecision involved a drug case the language is still quite helpful for the DUI practitioner. Edmond prohibits roadblocks whose primary purpose is to find and ferret out crime. Notwithstanding Sitz, the reality is that the actual purpose behind most roadblocks is to prosecute persons suspected of drunk driving.

PRACTICE TIP

Ask the Officer the Purpose of the Checkpoint.

During your suppression motion, query the police officers if the primary purpose of the drunk driving checkpoint was to catch and prosecute drunk drivers. After getting a quizzical look from the officer you may get an answer along the following lines: “That is the idea counselor isn’t it? To arrest and punish drunk drivers, you know, fight crime.” Whatever the format of the answer, if you secure a “yes” answer to your question you can explain to the officer and the court that actually this is not the idea. The Supreme Court prohibited such indiscriminate efforts in the City of Indianapolisv. Edmond.

§18:34    Drafting the Motion

Defense counsel should be careful while drafting the suppression motion based on a drunk driving checkpoint.

Do not be too informative. Only passing references to Sitz and Edmond need be made in your points and authorities. Note that the points and authorities in the sample supporting the checkpoint motion [§18:35] are virtually identical to the general suppression motion [§18:12].

In suppression motion briefs, less usually remains more.

§18:35 Sample Motion Challenging a Drunk Driving Checkpoint

BARTELL & HENSEL

5053 La Mart Drive, Suite 201

Riverside, California
92507

951-788-2230

Donald Bartell

Attorneys for Defendant

IN THE SUPERIOR OF THE STATE OF CALIFORNIA

COUNTY OF _____________, __________ DISTRICT

THE PEOPLE OF THE STATE OF CALIFORNIA,

                           ) CASE NO.:

Plaintiff,                 ) POINTS AND AUTHORITIES

____________               ) IN SUPPORT OF MOTION TO

vs.                        ) SUPPRESS EVIDENCE FROM A
) DUI ROADBLOCK

____________               ) DATE:

Defendant.                 ) TIME:

                           ) DEPT:

I. INTRODUCTION

On [Date] the defendant was driving home when he was stopped without a warrant at a roadblock set up and managed by the Riverside Police Department. The defendant was not observed committing any traffic violations, but was nonetheless required to stop at the roadblock. While detained in the middle of the night the defendant, who is 62 years old, was required to undergo a series of coordination exercises. After these exercises the defendant was arrested for allegedly driving under the influence of alcohol. The defendant maintains that he was not violating any law nor engaged in any conduct that justified him being stopped by the police. After he was arrested the defendant underwent a seizure of his blood. This motion to suppress now follows.

II.A WARRANTLESS STOP IS PRESUMED UNLAWFUL

The Fourth Amendment to the United States Constitution, but one sentence long, protects the people against unjustified detentions by the government. The Amendment reads:

   The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Under the Fourth Amendment a search or seizure cannot take place without a warrant unless an exception to the warrant requirement exists. The reason for this is that a warrantless search or seizure is presumed to be unlawful. Katz v. United States (1967) 389 U.S. 347, 357. This longstanding rule places upon the state the burden to prove the lawfulness of a warrantless detention. Coolidge v. New Hampshire (1971) 403 U.S.433, 455. People v. Williams (1999) 20 Cal. 4th 119, 136. The California Supreme Court described this procedure in People v. Williams, at page 136:

   … [W]e hold that when defendants move to suppress evidence, they must set forth the factual and legal bases for the motion, but they satisfy that obligation, at least in the first instance, by making a prima facie showing that the police acted without a warrant. The prosecution then has the burden of proving some justification for the warrantless search or seizure…

As previously described in this motion, the police stopped the defendant without a warrant. The stop was based upon a roadblock not on any evident wrongdoing by the defendant. Thus, the burden lies with the prosecution to establish the legitimacy of the detention. The defendant maintains the prosecution cannot establish the required legitimacy for the roadblock. Michigan v. Sitz (1990) 496 U.S. 444. City of Indianapolis v. Edmond (2000) 531 U.S.32.

III. THE EVIDENCE OBTAINED FROM THE ILLEGAL STOPSHOULD BE SUPPRESSED

When an initial seizure is unconstitutional, all evidence that flows from such seizure, including the defendant’s statements, must be suppressed. Mapp v. Ohio (1961) 367 U.S. 643. Here the defendant requests the court to suppress any and all observations, statements, field sobriety tests, and breath tests that were obtained after the arresting officer unlawfully stopped him.

BARTELL & HENSEL

Dated: _____________ By:____________________

Donald Bartell

Attorneys for Defendant

D.   Tolerance

§18:40    Exclude Evidence of Tolerance

When a defendant performs well on the field sobriety tests, the prosecution expert often claims that the reason for the sterling performance is that the defendant has developed a tolerance for the effects of alcohol.

This argument is a little like the “heads I win tails you lose” gimmick. If the defendant performs poorly on the field sobriety tests, the prosecution claims this is because the defendant is drunk. On the other hand, if the defendant performs well on the field sobriety tests, the prosecutor claims that this is because the defendant is a chronic drunk and has developed a tolerance for alcohol.

No allowance is made for the fact that the defendant may have performed well on the field sobriety tests because the defendant was sober. The motion to exclude evidence of tolerance attempts to sheath the double-edged sword that the prosecutor often brandishes.

The motion demands that the prosecutor first present evidence that the defendant has a tolerance for alcohol. It is rare that the prosecution can lay the required foundation.

§18:41 Sample Motion to Exclude Evidence of Tolerance

BARTELL & HENSEL

5053 La Mart Drive, Suite 201

Riverside, California
92507

951-788-2230

Donald Bartell

Attorneys for Defendant

IN THE SUPERIOR OF THE STATE OF CALIFORNIA

COUNTY OF _____________, __________ DISTRICT

THE PEOPLE OF THE STATE OF CALIFORNIA,

                           ) CASE NO.:

Plaintiff,                 ) POINTS AND AUTHORITIES

____________               ) IN SUPPORT OF MOTION TO

vs.                        ) EXCLUDE CLAIM OF

                           ) TOLERANCE

____________               ) DATE:

Defendant.                 ) TIME:

                           ) DEPT:

I. INTRODUCTION

The defendant performed several field sobriety tests prior to being arrested. Specifically, the defendant completed a walk the line test, finger to nose test, modified position of attention test, and finger count test. A fair evaluation of the defendant’s performance on the field sobriety tests, both individually and collectively, reveals that the defendant performed the tests exceedingly well. The fact that the defendant performed so well is not a great surprise to the defense, because the defendant was not under the influence of alcohol.

However, because the defendant performed the tests so successfully, it is anticipated that the prosecutor, or the prosecutor’s expert, may attempt to opine that the reason for the defendant’s stellar performance is that the defendant has a tolerance for the consumption of alcohol. The prosecutor, however, lacks any evidence to support such a claim.

II. THE PROSECUTION MUST LAY A FOUNDATIONPRIOR
TO OFFERING EVIDENCE OF TOLERANCE

In order for the prosecution to admit evidence that the defendant has tolerance for alcohol, the prosecution must first be able to establish the preliminary fact that the defendant has developed a tolerance due to extensive consumption of alcohol in the past. California Evidence Code Section 403. Absent this foundation evidence of tolerance is not relevant.

It is a fundamental rule of evidence that preliminary foundational facts must be established prior to the introduction of evidence. Otherwise the evidence is neither admissible nor relevant. People v. Herrera (2000) Cal. App. 4th 46, 61. Based on the discovery provided in this case, and the defendant’s prior life history, it is clear that the prosecution does not have any evidence that the defendant has consumed alcohol on such a regular basis to develop any tolerance for the effects of alcohol. Absent such a showing, the prosecution should not be permitted to introduce any such speculative claims.

To permit such evidence would in essence be allowing the admission of profile evidence, which has uniformly been held inadmissible. See, for example, U.S. v. Beltran-Rios (1989) 9th Cir. 878, F.2d. 1208, and People v. Castaneda (1997) 55 Cal. App. 4th 1067 (heroin dealer profile evidence ruled inadmissible).

III. CONCLUSION

The defendant performed well on the field sobriety tests for the simple reason that the defendant was not under the influence of alcohol. The prosecution has no evidence that the defendant has developed a tolerance for alcohol. Like any other evidence, the prosecution should not be allowed to introduce any such evidence of claimed tolerance without first proving the foundation for the evidence. Until such time the court is requested to exclude any speculative claims of tolerance by the prosecution.

BARTELL & HENSEL

Dated: _____________ By:____________________

Donald Bartell

Attorneys for Defendant

 


The above advice came from…

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From Attacking and Defending Drunk Driving Tests by Donald Bartell

 

Challenging stops, blood or breath results after PAS tests, roadblocks, and tolerance

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.

§18:02    Tangential Benefits to Suppression Motions

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.

Some of the peripheral benefits that may be achieved by a suppression motion are:

  • Discovery.

  • Creating a record for appeal on an issue.

  • Litigation tactics in the handling of difficult 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.]

Specific Suppression Motions

A. Illegal Stop

§18:10    Successfully Challenging the Stop Is Generally the Most Beneficial Suppression Motion

The suppression motion challenging the lawfulness of the detention of a motorist may be the most prominent member of the motion family attacking drunk driving tests. This is because a successful suppression motion essentially wins the case for the defense. In a successful motion, the court excludes all evidence obtained by the police after the stop of the defendant. This means that evidence of the defendant’s appearance, statements by the defendant, the results of any field sobriety tests and the results of any blood or breath tests cannot be used by the prosecution.

The suppression motion challenging the stop of the defendant can provide valuable discovery to the defense concerning the defendant’s driving. Is the officer claiming the defendant weaved 2 times or 20 times? Over what distance did any claimed weaving occur? How fast was the defendant driving? What were the traffic conditions? How long did the officer follow the defendant before initiating the traffic stop? Were there bends and twists in the road, or was it straight? Did the road have a marked fog line? Which direction did the defendant weave first? Police reports rarely provide a full accounting of the driving done by a defendant. Suppression motions fill in this information gap.

PRACTICE TIP

Don’t Be Too Detailed

Written suppression motions challenging the stop of a defendant should not be too detailed. The burden of justifying a warrantless detention lies with the prosecution. To the extent local rules permit, let the prosecution lower its ramparts before revealing the defense. This tactic limits the opportunity of the prosecution to work around the defense. The arresting officer will be a lot more malleable if the officer has not had an opportunity to prepare for the defense’s attack. Tip the prosecutor in your moving papers to your defense, and you can be sure that you just tipped the cop to your cross-examination.

Note:

The sample motion below involves a challenge to a stop based upon a claim of weaving. The main thrust of the motion is that the stop was unlawful because it was a warrantless detention. Some specific cases involving weaving across the lanes are set forth below should you opt to include them in your motion. Be mindful, though, that in written suppression motions, for the defense less is almost always more.

§18:11    Case Examples Regarding Weaving

The following cases involve weaving across the lanes. In the following cases courts held that the detention was justified:

  • Slay v. State, 997 P.2d 160, 163 (Okla. 2000). (Traversing the centerline justified the detention.)

  • State v. Hopper, 917 P.2d 872 (Kansas 1996). (Driving across the centerline three times combined with speed changes and weaving inside the lane permitted the stop.)

  • Held v. State, 948 S.W.2d 45 (Texas App.—Houston 1997). (Weaving across the lanes numerous times permitted an enforcement stop.)

  • In the following cases courts held that the detention was not justified:

  • Crooks v. State, 710 So.2d 1041 (Fla. App. 1998). (The defendant drove over the right hand edge line on three occasions, but did not travel significantly into the emergency lane. There were no other vehicles in the vicinity. The court held the stop was not proper.)

  • State v. Caron, 534 A.2d 978 (Me. 1987). (The defendant straddled the centerline for approximately 25 to 50 yards. This did not justify the traffic stop especially given the sparse traffic on the highway.)

  • Morris v. State, 18 P.3d 1003 (Mont. 2001). (Safe driving combined with simply crossing the line on one occasion and touching the fog line on the opposite side of the lane did not rise to the threshold that would permit a detention.)

§18:12 Sample Suppression Motions

BARTELL & HENSEL

5053 La Mart Drive, Suite 201

Riverside, California
92507

951-788-2230

Donald Bartell

Attorneys for Defendant

IN THE SUPERIOR OF THE STATE OF CALIFORNIA

COUNTY OF _____________, __________ DISTRICT

THE PEOPLE OF THE STATE OF CALIFORNIA,

                           ) CASE NO.:

                           ) NOTICE OF MOTION TO

Plaintiff,                 ) SUPPRESS; POINTS AND

____________               ) AUTHORITIES IN SUPPORT

vs.                        ) OF MOTION TO SUPPRESS

____________               ) DATE:

Defendant.                 ) TIME:

                           ) DEPT:

TO THE PEOPLE OF THE STATE OF CALIFORNIA AND TO THEIR ATTORNEY OF RECORD, THE DISTRICT ATTORNEY OF THE COUNTY OF RIVERSIDE, CALIFORNIA:  PLEASE TAKE NOTICE, that on ____________ at 8:30 a.m. or as soon thereafter as the matter may be heard, in Department __ of the above entitled Court, located at ____ Street, ________, California, the defendant, ___________________, will move this court for an order to suppress all evidence obtained against him following an illegal and unlawful stop, detention, search, seizure and arrest of the defendant by California Highway Patrol Officer _________________ (hereinafter referred to as “the arresting officer”) that occurred on ________________. The evidence this motions seeks to be excluded includes, but is not limited to:

  1. Any and all observations of the defendant made by any person after he was stopped by the arresting officer. Such observations and include, but are not limited to, the appearance of his clothing, his face, his eyes, his mouth, the quality or type of his speech, and any odors of any beverage about him or on his breath.
  2. Any and all statements, however memorialized, made orally or in writing by the defendant after he was stopped by the arresting officer.
  3. Any and all field sobriety tests performed by the defendant after he was stopped by the arresting officer.
  4. Any and all breath samples obtained from the defendant, and any and all results of any tests, including, but not limited to, any tests for alcohol and/or alcohol content, performed on any breath sample obtained from the defendant after he was stopped by the arresting officer. Such breath tests, include but are not limited to, any and all results obtained from any Intoxilyzer 5000 breath test machine and any preliminary alcohol screening device.

The governmental conduct set forth in this motion and accompanying papers violated the defendant’s reasonable expectation of privacy under the 4th, 5th, and 14th amendments to the United States Constitution. The constitutional grounds for this motion are that the stop, detention, search, seizure and arrest of the defendant by the officer was without a warrant and as such was unreasonable and unlawful. This motion is based upon this notice of motion, the accompanying points and authorities, the testimony of any witnesses who may testify at the hearing on this motion, and any arguments that may be advanced, and evidence that may be introduced at the hearing.

BARTELL & HENSEL

Dated: _____________ By:____________________

Donald Bartell

Attorneys for Defendant

BARTELL & HENSEL

5053 La Mart Drive, Suite 201

Riverside, California
92507

951-788-2230

Donald Bartell

Attorneys for Defendant

IN THE SUPERIOR OF THE STATE OF CALIFORNIA

COUNTY OF _____________, __________ DISTRICT

THE PEOPLE OF THE STATE OF CALIFORNIA,

                           ) CASE NO.:

Plaintiff,                 ) POINTS AND AUTHORITIES IN

____________               ) SUPPORT OF MOTION TO

vs.                        ) SUPPRESS

____________               ) DATE:

Defendant.                 ) TIME:

                           ) DEPT:

I. INTRODUCTION

A police officer with the California Highway Patrol (hereinafter “the arresting officer”) stopped the defendant [in an actual motion use the defendant’s name instead of the impersonal term “defendant”] on [Date]. The arresting officer did not have a warrant authorizing him to stop, detain or arrest the defendant. According to the police report generated in this case, the arresting officer stopped the defendant because the defendant’s car was allegedly weaving between lanes. The defendant maintains that he was not violating any law nor engaged in any conduct that justified him being stopped by the police. Following the stop, the defendant was given a series of field sobriety tests and subsequently was arrested for purportedly driving under the influence of alcohol. After he was arrested the defendant submitted to two breath tests to determine the level of alcohol in his blood. This motion to suppress now follows.

II. A WARRANTLESS STOP IS PRESUMED UNLAWFUL

The Fourth Amendment to the United States Constitution, although only one sentence long, protects the people against unjustified detentions by the government. The Amendment reads:

   The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Under the Fourth Amendment a search or seizure cannot take place without a warrant unless an exception to the warrant requirement exists. The reason for this is that a warrantless search or seizure is presumed to be unlawful. Katz v. United States (1967) 389 U.S. 347, 357. This longstanding rule places upon the state the burden to prove the lawfulness of a warrantless detention. Coolidge v. New Hampshire (1971) 403 U.S.433, 455. People v. Williams (1999) 20 Cal. 4th 119, 136. The California Supreme Court described this procedure in People v. Williams, at page 136:

   … [W]e hold that when defendants move to suppress evidence, they must set forth the factual and legal bases for the motion, but they satisfy that obligation, at least in the first instance, by making a prima facie showing that the police acted without a warrant. The prosecution then has the burden of proving some justification for the warrantless search or seizure.

As previously described in this motion, the police stopped the defendant without a warrant—therefore, the burden lies with the prosecution to establish the legitimacy of the detention.

The legitimacy of a stop of a motor vehicle requires the prosecution must prove that a police officer had a reasonable and articulable suspicion that the motorist had been or was engaged in unlawful activity. Delaware v. Prouse(1979) 440 U.S. 648, 661. The stop in this case did not meet the criteria mandated by the United States Supreme Court inDelaware v. Prouse.

III. THE EVIDENCE OBTAINED FROM THE ILLEGAL STOPSHOULD BE SUPPRESSED

When an initial seizure is unconstitutional, all evidence that flows from that seizure, including the defendant’s statements, must be suppressed. Mapp v. Ohio (1961) 367 U.S. 643. It is noted here that the good faith exception does not apply to warrantless stops. People v. Hernandez (2003) 110 Cal.App. 4th Supp 1. The defendant requests the court to suppress any and all observations, statements, field sobriety tests, and breath tests that were obtained after the arresting officer unlawfully stopped him.

IV. CONCLUSION

The defendant respectfully requests that the court grant his motion to suppress.

BARTELL & HENSEL

Dated: _____________ By:____________________

Donald Bartell

Attorneys for Defendant

B.  Suppressing a Blood or Breath Test After a Preliminary Screening Device Test

§18:20    Taking a Preliminary Alcohol Screening Device Test Removes Exigent Circumstances

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.

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.

Note that 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.

PRACTICE TIP

Keep Your Brief Concise.

Keep in mind the time constraints most judges self impose upon themselves to handle a drunk driving case. Whether the policy is a good or bad, realistically most judges are not going to treat your case like it is a Microsoft antitrust action. If you want the judge to read and understand your briefs, as a general rule keep the length of your brief confined to the size suggested by the term. Being concise and to the point makes the most of your chances.

§18:21 Sample Points and Authorities to Suppress a Blood [or Breath] Test

BARTELL & HENSEL

5053 La Mart Drive, Suite 201

Riverside, California
92507

951-788-2230

Donald Bartell

Attorneys for Defendant

IN THE SUPERIOR OF THE STATE OF CALIFORNIA

COUNTY OF _____________, __________ DISTRICT

THE PEOPLE OF THE STATE OF CALIFORNIA,

                           ) CASE NO.:

Plaintiff,                 ) POINTS AND AUTHORITIES

____________               ) IN SUPPORT OF MOTION TO

vs.                        ) SUPPRESS THE BLOOD

                           ) [OR BREATH] TEST

____________               ) DATE:

Defendant.                 ) TIME:

                           ) DEPT:

I. WARRANTLESS SEARCHES ARE PRESUMED UNLAWFUL

In Katz v. United States (1967) 389 U.S.347, 357, the United States Supreme Court held that:

   “… searches conducted outside the judicial process without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.”

II. THE TAKING OF A P.A.S. TEST ELIMINATED THE EXIGENCYTO SECURE THE SUBSEQUENT BLOOD TEST

One of the exceptions to the warrant requirement is the seizure of a blood sample from a suspected drunk driver. The United States Supreme Court in Schmerber v. California (1966) 384 U.S.757 permitted the warrantless seizure of a blood test from such a person. The court came to the conclusion that such conduct was reasonable under the Fourth Amendment because the human body would be metabolizing alcohol during the time period in which the police were seeking a search warrant. “[T]he percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system.
Id. 770. In order to prevent the loss of evidence, the court carved out a limited exception to the warrant requirement.

However, once a blood alcohol test is secured, the exigency no longer exists. In the present case, the state obtained a chemical test that served its purpose of finding the defendant’s blood alcohol level when the preliminary alcohol screening device test was administered. Indeed, the state in this case, as it has in a multitude of other cases, is seeking to admit the results of the preliminary alcohol screening test.People v. Williams (2002 California) 28 Cal.4th 408 (preliminary alcohol screening device test results can be used to determine blood alcohol levels.)

A breath test is, of course, a search. Burnett v. Municipality of Anchorage(1986 9th Cir.) 806 F.2d 1447, 1449. No legal justification exists for multiple warrantless searches to determine an individual’s alcohol content. If the state can take two warrantless samples, why not three or four?

After the first test is completed a search warrant is needed for any subsequent testing. The court in Nelson v. City of Irvine (1998 9th Cir.) 143 Fed.3d 1196, 1205 wrote: “we do not know of any exception to the warrant requirement other than exigency that could excuse the officer’s failure to obtain warrants. There is no other exception.

Constitutional justification must exist for each deviation from the warrant requirement. No such justification exists here for the seizure of the defendant’s blood after the initial search of his breath was completed with the preliminary alcohol screening device test. The state had its test. The Fourth Amendment needs vigilance. The United States Supreme Court noted the need for watchfulness in Coolidge v. New Hampshire (1971) 403 U.S.443, 453-454 when it recited the following passage from Boyd v. United States 116 U.S. 616, 635:

   “… illegitimate and unconstitutional practices get their first footing in that way, namely by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.”

III. CONCLUSION

The court is respectfully asked to grant the defendant’s motion excluding the unlawful seizure of the defendant’s blood [breath].

BARTELL & HENSEL

Dated: _____________ By:____________________

Donald Bartell

Attorneys for Defendant

C. Roadblocks

§18:30    Prosecution Must Establish Lawfulness of Roadblock

A drunk driving roadblock or checkpoint is simply another type of warrantless seizure. Consequently, like all warrantless detention motions, the prosecution has the burden of proof to establish the lawfulness of the checkpoint.

The United States Supreme Court has permitted the use of a drunk driving checkpoint program, but did so only after finding that the checkpoint had guidelines concerning the operation of the checkpoint, site selection, and advance publicity. [Michigan v. Sitz, 496 U.S. 444 (1990).]

The California Supreme Court has listed several criteria to help determine if a roadblock was constitutional. A lack of these factors should result in a successful challenge to a roadblock. The factors referenced by the court are:

  • Decision making at the supervisory level.

  • Limits on discretion of field officers.

  • Maintenance of safety conditions.

  • Reasonable location.

  • Time and duration.

  • Indicia of official nature of the roadblock.

  • Time of detention of motorists is minimized

  • Advance publicity of the roadblock

[Ingersoll v. Palmer, 743 P.2d 1299 (Ca. 1987)]

Each state may have different criteria. For example in New York, a formal written plan governing a roadblock is not necessary. [People v. Diplan, 688 N.Y.S.2d 436 (N.Y City Crim. Ct. 1999).]

§18:31 Sample Operational Order for Field Officers

The following is an actual example of an Operational Order for the field officers.

Palm Springs Police Dept.

Sobriety/Drivers License Checkpoint

Operational Order

Subject: DUI Sobriety Checkpoint

 

PURPOSE

  • To establish guidelines to remove drinking/impaired drivers within the City of Palm Springs, as well as maximizing the deterrent effect and increasing the perception of “risk of apprehension” to motorists who would operate a motor vehicle while impaired by alcohol and/or drugs or driving while unlicensed, out of driving privilege class.

  • To establish guidelines to remove drinking/impaired drivers within the City of Palm Springs, as well as maximizing the deterrent effect and increasing the perception of “risk of apprehension” to motorists who would operate a motor vehicle while impaired by alcohol and/or drugs or driving while unlicensed, out of driving privilege class.

PROCEDURE

  • Checkpoints will only be established by supervisory law enforcement personnel. The checkpoints must be justified on the grounds of public safety to withstand challenge in the court system. The U.S. Supreme Court received the constitutionality of sobriety checkpoints in June 1990. In Michigan vs. Sitz, 110 S. Ct.2481, the court ruled that a Fourth Amendment “seizure” occurs when a vehicle is stopped at a checkpoint. The ruling of the court (5-4) was that sobriety checkpoints do not violate the fourth amendment.

  • Our statistical information has identified roadways and intersections, which have a high number of DUI, related incidents in the City of Palm Springs. A review of the statistics for the area of South Palm Canyon from Ramon Road to South/East Palm Canyon has shown a high volume of DUI or alcohol related collision or incidents.

  • This checkpoint is located in the City of Palm Springs, on a public roadway, in the selected identified area. Final site determination took into consideration sight distances, roadway configuration, traffic volumes, proximity of businesses and residences, lighting for FST administration, motorist and officer safety.

LOCATION

  • 456 North Indian Canyon, between the intersections of Amado Road and Alejo Road. This is a one-way N/B four-lane roadway. The posted speed limit for this roadway is 35 mph and the escape route will be located at Amado Road and will be clearly marked.

TRAFFIC CONTROL

  • •  The cone pattern and traffic control for this program will be in accordance with Cal-Trans guidelines and will be set up and maintained by Tops N Barricades. The patterns will be set up at approximately 2100 hours, and removed at approximately 0200 hours. All Law Enforcement personnel working within the cone pattern will be in uniform. City street lighting, along with portable lighting will be provided at the actual vehicle check area that clearly illuminates the area and the personnel within to provide a safe working area for the motorists and the officers. An area adjacent to the checkpoint will be provided for the parking vehicles, and FST activity.

VEHICLE SCREENING

  • All vehicles, regardless of type, shall be subject to screening. This includes commercial vehicles, such as buses and large trucks. Vehicles SHALL NOT be stopped on a discretionary or random basis. Screening should not take more than 30 seconds. However, vehicles stopped outside of the checkpoint will not be covered within this rule; i.e. a violation of CVC2818 (illegal to cross a flare or cone pattern).

  • An effort will be made to screen every vehicle which passes through the checkpoint. However traffic volume and manpower will be taken into consideration to determine the sequence of screening. It if it is determined that it is not possible to check every vehicle, then the following screening sequence will be implanted:

  • Every second vehicle

  • Every third vehicle

  • Every fourth vehicle

  • Every fifth vehicle

  • Etc.

  • If at any time the traffic volume delay exceeds four (4) minutes, by actual timing, the next lower screening selection will be instituted by the on-scene Sergeant.

MEDIA

  • The on-scene Sergeant will closely monitor the activities of the media. Media members will be restricted to designated areas only at the checkpoint location, and at no time will they be allowed into the cone pattern. Media members and their representatives will be under the control of the on-scene Sergeant.

§18:32    Sample Checkpoint Guide for Field Officers

The following is an actual example of a Checkpoint Guide for the field officers.

Note how the guide reveals that officers are to use the roadblock to check for seat belt usage as well as for drunk driving. This is a purpose that the Supreme Court has not yet approved.

PRACTICE TIP

DUI checkpoints are often funded through grants by some governmental agency that has strings attached to the grant. Some of the strings may require the police agency receiving the funds to conduct the checkpoint in a manner that the courts have not authorized.

CHECKPOINT GUIDE
Sample initial question

  • “Good evening. You have been stopped at a Palm Springs Sobriety Checkpoint. We use Checkpoints in an effort to detect and deter impaired drivers. Have you had any alcohol to drink tonight?”

  • If the driver’s answer is no or none, and there is no other obvious reason to detain the vehicle, you should allow the vehicle to continue through.

  • If the answer is yes, then a longer detention is warranted to continue your investigation. If you observe any objective symptoms or further questions lead you to believe that the driver is impaired, then have the driver and passenger exit the vehicle and escort the driver to the designated area to continue FST’s. If you determine that the driver is not impaired, then allow him/her to proceed through.

  • To meet the requirements of the grant provided, we are required to make sure that the driver and all occupants of the vehicle are properly wearing their seatbelts including child safety seats. If a violation exists, a verbal warning may be given of the vehicle pulled over and a citation issued. Please be aware that we need to monitor the wearing of seatbelts for the grant, and C.O.P.’s will be on hand to keep track of numbers.

  • Normal Department policy should be followed for Officer Safety, contact, in field questioning, FST’s, arrests, paperwork, and booking.

  • Searches of vehicles, drivers, and passengers shall only be conducted when consistent with Department policy and when legally permissible.

  • A driver who wishes to avoid the checkpoint by legally turning before entering the checkpoint area should be allowed to do so, unless a traffic violation(s) is observed, or other probable cause exists to legally stop the vehicle.

  • THE ACT OF AVOIDING A SOBRIETY CHECKPOINT BY USING THE PROVIDED ESCAPE ROUTE, DOES NOT CONSTITUTE GROUNDS FOR A STOP.

§18:33    General Crime Fighting Is Not an Acceptable Justification

In addition to challenging checkpoints that do not have specific criteria governing the checkpoint, the defense should challenge any checkpoint that is implemented primarily to enforce the criminal laws against drunk driving.

The United States Supreme Court found a checkpoint whose primary purpose was intercepting drugs to be constitutionally defective. [City of Indianapolis v. Edmond, 531 U.S.32 (2000).] The court ruled:

We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing … Consistent with this suggestion, each of the checkpoint programs that we have approved was designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety. Because the primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the program contravenes the Fourth Amendment.

[City of Indianapolisv. Edmond, 531 U.S. 32 (2000).]

Edmondthus prohibits roadblocks that have their primary purpose as fighting crime. This does not conflict with the previous decision in Michigan v. Sitz because Sitz permitted roadblocks where the central reason was to make safer roads, not to detect the crime of drunk driving.

Although, the Edmonddecision involved a drug case the language is still quite helpful for the DUI practitioner. Edmond prohibits roadblocks whose primary purpose is to find and ferret out crime. Notwithstanding Sitz, the reality is that the actual purpose behind most roadblocks is to prosecute persons suspected of drunk driving.

PRACTICE TIP

Ask the Officer the Purpose of the Checkpoint.

During your suppression motion, query the police officers if the primary purpose of the drunk driving checkpoint was to catch and prosecute drunk drivers. After getting a quizzical look from the officer you may get an answer along the following lines: “That is the idea counselor isn’t it? To arrest and punish drunk drivers, you know, fight crime.” Whatever the format of the answer, if you secure a “yes” answer to your question you can explain to the officer and the court that actually this is not the idea. The Supreme Court prohibited such indiscriminate efforts in the City of Indianapolisv. Edmond.

§18:34    Drafting the Motion

Defense counsel should be careful while drafting the suppression motion based on a drunk driving checkpoint.

Do not be too informative. Only passing references to Sitz and Edmond need be made in your points and authorities. Note that the points and authorities in the sample supporting the checkpoint motion [§18:35] are virtually identical to the general suppression motion [§18:12].

In suppression motion briefs, less usually remains more.

§18:35 Sample Motion Challenging a Drunk Driving Checkpoint

BARTELL & HENSEL

5053 La Mart Drive, Suite 201

Riverside, California
92507

951-788-2230

Donald Bartell

Attorneys for Defendant

IN THE SUPERIOR OF THE STATE OF CALIFORNIA

COUNTY OF _____________, __________ DISTRICT

THE PEOPLE OF THE STATE OF CALIFORNIA,

                           ) CASE NO.:

Plaintiff,                 ) POINTS AND AUTHORITIES

____________               ) IN SUPPORT OF MOTION TO

vs.                        ) SUPPRESS EVIDENCE FROM A
) DUI ROADBLOCK

____________               ) DATE:

Defendant.                 ) TIME:

                           ) DEPT:

I. INTRODUCTION

On [Date] the defendant was driving home when he was stopped without a warrant at a roadblock set up and managed by the Riverside Police Department. The defendant was not observed committing any traffic violations, but was nonetheless required to stop at the roadblock. While detained in the middle of the night the defendant, who is 62 years old, was required to undergo a series of coordination exercises. After these exercises the defendant was arrested for allegedly driving under the influence of alcohol. The defendant maintains that he was not violating any law nor engaged in any conduct that justified him being stopped by the police. After he was arrested the defendant underwent a seizure of his blood. This motion to suppress now follows.

II.A WARRANTLESS STOP IS PRESUMED UNLAWFUL

The Fourth Amendment to the United States Constitution, but one sentence long, protects the people against unjustified detentions by the government. The Amendment reads:

   The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Under the Fourth Amendment a search or seizure cannot take place without a warrant unless an exception to the warrant requirement exists. The reason for this is that a warrantless search or seizure is presumed to be unlawful. Katz v. United States (1967) 389 U.S. 347, 357. This longstanding rule places upon the state the burden to prove the lawfulness of a warrantless detention. Coolidge v. New Hampshire (1971) 403 U.S.433, 455. People v. Williams (1999) 20 Cal. 4th 119, 136. The California Supreme Court described this procedure in People v. Williams, at page 136:

   … [W]e hold that when defendants move to suppress evidence, they must set forth the factual and legal bases for the motion, but they satisfy that obligation, at least in the first instance, by making a prima facie showing that the police acted without a warrant. The prosecution then has the burden of proving some justification for the warrantless search or seizure…

As previously described in this motion, the police stopped the defendant without a warrant. The stop was based upon a roadblock not on any evident wrongdoing by the defendant. Thus, the burden lies with the prosecution to establish the legitimacy of the detention. The defendant maintains the prosecution cannot establish the required legitimacy for the roadblock. Michigan v. Sitz (1990) 496 U.S. 444. City of Indianapolis v. Edmond (2000) 531 U.S.32.

III. THE EVIDENCE OBTAINED FROM THE ILLEGAL STOPSHOULD BE SUPPRESSED

When an initial seizure is unconstitutional, all evidence that flows from such seizure, including the defendant’s statements, must be suppressed. Mapp v. Ohio (1961) 367 U.S. 643. Here the defendant requests the court to suppress any and all observations, statements, field sobriety tests, and breath tests that were obtained after the arresting officer unlawfully stopped him.

BARTELL & HENSEL

Dated: _____________ By:____________________

Donald Bartell

Attorneys for Defendant

D.   Tolerance

§18:40    Exclude Evidence of Tolerance

When a defendant performs well on the field sobriety tests, the prosecution expert often claims that the reason for the sterling performance is that the defendant has developed a tolerance for the effects of alcohol.

This argument is a little like the “heads I win tails you lose” gimmick. If the defendant performs poorly on the field sobriety tests, the prosecution claims this is because the defendant is drunk. On the other hand, if the defendant performs well on the field sobriety tests, the prosecutor claims that this is because the defendant is a chronic drunk and has developed a tolerance for alcohol.

No allowance is made for the fact that the defendant may have performed well on the field sobriety tests because the defendant was sober. The motion to exclude evidence of tolerance attempts to sheath the double-edged sword that the prosecutor often brandishes.

The motion demands that the prosecutor first present evidence that the defendant has a tolerance for alcohol. It is rare that the prosecution can lay the required foundation.

§18:41 Sample Motion to Exclude Evidence of Tolerance

BARTELL & HENSEL

5053 La Mart Drive, Suite 201

Riverside, California
92507

951-788-2230

Donald Bartell

Attorneys for Defendant

IN THE SUPERIOR OF THE STATE OF CALIFORNIA

COUNTY OF _____________, __________ DISTRICT

THE PEOPLE OF THE STATE OF CALIFORNIA,

                           ) CASE NO.:

Plaintiff,                 ) POINTS AND AUTHORITIES

____________               ) IN SUPPORT OF MOTION TO

vs.                        ) EXCLUDE CLAIM OF

                           ) TOLERANCE

____________               ) DATE:

Defendant.                 ) TIME:

                           ) DEPT:

I. INTRODUCTION

The defendant performed several field sobriety tests prior to being arrested. Specifically, the defendant completed a walk the line test, finger to nose test, modified position of attention test, and finger count test. A fair evaluation of the defendant’s performance on the field sobriety tests, both individually and collectively, reveals that the defendant performed the tests exceedingly well. The fact that the defendant performed so well is not a great surprise to the defense, because the defendant was not under the influence of alcohol.

However, because the defendant performed the tests so successfully, it is anticipated that the prosecutor, or the prosecutor’s expert, may attempt to opine that the reason for the defendant’s stellar performance is that the defendant has a tolerance for the consumption of alcohol. The prosecutor, however, lacks any evidence to support such a claim.

II. THE PROSECUTION MUST LAY A FOUNDATIONPRIOR
TO OFFERING EVIDENCE OF TOLERANCE

In order for the prosecution to admit evidence that the defendant has tolerance for alcohol, the prosecution must first be able to establish the preliminary fact that the defendant has developed a tolerance due to extensive consumption of alcohol in the past. California Evidence Code Section 403. Absent this foundation evidence of tolerance is not relevant.

It is a fundamental rule of evidence that preliminary foundational facts must be established prior to the introduction of evidence. Otherwise the evidence is neither admissible nor relevant. People v. Herrera (2000) Cal. App. 4th 46, 61. Based on the discovery provided in this case, and the defendant’s prior life history, it is clear that the prosecution does not have any evidence that the defendant has consumed alcohol on such a regular basis to develop any tolerance for the effects of alcohol. Absent such a showing, the prosecution should not be permitted to introduce any such speculative claims.

To permit such evidence would in essence be allowing the admission of profile evidence, which has uniformly been held inadmissible. See, for example, U.S. v. Beltran-Rios (1989) 9th Cir. 878, F.2d. 1208, and People v. Castaneda (1997) 55 Cal. App. 4th 1067 (heroin dealer profile evidence ruled inadmissible).

III. CONCLUSION

The defendant performed well on the field sobriety tests for the simple reason that the defendant was not under the influence of alcohol. The prosecution has no evidence that the defendant has developed a tolerance for alcohol. Like any other evidence, the prosecution should not be allowed to introduce any such evidence of claimed tolerance without first proving the foundation for the evidence. Until such time the court is requested to exclude any speculative claims of tolerance by the prosecution.

BARTELL & HENSEL

Dated: _____________ By:____________________

Donald Bartell

Attorneys for Defendant

 


The above advice came from…

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How to overcome the presumption of guilt in DUI trials

   Voir dire strategies, cross-examination questions, and science to help you convince the jury that your DUI case deserves an honest review

   Question-by-question and argument-by-argument, Don Bartell’s Attacking and Supporting Drunk Driving Tests explains how to soften resolute juries by picking apart unyielding police reports and bulletproof lab reports.

   These courtroom-proven strategies are supported with understandable science in a coordinated trial attack that will leave the prosecution wondering how its formerly solid case became so weak.

   This winning approach to DUI trials is presented step-by-step, and is heavily-supported with pattern arguments, model cross-examinations, case law, science, and motions.  While this big book focuses on attacking drunk driving tests, it also takes you step-by-step from discovery and investigation through motion practice to trial.  It includes:

Pattern motions, with points and authorities

  • Suppressing all evidence from a stop for weaving. §18:3

  • Suppressing a breath or blood test taken after a PAS test.  §18:4

  • Challenging a drunk driving checkpoint.  §18:7

  • Excluding evidence of tolerance.  §18:9

  • Introducing partition ratio evidence.  §18:11

  • Denial of choice of test.  §18:13

  • Limiting the use of the horizontal gaze nystagmus test.  §18:15

Proven trial tactics

  • What response should you give to a judge who asks during the pretrial conference what is your defense?  §20:50

  • What formulas should you know before you go to court?  §20:31

  • Why develop a time line?  §20:20

  • What question should the defense ask every time there are two police officers testifying in the case?   §20:99

  • What can you do to minimize the effects of bad facts?  §20:60

  • How can you have the client testify without the client taking the stand?  §20:51

  • Where in the trial can the defense give a rebuttal statement?  §20:75

To order Don Bartell’sAttacking and Supporting Drunk Driving Tests on 30-day approval, click here

” class=”style217″>Attacking and Supporting Drunk Driving Tests explains how to soften resolute juries by picking apart unyielding police reports and bulletproof lab reports.

   These courtroom-proven strategies are supported with understandable science in a coordinated trial attack that will leave the prosecution wondering how its formerly solid case became so weak.

   This winning approach to DUI trials is presented step-by-step, and is heavily-supported with pattern arguments, model cross-examinations, case law, science, and motions.  While this big book focuses on attacking drunk driving tests, it also takes you step-by-step from discovery and investigation through motion practice to trial.  It includes:

Pattern motions, with points and authorities

  • Suppressing all evidence from a stop for weaving. §18:3

  • Suppressing a breath or blood test taken after a PAS test.  §18:4

  • Challenging a drunk driving checkpoint.  §18:7

  • Excluding evidence of tolerance.  §18:9

  • Introducing partition ratio evidence.  §18:11

  • Denial of choice of test.  §18:13

  • Limiting the use of the horizontal gaze nystagmus test.  §18:15

Proven trial tactics

  • What response should you give to a judge who asks during the pretrial conference what is your defense?  §20:50

  • What formulas should you know before you go to court?  §20:31

  • Why develop a time line?  §20:20

  • What question should the defense ask every time there are two police officers testifying in the case?   §20:99

  • What can you do to minimize the effects of bad facts?  §20:60

  • How can you have the client testify without the client taking the stand?  §20:51

  • Where in the trial can the defense give a rebuttal statement?  §20:75

To order Don Bartell’sAttacking and Supporting Drunk Driving Tests on 30-day approval, click here