Motions In DUI Cases Stephen F. Wagner T.S.R.P. (Coastal Region) [email protected]...

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Stephen F. Wagner Stephen F. Wagner T.S.R.P. (Coastal Region) T.S.R.P. (Coastal Region) [email protected] [email protected] 831-647-7975 831-647-7975 Motions in DUI Cases Motions in DUI Cases Punch, Don’t Counter- Punch, Don’t Counter- punch! punch!

Transcript of Motions In DUI Cases Stephen F. Wagner T.S.R.P. (Coastal Region) [email protected]...

Page 1: Motions In DUI Cases Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us 831-647-7975 Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us.

Motions In DUI CasesMotions In DUI Cases

Stephen F. WagnerStephen F. WagnerT.S.R.P. (Coastal Region)T.S.R.P. (Coastal Region)

[email protected]@co.monterey.ca.us

831-647-7975831-647-7975

Stephen F. WagnerStephen F. WagnerT.S.R.P. (Coastal Region)T.S.R.P. (Coastal Region)

[email protected]@co.monterey.ca.us831-647-7975831-647-7975

Motions in DUI CasesMotions in DUI CasesPunch, Don’t Counter-punch!Punch, Don’t Counter-punch!

Page 2: Motions In DUI Cases Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us 831-647-7975 Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us.

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Funding for this program was provided by Funding for this program was provided by a grant from the California Office of Traffic a grant from the California Office of Traffic Safety, through the National Highway Safety, through the National Highway Traffic Safety AdministrationTraffic Safety Administration

Pretrial Motions and Going on the Pretrial Motions and Going on the offensive! offensive!

Page 3: Motions In DUI Cases Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us 831-647-7975 Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us.

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General Considerations General Considerations Expanding and Limiting the Playing FieldExpanding and Limiting the Playing Field

Most of the trial motions deal with the Most of the trial motions deal with the admissibility of evidence and “admissibility” is admissibility of evidence and “admissibility” is directly linked to directly linked to relevancerelevance““Relevance” is directly linked to the prima facie Relevance” is directly linked to the prima facie or threshold elements of your DUI count(s) or threshold elements of your DUI count(s)

Understanding the rules of engagement right up Understanding the rules of engagement right up front is the key to both the bringing of the motion front is the key to both the bringing of the motion and opposing the motion – sounds simple, but and opposing the motion – sounds simple, but it’s missed all the time it’s missed all the time

Page 4: Motions In DUI Cases Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us 831-647-7975 Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us.

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Begin your “Motions” Begin your “Motions” evaluation with evaluation with relevancerelevance

We know that some trial judges and We know that some trial judges and defense attorneys don’t understand the defense attorneys don’t understand the application of E.C. Section 352, right?application of E.C. Section 352, right?

How many times have we heard, “hey, How many times have we heard, “hey, that’s too damaging to my client!” that’s too damaging to my client!”

Keep a firm grip on E.C. Sections 210, 351 Keep a firm grip on E.C. Sections 210, 351 and 352 and NEVER let go! and 352 and NEVER let go!

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E.C. Section 210 and V.C. 23152(a)(b) E.C. Section 210 and V.C. 23152(a)(b)

E.C. 210: “Relevant evidence” means evidence E.C. 210: “Relevant evidence” means evidence relevant to the credibility of a witness or hearsay relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to declarant, having any tendency in reason to prove or disprove any disputed fact that is prove or disprove any disputed fact that is ofof consequenceconsequence to the determination of the action. to the determination of the action.

It pays to know what is “of consequence” in a It pays to know what is “of consequence” in a DUI case – this means knowing the elements of DUI case – this means knowing the elements of 23152(a)(b) like the back of your hand23152(a)(b) like the back of your hand

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23152(a) and CALCRIM 211023152(a) and CALCRIM 2110To prove that the defendant is guilty of this To prove that the defendant is guilty of this crime, the People must prove that:crime, the People must prove that:

1.1. The defendant The defendant drovedrove a vehicle; a vehicle;

ANDAND

2.2. When the defendant drove, the defendant was When the defendant drove, the defendant was under the influenceunder the influence of (an alcoholic beverage/[or] of (an alcoholic beverage/[or] a drug) [or under the combined influence of an a drug) [or under the combined influence of an alcoholic beverage and a drug].alcoholic beverage and a drug].

Remember that you will Remember that you will usuallyusually be relying on be relying on circumstantial evidence to prove these elements circumstantial evidence to prove these elements

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23152(b) and CALCRIM 211123152(b) and CALCRIM 2111

To prove that the defendant is guilty of To prove that the defendant is guilty of this crime, the People must prove that:this crime, the People must prove that:

1.1. The Defendant The Defendant drovedrove a vehicle; a vehicle;

ANDAND

2.2. When he drove, the defendant’s blood When he drove, the defendant’s blood alcohol level was alcohol level was 0.08 percent or more0.08 percent or more by weight,…[Rebuttable Presumption]by weight,…[Rebuttable Presumption]

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Say “No” to sloppy applications of 352Say “No” to sloppy applications of 352

The Rule:The Rule:

““The court in its discretion may exclude The court in its discretion may exclude evidence if its probative value is evidence if its probative value is substantially outweighedsubstantially outweighed by the probability by the probability that its admission will (a) necessitate that its admission will (a) necessitate undue consumption of time or (b) create undue consumption of time or (b) create substantial danger of undue prejudice, of substantial danger of undue prejudice, of confusing issues, or misleading the jury.”confusing issues, or misleading the jury.”

Page 9: Motions In DUI Cases Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us 831-647-7975 Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us.

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Balancing Probative Value Balancing Probative Value v.v.

Undue PrejudiceUndue Prejudice

This is a big balancing act and often very This is a big balancing act and often very challenging for prosecutorschallenging for prosecutors

The challenge? It’s discretionary and The challenge? It’s discretionary and some prosecutors balk at making the some prosecutors balk at making the record and forcing some type of rationalerecord and forcing some type of rationale

The potential cure? Demand an accurate The potential cure? Demand an accurate definition of the term “prejudice” definition of the term “prejudice”

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““Prejudice” Defined Prejudice” Defined

In applying section 352, “prejudicial” is not In applying section 352, “prejudicial” is not synonymous with ‘damaging.’” synonymous with ‘damaging.’” People v. People v. Karis Karis (1988) 46 Cal. 3d 612, 638(1988) 46 Cal. 3d 612, 638

This relates to the slide #4 referenceThis relates to the slide #4 reference

The minute 352 is raised, call-up the real The minute 352 is raised, call-up the real elements/factorselements/factors

Use the language of 352 and the case law Use the language of 352 and the case law in order to set the boundaries in order to set the boundaries

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Case law on Probative ValueCase law on Probative Valuevs.vs.

Undue PrejudiceUndue Prejudice

People v. Ford People v. Ford (1964) 60 Cal. 2d. 772: (1964) 60 Cal. 2d. 772: The record must show court’s statutory The record must show court’s statutory duty was exercised.duty was exercised.

People v. Williams People v. Williams (1997) 16 Cal. 4(1997) 16 Cal. 4thth 153, 153, 213: This case is in the Bench Book 213: This case is in the Bench Book (Jefferson’s) and most TJ’s will know it (Jefferson’s) and most TJ’s will know it and use it. I call this the “no paper trail” and use it. I call this the “no paper trail” case,…here’s whycase,…here’s why

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People v. Williams, People v. Williams, cont.cont.

Key language from Key language from WilliamsWilliams: :

““A trial court need not expressly weigh A trial court need not expressly weigh prejudice against probative value, or even prejudice against probative value, or even expressly state that it has done so. All expressly state that it has done so. All that is required is that the record that is required is that the record demonstrate the trial court understood and demonstrate the trial court understood and fulfilled its responsibilities under EC fulfilled its responsibilities under EC section 352.” section 352.”

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Williams Williams and Discretion and Discretion

The The Williams Williams authority is what causes authority is what causes many prosecutors to go into retreat modemany prosecutors to go into retreat mode

Williams Williams seems to suggest that the party seems to suggest that the party opposing the 352 motion c/n insist on opposing the 352 motion c/n insist on documented rationale – NOT TRUEdocumented rationale – NOT TRUE

You must find a diplomatic way to get the You must find a diplomatic way to get the TJ to articulate his/her thought processTJ to articulate his/her thought process

Do not throw in the towel! Do not throw in the towel!

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You judge You judge The JudgeThe Judge

Is the TJ reaching out for guidance? V.J. Is the TJ reaching out for guidance? V.J. or just left a civil stint?or just left a civil stint?

Remember that the prejudice MUST BE Remember that the prejudice MUST BE SUBSTANTIAL – hold D/C’s feet to the fireSUBSTANTIAL – hold D/C’s feet to the fire

Avoid the “let’s see how it goes” ruling – Avoid the “let’s see how it goes” ruling – you want direction and clear rules of you want direction and clear rules of engagementengagement

Page 15: Motions In DUI Cases Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us 831-647-7975 Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us.

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In Limine Motions In Limine Motions Written v. OralWritten v. Oral

Got time? Write it up! Got time? Write it up!

Often, one size fits all, so draft a stellar Often, one size fits all, so draft a stellar motion and use it as a templatemotion and use it as a template

Repeated issues: HGN and PASRepeated issues: HGN and PAS

Some things I’ve heard from TJ’s: The Some things I’ve heard from TJ’s: The written motion “shows commitment” and “I written motion “shows commitment” and “I like to see the law cited.” like to see the law cited.”

Page 16: Motions In DUI Cases Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us 831-647-7975 Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us.

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Offense vs. DefenseOffense vs. DefensePAS and HGN PAS and HGN

Poll the attendees on the PASPoll the attendees on the PAS

Is PAS admissibility receiving mixed Is PAS admissibility receiving mixed treatment? treatment?

Are your judges letting it in for presence Are your judges letting it in for presence only? only?

Is your office policy/tactic to move it in for Is your office policy/tactic to move it in for both presence and the result? both presence and the result?

Page 17: Motions In DUI Cases Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us 831-647-7975 Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us.

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Let’s get interactive and talk about thisLet’s get interactive and talk about this

Hypo: Assume that you are prosecuting a Hypo: Assume that you are prosecuting a 23152(a)(b) and that you want the PAS in 23152(a)(b) and that you want the PAS in for both presence and the result and your for both presence and the result and your TJ is leaning towards “presence only.” TJ is leaning towards “presence only.”

I know it depends on the facts, but let’s I know it depends on the facts, but let’s talk about some arguments in favor of talk about some arguments in favor of “presence plus result.” “presence plus result.”

Start with the basicsStart with the basics

Page 18: Motions In DUI Cases Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us 831-647-7975 Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us.

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PAS FOR PRESENCE AND RESULTPAS FOR PRESENCE AND RESULT

Cal. Const. Art.1, Section 28, subd. (d)Cal. Const. Art.1, Section 28, subd. (d)

Evid. Code Section 351Evid. Code Section 351

1.1. It’s the test given closest to the time of It’s the test given closest to the time of driving and “impaired driving” is the driving and “impaired driving” is the offenseoffense

2.2. The PAS blow registered 0.09 and the The PAS blow registered 0.09 and the next test (blood or breath) registered next test (blood or breath) registered 0.08 0.08

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Don’t let the defense cut you off at the PASDon’t let the defense cut you off at the PAS

The admissibility challenge to the PAS is The admissibility challenge to the PAS is made via EC Section 402 in limine motionmade via EC Section 402 in limine motion

Why let the D be the moving party? You Why let the D be the moving party? You reach it offensively in YOUR MOTIONreach it offensively in YOUR MOTION

Advantages: you bombard the court with Advantages: you bombard the court with the overwhelming amount of authority the overwhelming amount of authority supporting PAS admissibility – you get supporting PAS admissibility – you get there first! there first!

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EC Section 402 and PAS Admissibility EC Section 402 and PAS Admissibility

Any challenge to admissibility may be Any challenge to admissibility may be made in an EC Section 402 in limine made in an EC Section 402 in limine motion. To justify the admission in motion. To justify the admission in evidence of the results of the PAS test, the evidence of the results of the PAS test, the prosecution will be required to prosecution will be required to demonstrate that it will pass demonstrate that it will pass People v. People v. Williams Williams scrutinyscrutiny

EC 405 is also applicableEC 405 is also applicable

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Why let this develop like a challenge?Why let this develop like a challenge?

Instead of waiting to be challenged by the Instead of waiting to be challenged by the defense, come out firing in your motion in defense, come out firing in your motion in limineliminePreemptive strike valuePreemptive strike valueHas the benefit of undermining defense Has the benefit of undermining defense claims/argumentsclaims/argumentsLet’s take a look at the sample PAS Let’s take a look at the sample PAS motions and get the rhythm of the motions and get the rhythm of the argument down argument down

Page 22: Motions In DUI Cases Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us 831-647-7975 Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us.

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Prep/Inform your OfficerPrep/Inform your Officer

If your going to 402 or 405 hearing, your officer If your going to 402 or 405 hearing, your officer is the star witness – it is a quality control hearing is the star witness – it is a quality control hearing and your officer needs to know the drilland your officer needs to know the drill

Work through the Work through the Adams Adams foundational foundational prerequisites prerequisites

Your officer does not need to lead a science Your officer does not need to lead a science class on fuel cell technology – the basic class on fuel cell technology – the basic workings of the PAS instrument is enoughworkings of the PAS instrument is enough

Page 23: Motions In DUI Cases Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us 831-647-7975 Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us.

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Adams Adams Foundation cont. Foundation cont.

The question of whether the PAS was in The question of whether the PAS was in working order (prong 1) can lead to an working order (prong 1) can lead to an issue of calibration and maintenance of issue of calibration and maintenance of the instrument – this may mean calling the instrument – this may mean calling more than one witness (agencies vary)more than one witness (agencies vary)

Page 24: Motions In DUI Cases Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us 831-647-7975 Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us.

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HGN – See Sample Motion HGN – See Sample Motion

Highlight al the factors pointing to Highlight al the factors pointing to admissibilityadmissibility

The The NHTSA NHTSA endorsementendorsement

The studiesThe studies

Let’s track the head notes/arguments in Let’s track the head notes/arguments in the sample motionthe sample motion

Page 25: Motions In DUI Cases Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us 831-647-7975 Stephen F. Wagner T.S.R.P. (Coastal Region) wagners@co.monterey.ca.us.

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