What is a motion and is it possible to use a motion to have the state dismiss a DUI or criminal case without pleading guilty and without having to have trial?
There are procedures called “pre-trial motions.” Pre-trial motions include a Motion to Quash the Arrest, Motion to Suppress the Breath Sample, and Motion to Exclude Illegally Obtained Evidence.
How do these motions work?
A motion allows me to call the arresting police officer to testify about what happened at the time of arrest. For example, the officer will have to testify concerning how he or she came in contact with you in the first place (why he or she pulled you over). This also includes observations the officer made, what investigation methods he or she used, etc. The arresting officer’s testimony and follow-up (cross examination) has the possibility to show the Judge that the police officer did not have enough evidence to arrest you. The amount of evidence or facts the police have to have to place someone under arrest is referred to as “probable cause.” Probable Cause is defined by the United States Supreme Court as a reasonable belief that someone has committed a crime.
By questioning the police officer about his or her steps in the investigation and the knowledge he or she had at the time of arrest, I may be able to show the judge that the officer did not act in a reasonable manner when they placed you under arrest.
A police officer generally starts a DUI investigation by asking someone “how much they had to drink.” The typical answer is “1-2.” At this point, an officer will ask a person to step out of the car to perform Field Sobriety Tests.
This initial interaction is an opportunity to show that the police officer was not acting reasonably. I will typically ask the testifying officer the questions below after they testify that they were taught never to jump to conclusion but to gather evidence by asking questions:
Did you ask my client what time he or she started drinking?
Additionally, did you ask my client what time he or she stopped drinking?
Did you ask my client what he or she was actually drinking? (Usually a person just says, “drinks” and not “beer” or “wine.”)
Did you ask my client the size of the drinks?
These are some of the questions I ask an officer at a hearing. However, there are about 200 questions in all. By using this approach, I can show that the arresting officer jumped to a conclusion rather than conduced a fair investigation.
This is exactly what happened when I recently handled a motorcycle DUI accident. My client fell off of his motorcycle and landed in a ditch. When the police officer arrived, she smelled alcohol. Furthermore, she saw that my client had a flushed face, red glassy eyes, and slurred speech. My client also admitted to drinking alcohol. He was taken to the hospital. When the officer arrived at the hospital, my client refused to perform any field sobriety tests.
I questioned the officer and asked about her observations and whether what she saw was a result of alcohol consumption or injuries. Afterward, the judge ruled that the arresting officer did not conduct the investigation properly. I had the case dismissed before trial. Additionally, the judge rescinded the Statutory Summary Suspension.
Topics on DUI: