J oseph S . P assanise

1. DWI Symposium, 4th Annual Getting the Judge to say the word “Sustained” to a Defense Counsel’s Motion: A Tricky Proposition Joseph S. Passanise 2974 E. Battlefield Springfield, MO 65804 Phone: (417) 882-9300 Fax: (417) 882-9310 - w w w . e n t r a p p e d . c o m -

2. Getting the Judge to say the word “Sustained”

3. Getting the Judge to say the word “Sustained” • Movie Clip Link – Drunk Golf Guy

4. Getting the Judge to say the word “Sustained” • Movie Clip Link – My Cousin Vinny

5. Getting the Judge to say the word “Sustained” General Overview • Anatomy of a DWI (Case Law) • The Stop • Pre-Arrest Tests (Field Sobriety Tests) • Post-Arrest (Breath Test) • Miscellaneous • Investigatory Subpoena • State v. Adams • Admissibility of Scientific Evidence

6. Getting the Judge to say the word “Sustained” General Overview (cont.) • Evidence-Admission of NHTSA Guidelines • Motions A. Client Cleanup B. Initial Motions C. Pre-Trial D. Trial

7. Getting the Judge to say the word “Sustained” Anatomy of a DWI 1. The Stop 2. Pre-Arrest—FST’s 3. Post-Arrest—Breath Test

8. Getting the Judge to say the word “Sustained” The Stop – It Doesn’t Take Much! 1. Moving Traffic Violation/Equipment Violation A. Speeding B. Turn Signal C. Stop Sign D. Cross Center Line E. License Plate Light Out F. Expired Tags G. Tail Light Out H. Cracked Windshield I . Headlight Out

9. Getting the Judge to say the word “Sustained” The Stop – It Doesn’t Take Much! (cont.) 2. Reasonable Suspicion/“Unusual Operation” A. State v. Huckin, 847 S.W.2d 951 (S.D. 1993) 1. “In order to make a valid traffic stop, the officer need only have a reasonable suspicion criminal activity is taking place when he makes the stop.” B. State v. Malaney, 871 S.W.2d 634 (S.D. 1994)

10. Getting the Judge to say the word “Sustained” The Stop – It Doesn’t Take Much! (cont.) 3. ‘Good Faith’ Exception? A. Teat v. Director of Revenue, 806 S.W.2d 754 (W.D. 1991) 1. One way street sign ordinance not passed B. People v. Hamilton, 102 Cal. App. 4th 1311 (2002) 1. Plates renewed, but lag in computer reporting

11. Getting the Judge to say the word “Sustained” The Stop – It Doesn’t Take Much! (cont.) 4. The Small Town Excuse for the Stop A. State v. Spurgeon, 907 S.W.2d 798 (S.D. 1995) 1. Pulled Defendant Over Previously

12. Getting the Judge to say the word “Sustained” Some Hope Out There 1. Read the Statute/Ordinance A. RSMO §301.020-single lane 2. Case Law (Examples) • State v. Abeln, 136 S.W.3d 803 (W.D. 2004), fog lane case • State v. Mendoza, 75 S.W.3d 842 (S.D. 2002), move over law • State v. Johnson, 148 S.W.3d 338 (W.D. 2004), defendant dropped off a person and entered flow of traffic without turn signal

13. Getting the Judge to say the word “Sustained” Some Hope Out There 3. No Hunches A. State v. Schmutz, 100 S.W.3d 876 (S.D. 2003) 4. Uncorroborated, Observational Testimony By Officer

14. Getting the Judge to say the word “Sustained” Pre-Arrest 1. Field Sobriety Tests A. HGN B. Walk Straight Line C. Stand on One Foot D. Portable Breath Test

15. Getting the Judge to say the word “Sustained” Field Sobriety Testing 1. State v. Rose, 86 S.W.3d 90 (W.D. 2002) 2. Brown v. Director of Revenue, 85 S.W.3d 1 (MO S. Ct. 2002)

16. Getting the Judge to say the word “Sustained” Portable Breath Tests 1. State v. Stottlemyre, 35 S.W.3d 854 (W.D. 2001) 2. State v. Duncan, 27 S.W.3d 486 (E.D. 2000) 3. Paty v. Director of Revenue, 168 S.W.3d 625 (E.D. 2003) 4. York v. Director of Revenue, 186 S.W.3d 267 (MO S. Ct. 2006)

17. Getting the Judge to say the word “Sustained” York - Argue The Mere Fact that an Individual Exhibited: 1. Bloodshot Eyes 2.Watery/Glassy Eyes 3. Odor of Alcohol on Breath 4. Admits to Drinking DOES NOT REQUIRE A FINDING OF P/C

18. Getting the Judge to say the word “Sustained” Breath Test 1. Coyle v. Director of Revenue, 181 S.W.3d 62 (S. Ct. 2005) 2.Bhakta v. Director of Revenue, 182 S.W.3d 662 (E.D. 2006) 3. Martin v. Director of Revenue, 142 S.W.3d 851 (S.D. 2006) 4. Vanderpool v. Director of Revenue, (W.D. 2006)

19. Getting the Judge to say the word “Sustained” Miscellaneous 1. Investigatory Subpoenas A. RSMO §56.085, Medical Records

20. Getting the Judge to say the word “Sustained” Miscellaneous (Cont.) • RSMO §56.085 • In the course of a criminal investigation, the prosecuting or circuit attorney may request the circuit or associate circuit judge to issue a subpoena to any witness who may have information for the purpose of oral examination under oath to require the production of books, papers, records, or other material of any evidentiary nature at the office of the prosecuting or circuit attorney requesting the subpoena

21. Getting the Judge to say the word “Sustained” Miscellaneous (Cont.) 2. State v. Adams, 163 S.W.3d 35 (S.D. 2005) 3. Admissibility of Scientific Evidence A. Criminal • Frye v. United States, 293 F 1013 (DC 1923) B. Civil • State Board of Registration for Healing Arts v. McDonagh, 123 S.W.3d 146 (MO S. Ct. 2003)

22. Getting the Judge to say the word “Sustained” Miscellaneous (Cont.) • RSMO §490.065 Admissibility of Scientific Evidence • 490.065. 1 “1. In any civil action, if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. “Id.

23. Getting the Judge to say the word “Sustained” Miscellaneous (Cont.) • 490.065. 3 “3. The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonable relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable. “Id.

24. Getting the Judge to say the word “Sustained” Evidence – Admission of NHTSA Guidelines 1. RSMO §490.220 – U.S. Gov. Records Exception A. Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47 (MO S. Ct. 1999) 1. Establish Officer Trained under NHTSA 2. Since 1984, Dept. of Public Safety 3. Certified Copy 2. Trade Journal Exception A. Stuart v. Director of Revenue, 761 S.W.2d 234 (S.D. 1988) B. PBT Manuel

25. Getting the Judge to say the word “Sustained” Motions I. Client Clean Up II. Initial Motions III. Pre-Trial IV. Trial

26. Getting the Judge to say the word “Sustained” Motions (Cont.) I. Client Clean Up A. Application to Expunge DWI B. Judgment for Expungement of DWI C. Application to Expunge MIP D. Judgment for Expungement of MIP E. 12CSR Letter to remove old tickets

27. Getting the Judge to say the word “Sustained” Motions (Cont.) II. Initial Motions 1. Entry of Appearance/Bill of Particulars 2. Motion for Disclosure of Impeaching Information 3. Motion for Discovery-DWI (General) 4. Defendant’s Request for Disclosure by Court Order

28. Getting the Judge to say the word “Sustained” Motions (Cont.) III. Pre-Trial Motions 5. Motion for Specific Discovery of Officer’s Training Manuel 6. Motion for Specific Discovery of Breath Machine Maintenance Records 7. Motion for Specific Discovery of Portable Breath Test Device 8. Motion for Specific Discovery of Criminalist’s Records 9. Motion to Suppress (General)

29. Getting the Judge to say the word “Sustained” Motions (Cont.) III. Pre-Trial Motions (Cont.) 10. Motion to Suppress Chemical Test 11. Motion in Limine (DRE) 12. Motion to Suppress Opinion Testimony of Officer Regarding Intoxication 13. Motion to Suppress Opinion Testimony of Officer Regarding the Issue of Intoxication 14. Defendant’s Motion to Suppress and/or Motion in Limine to Exclude Blood Test Results from Evidence During Trial and Memorandum of Law in Support of Motion

30. Getting the Judge to say the word “Sustained” Motions (Cont.) III. Pre-Trial Motions (Cont.) 15. Defendant’s Motion to Redact Objectionable Portions of Video/Audio Tape Evidence and Defendant’s Motion in Limine 16. Motion to Suppress Investigative Materials Obtained by Use of an Investigative Subpoena 17. Motion for Admission of Polygraph Procedure and Test Results

31. Getting the Judge to say the word “Sustained” Motions (Cont.) III. Pre-Trial Motions (Cont.) 18. Defendant’s Motion in Limine to Preclude Admission of Evidence at Trial Correlating Defendant’s Performance on Standardized Field Sobriety Tests with a Specific Blood Alcohol Content 19. Preclude Admission of Evidence at Trial Relating to the Portable Breath Test

32. Getting the Judge to say the word “Sustained” Motions (Cont.) III. Pre-Trial Motions (Cont.) 20. Motion In Limine to Preclude Admission of Evidence at Trial of Defendant’s Alleged Refusal to Submit to Field Sobriety Testing 21. Defendant’s Response to State’s Request for Discovery

33. Getting the Judge to say the word “Sustained” Motions (Cont.) IV. Trial Motions 22. Defendant’s Objection to Admission of Breath Test Results 23. Objection to Criminalist’s Test Results 24. Motion for Judgment of Acquittal at the Close of State’s Evidence 25. Motion for Judgment of Acquittal at the Close of All Evidence

34. Getting the Judge to say the word “Sustained” Trial (Cont.) B. Proffer C. Object at Time of Admission of Evidence By State D. Bench Trial • No Motion for New Trial

35. Getting the Judge to say the word “Sustained” • Movie Clip Link – Liar Liar

36. Thank You Getting the Judge to say the word “Sustained” to a Defense Counsel’s Motion: A Tricky Proposition Joseph S. Passanise 2974 E. Battlefield Springfield, MO 65804 Phone: (417) 882-9300 Fax: (417) 882-9310 - W W W . E N T R A P P E D . C O M -