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

Motions In DUI CasesStephen F. WagnerT.S.R.P. (Coastal Region)wagners@co.monterey.ca.us831-647-7975Stephen F. WagnerT.S.R.P. (Coastal Region)wagners@co.monterey.ca.us831-647-7975 Motions in DUI Cases Punch, Don’t Counter-punch!

Funding for this program was provided by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration • Pretrial Motions and Going on the offensive!

General Considerations Expanding and Limiting the Playing Field • Most of the trial motions deal with the admissibility of evidence and “admissibility” is directly linked to relevance • “Relevance” is directly linked to the prima facie or threshold elements of your DUI count(s) • Understanding the rules of engagement right up front is the key to both the bringing of the motion and opposing the motion – sounds simple, but it’s missed all the time

Begin your “Motions” evaluation with relevance • We know that some trial judges and defense attorneys don’t understand the application of E.C. Section 352, right? • How many times have we heard, “hey, that’s too damaging to my client!” • Keep a firm grip on E.C. Sections 210, 351 and 352 and NEVER let go!

E.C. Section 210 and V.C. 23152(a)(b) • E.C. 210: “Relevant evidence” means evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is ofconsequence to the determination of the action. • It pays to know what is “of consequence” in a DUI case – this means knowing the elements of 23152(a)(b) like the back of your hand

23152(a) and CALCRIM 2110 • To prove that the defendant is guilty of this crime, the People must prove that: • The defendant drove a vehicle; AND • When the defendant drove, the defendant was under the influence of (an alcoholic beverage/[or] a drug) [or under the combined influence of an alcoholic beverage and a drug]. • Remember that you will usually be relying on circumstantial evidence to prove these elements

23152(b) and CALCRIM 2111 • To prove that the defendant is guilty of this crime, the People must prove that: • The Defendant drove a vehicle; AND 2. When he drove, the defendant’s blood alcohol level was 0.08 percent or more by weight,…[Rebuttable Presumption]

Say “No” to sloppy applications of 352 The Rule: • “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing issues, or misleading the jury.”

Balancing Probative Value v.Undue Prejudice • This is a big balancing act and often very challenging for prosecutors • The challenge? It’s discretionary and some prosecutors balk at making the record and forcing some type of rationale • The potential cure? Demand an accurate definition of the term “prejudice”

“Prejudice” Defined • In applying section 352, “prejudicial” is not synonymous with ‘damaging.’” People v. Karis (1988) 46 Cal. 3d 612, 638 • This relates to the slide #4 reference • The minute 352 is raised, call-up the real elements/factors • Use the language of 352 and the case law in order to set the boundaries

Case law on Probative Valuevs.Undue Prejudice • People v. Ford (1964) 60 Cal. 2d. 772: The record must show court’s statutory duty was exercised. • People v. Williams (1997) 16 Cal. 4th 153, 213: This case is in the Bench Book (Jefferson’s) and most TJ’s will know it and use it. I call this the “no paper trail” case,…here’s why

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

Williams and Discretion • The Williams authority is what causes many prosecutors to go into retreat mode • Williams seems to suggest that the party opposing the 352 motion c/n insist on documented rationale – NOT TRUE • You must find a diplomatic way to get the TJ to articulate his/her thought process • Do not throw in the towel!

You judge The Judge • Is the TJ reaching out for guidance? V.J. or just left a civil stint? • Remember that the prejudice MUST BE SUBSTANTIAL – hold D/C’s feet to the fire • Avoid the “let’s see how it goes” ruling – you want direction and clear rules of engagement

In Limine Motions Written v. Oral • Got time? Write it up! • Often, one size fits all, so draft a stellar motion and use it as a template • Repeated issues: HGN and PAS • Some things I’ve heard from TJ’s: The written motion “shows commitment” and “I like to see the law cited.”

Offense vs. DefensePAS and HGN Poll the attendees on the PAS • Is PAS admissibility receiving mixed treatment? • Are your judges letting it in for presence only? • Is your office policy/tactic to move it in for both presence and the result?

Let’s get interactive and talk about this • Hypo: Assume that you are prosecuting a 23152(a)(b) and that you want the PAS in for both presence and the result and your TJ is leaning towards “presence only.” • I know it depends on the facts, but let’s talk about some arguments in favor of “presence plus result.” • Start with the basics

PAS FOR PRESENCE AND RESULT • Cal. Const. Art.1, Section 28, subd. (d) • Evid. Code Section 351 • It’s the test given closest to the time of driving and “impaired driving” is the offense • The PAS blow registered 0.09 and the next test (blood or breath) registered 0.08

Don’t let the defense cut you off at the PAS • The admissibility challenge to the PAS is made via EC Section 402 in limine motion • Why let the D be the moving party? You reach it offensively in YOUR MOTION • Advantages: you bombard the court with the overwhelming amount of authority supporting PAS admissibility – you get there first!

EC Section 402 and PAS Admissibility • Any challenge to admissibility may be made in an EC Section 402 in limine motion. To justify the admission in evidence of the results of the PAS test, the prosecution will be required to demonstrate that it will pass People v. Williams scrutiny • EC 405 is also applicable

Why let this develop like a challenge? • Instead of waiting to be challenged by the defense, come out firing in your motion in limine • Preemptive strike value • Has the benefit of undermining defense claims/arguments • Let’s take a look at the sample PAS motions and get the rhythm of the argument down

Prep/Inform your Officer • If your going to 402 or 405 hearing, your officer is the star witness – it is a quality control hearing and your officer needs to know the drill • Work through the Adams foundational prerequisites • Your officer does not need to lead a science class on fuel cell technology – the basic workings of the PAS instrument is enough

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

HGN – See Sample Motion • Highlight al the factors pointing to admissibility • The NHTSA endorsement • The studies • Let’s track the head notes/arguments in the sample motion

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