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Motions Hearings in A DUI Case

What Is a Motion Hearing in A DUI Case?

A great deal of the anxiety associated with motions is derived from a failure to define the purpose of the hearing. I pursue motions in nearly every case that I have. It takes time, effort, and a willingness to tolerate deriding comments from prosecutors and eye-rolling from some judges. On the basis of the very minimal discovery that we receive in DUI cases, I very frequently do not have a well-founded basis to believe that the trial court will grant my probable cause motion, but I pursue those motions the vast majority of the time. So, short of being a glutton for punishment, I recognize that I must have some alternative motivation.

There are 5 basic purposes of motions:

  • Exclusion of unfavorable evidence;[1]
  • Trial preparation;
  • Improving the plea offer;
  • Diversion; and
  • Dismissal of the charges

Exclusion of Unfavorable Evidence

Criminal defense lawyers laugh all of the time about filing “Motions to Change the Facts.” Often, we recognize that there are some facts that, if introduced to the jury, will create a problem for the most well-presented defense. Larry Pozner and Roger Dodd have referred to these as facts beyond change. “Facts beyond change are facts that will be believed by the jury as fair, accurate, and highly relevant regardless of best efforts to dispute or modify them.”[2]

A motion to suppress or motion in limine is your opportunity to change the facts of the case.

A motion to suppress evidence [or motion in limine] is a motion to delete certain facts beyond change. To the extent that a motion to suppress evidence [or motion in limine] succeeds in a whole or in part, these facts beyond change disappear from the lawsuit. Since the suppressed facts are never available to the fact finder, they cannot be facts in dispute. They cannot be facts of the lawsuit. They cannot be facts beyond change.[3]

For example, in a DUI-refusal case, if your client makes a statement after arrest that he “should not have been driving.” You unquestionably want to attack the admissibility of this statement. If the statement is admitted during the course of the trial, it is highly likely that the jury will treat this statement as an admission that your client was “less safe” to drive.

Creating a Trial Advantage and Improving the Plea Offer

If success at a motion to suppress is defined in terms of having the motion granted, success is seldom achieved. The most common use of motions to suppress is to develop a trial advantage and, consequently, improve the plea offer.

We develop a trial advantage by demonstrating to the prosecutor various problems with their case. For example, let us look at a case in which the arrest report described a defendant as “faking” when attempting to blow into the breath testing machine. However, the discovery showed that our client submitted “sufficient” samples, but the first sample produced an “invalid sample” result at 12:03 a.m. The officer subsequently tested our client at 12:08 a.m. and 12:11 a.m., which produced results of .099 and .110. The performance of the defendant’s breath test directly violates the 20 minute waiting period. However, these results are admissible in Georgia.[4] Use the motions hearing as an opportunity to have the officer tell the prosecutor that he failed to adhere to his training in the administration of the breath test and he incorrectly recorded the evidence in his incident report.

Cases improve during the course of live testimony. During motion hearings, issues are developed and some just arise which were previously unknown. Cases that seem hopeless develop hope. Be rigorous in your preparation, and you will uncover favorable evidence. When you develop favorable evidence, plea offers improve (i.e., the DUI is frequently dismissed or “reduced”).

Even in a motion hearing where the evidence does not change substantially during the hearing, you have an opportunity to lock the officer into his testimony. You have an opportunity to observe the officer’s testimony and to observe his demeanor. Learning how the officer addresses difficult issues prior to the trial can be the difference between winning and losing at trial.

There is one final note on the use of motions to prepare for trial: have the motions taken down and transcribed. See, Rule 11 of the Dirty Dozen Rules (below). Having a transcript to prepare from for trial is invaluable.

Use of a Motion Hearing as a Diversion

Officers remember those of us who rigorously cross-examine them. Have you ever had an officer who knew nothing about the administration of the horizontal gaze nystagmus test during a motion hearing, testify as if he was an expert on the horizontal gaze nystagmus test during trial? No, most officers do not undergo a SFST refresher course immediately prior to a trial. Instead, officers (and prosecutors) remember the painful attack that they underwent at a motion hearing and they prepare accordingly. Frequently, this results in what appears to be a contrived over-emphasis. You can use their preparation to your advantage over the course of the trial.

Perhaps you observe an officer performing a phase of the HGN test too slowly. You recognize the problem, but you also recognize that your trial judge will not likely exclude this evidence based on Tousley or Sultan. Rigorous cross-examination of the officer at the motion on the importance of strict compliance with the NHTSA protocol for the administration of the HGN test can cause the prosecution to over-emphasize the deviation from the guidelines in the course of the trial. You can then change your attack on the HGN from administration to a “So what?” approach.[5]

WHAT IS SUFFICIENT “PARTICULARIZATION” OF A MOTION TO SUPPRESS?

If you regularly file motions to suppress, you will undoubtedly run into a prosecutor who will argue that your motion is not sufficiently particularized. Motions to suppress are authorized by O.C.G.A. § 17-5-30, which provides:

(a) A defendant aggrieved by an unlawful search and seizure may move the court for the return of property, the possession of which is not otherwise unlawful, and to suppress as evidence anything so obtained on the grounds that:

(1) The search and seizure without a warrant was illegal; or

(2) The search and seizure with a warrant was illegal because the warrant is insufficient on its face, there was not probable cause for the issuance of the warrant, or the warrant was illegally executed.

(b) The motion shall be in writing and state facts showing that the search and seizure were unlawful. The judge shall receive evidence out of the presence of the jury on any issue of fact necessary to determine the motion; and the burden of proving that the search and seizure were lawful shall be on the state. If the motion is granted the property shall be restored, unless otherwise subject to lawful detention, and it shall not be admissible in evidence against the movant in any trial.

(c) The motion shall be made only before a court with jurisdiction to try the offense. If a criminal accusation is filed or if an indictment or special presentment is returned by a grand jury, the motion shall be made only before the court in which the accusation, indictment, or special presentment is filed and pending.

Dean v. State, 246 Ga. App. 263, 540 S.E.2d 246 (2000), directly addresses the requirements of particularity of O.C.G.A. 17-5-30. In Dean, the defendants motion(s) to suppress included the following:

Each motion alleged that on or about the date set forth in the accusation, Dean was approached, questioned, unlawfully detained, and arrested by (unnamed) law enforcement officers; that these actions were taken without probable cause and without specific and articulable facts reasonably warranting an investigatory stop under Terry v. Ohio; that incident to each stop he was frisked and a small bag allegedly containing marijuana was taken from the front pocket of his jacket; and that each frisk was conducted without his consent or probable cause.

Id. at 263 (citations omitted).

The trial court in Dean relied upon Rouse v. State, 241 Ga. App. 167, 567 S.E.2d 360 (1999), in dismissing the defendant’s motion(s) to suppress based upon a lack particularization. Reversing the trial court’s dismissal of the motions, the Court of Appeals held:

In cases involving warrantless searches, the factual showing required by OCGA § 17-5-30 need not be made in great detail, because in such cases ‘many of the necessary allegations are negative facts (e.g., the search was conducted without a warrant, the movant did not consent to the search) and conclusions based upon mixed questions of law and negative fact (e.g., the officer lacked probable cause to arrest or search).’ [Cit.] In such cases, motions to suppress are held sufficient if they ‘put the state on notice as to the type of search involved (without warrant vs. with warrant), which witness to bring to the hearing on the motion, and the legal issues to be resolved at that hearing.’

Id., quoting, Young v. State, 225 Ga. App 208-209, 483 S.E.2d 636 (1997) (emphasis added).

Dean is also helpful in addressing the sufficiency of a motion where we cannot identify the names of all of the officers that participated in the stop and investigation of our clients. In Dean, the defendant’s motion did not identify the officers that participated in his arrest. Nonetheless, the Court held that the state was put on sufficient notice as to which officers were required to satisfy its burden of proof:

Did the suppression motions put the State on notice as to the witnesses whose testimony was required? For essentially two reasons, we conclude that they did. To begin with, the transcript of the hearing on the motions shows that the State did bring law enforcement officers to testify. “Moreover, the State did not argue at the hearing that deficiencies in the motions left it unable to ascertain the identity of needed witnesses.” Therefore, failure of the motions to identify the officers conducting the stops and frisks, and to more fully detail the attendant facts, was not fatal to the sufficiency of the motions.

THERE IS A SIMPLE ANSWER TO OBJECTIONS TO THE TIMELINESS OF MOTIONS IN YOUR GEORGIA DUI CASES.

Every now and then, a prosecutor will attempt to object to the Court’s consideration of motions/objections regarding the admissibility of evidence based on the issued being raised at the improper time (or too late).  Nearly every issue that can and should be raised in a DUI case in Georgia may be raised by a motion in limine.  As discussed in the cases below, a prosecutor’s objection to a motion in limine raised at or immediately prior to trial should be overruled:

“‘In limine’ means ‘at the threshold’ or before the trial begins. State v. Johnston, 249 Ga. 413, 414 (fn. 3), 291 S.E.2d 543 (1982), quoting, Stevens v. State, 265 Ind. 411, 354 N.E.2d 727, 733 (1976).

A motion in limine is a pretrial motion which may be used two ways: 1) The movant seeks, not a final ruling on the admissibility of evidence, but only to prevent the mention by anyone, during the trial, of a certain item of evidence or area of inquiry until its admissibility can be determined during the course of the trial outside the presence of the jury[; and] 2) The movant seeks a ruling on the admissibility of evidence prior to the trial. The trial court has an absolute right to refuse to decide the admissibility of evidence, allegedly violative of some ordinary rule of evidence, prior to trial. If, however, the trial court decides to rule on the admissibility of evidence prior to trial, the court’s determination of admissibility is similar to a preliminary ruling on evidence at a pretrial conference, and it controls the subsequent course of action, unless modified at trial to prevent manifest injustice.

Gaston v. State, 227 Ga. App. 666, 669, 490 S.E.2d 198 (1997)(citations and punctuation omitted), quoting, State v. Johnston, 249 Ga. 413, 415, 291 S.E.2d 543 (1982) (emphasis added).

“A motion in limine is the proper vehicle by which to interpose an objection to the admissibility of chemical test results on the basis urged by appellant herein, non-compliance with the provisions of OCGA § 40-6-392(a)(1)(A).” Gaston v. State, 227 Ga. App. 666, 669, 490 S.E.2d 198 (1997).

“Any challenge to the procedures used in reading [the defendant] his statutory implied consent warning, OCGA § 40-5-67.1(b)(2), and the proper working of the Intoxilyzer 5000 machine would have been appropriately raised by a motion in limine, which was not done here.” Goddard v. State, 244 Ga. App. 730, 731, 536 S.E.2d 160 (2000).

“Those portions of [the defendant’s] motion to suppress alleging non-compliance with Code Ann. § 68A-902.1 or regulations of the Department of Public Safety do not involve ‘constitutional guarantees against unreasonable search and seizure.’ Thus, a motion to suppress is not a proper procedural device to deal with such allegations. That does not mean, however, that such allegations may not be considered prior to trial.” State v. Johnston, 249 Ga. 413, 414, 291 S.E.2d 543 (1982), quoting, Hawkins v. State, 117 Ga. App. 70, 159 S.E.2d 440 (1967).

Dismissal of the Charges

Other than demurrers, a motion to suppress remains the only tool available to Georgia criminal defendants to attack the ability of the state to proceed to trial. Unless otherwise agreed to by the parties, in Georgia, the criminal defendant cannot avail himself of what is known as a “motion for summary judgment.” Ewell v. State, 245 Ga. App. 610, 538 S.E.2d 523 (2000); Schuman v. State, 264 Ga. 526, 448 S.E.2d 694 (1994); Jackson v. State, 208 Ga. App. 391, 392, 430 S.E.2d 781 (1993). However, a motion to suppress provides us with the ability to force the state to produce a threshhold level of evidence prior to trial.

[1] While it is outside of the scope of this paper, motions in limine may also be used to ensure that items of questionable admissibility are ruled on prior to trial. If you have prejudicial or character evidence which you fear the court may refuse to admit during the course of trial, consider addressing the issue at a pre-trial hearing.

[2] Larry S. Pozner and Roger J. Dodd, Cross Examination: Science and Techniques, § 2.20 (2nd Ed.).

[3] Id., at § 2.44.

[4] See, State v. Palmaka, 266 Ga. App. 595, 596, 597 S.E.2d 630 (2004)(“Any deviation from the operator’s manual goes to the weight to be given the test results and not to their admissibility.”).

[5] See, Bruce Kapsack, Innovative DUI Trial Skills, § 3.22.