DUI/DWI: Litigating a Motion to Suppress

by Jamison Koehler on September 23, 2009

In ruling on a Motion to Suppress in a DUI/DWI case, the court will look at the “totality of the circumstances” affecting the police officer’s decision to stop, arrest, and test the defendant. Defense counsel will therefore challenge the legality of police conduct at every step of the process. The earlier the illegality occurs, the better. Defense counsel will argue that anything that happened subsequent to the illegality should be “suppressed” (prevented from being entered into evidence) as the “tainted fruit” of the “poisonous tree.”

Defense counsel will begin with the car stop itself. How did the defendant come to the police officer’s attention and why did the police officer pull the defendant over to begin with? Police officers love to cite specific sections of the motor vehicle code and they usually do so with great authority. But they are not always entirely familiar with the provisions they cite and they sometimes make mistakes.

Assuming the prosecution can convince the court that the car stop itself was legal, defense counsel will turn next to the circumstances leading up to the police officer’s decision to arrest the defendant. After all, if it was nothing more than a simple traffic violation, the person should have been issued a ticket and sent promptly on his way. There has to be more to prolong the officer’s interaction with the person. Here, the police officer’s testimony will usually focus on the defendant’s behavior:

“The defendant made furtive movements toward the glove compartment/overhead visor as I approached his vehicle.” Perhaps the person anticipated that the officer would ask him for his registration and insurance? Perhaps he keeps these documents in his glove compartment/overhead visor?

“As soon as the defendant rolled down his window, I could smell alcohol on his breath/person.” Pure alcohol has no smell. It is the additives that give alcoholic beverages the different smells we associate with them. Could the officer tell what kind of alcoholic beverage he was smelling?

“The defendant’s eyes were red and glassy.” This was late at night. Did it occur to the officer that the person might simply have been tired? Had the officer ever met the person before? Did he know what the driver’s eyes normally look like? Could the officer say whether his eyes were red and glassy today?

“The driver appeared nervous.” Aren’t people normally nervous when pulled over and challenged by a police officer?

“I could see a beer can/marijuana joint lying on the passenger side floor.” Were there other people in the car? Was there someone in the passenger seat? Where were the passenger’s legs? This was at night? It was dark inside the vehicle?

“The defendant staggered when he got out of the car.” The person was nervous? The officer couldn’t say how long the person had been sitting in the car before he was stopped? The officer didn’t know whether the person suffered from any physical impairments?

“The defendant’s conduct was stuporous.” When was the last time the officer used that word in a non-court setting? What exactly does it mean?

“The defendant’s speech was slurred.” But he was polite? He followed the officer’s instructions? Knowing that the report might end up in court some day, the officer was careful to record every observation? He would have noted it if there was anything else leading him to the conclusion that the suspect was intoxicated?

“The defendant failed a field sobriety test administered at the scene.” What tests were administered? How were they administered? Why did the officer choose one test over another? The person followed instructions in taking the test? The person successfully completed some tasks?

If the defendant made any incriminating statements, defense counsel will interrogate the officer on the circumstances that led to the statements. Was the person in custody at the time these statements were made? Were the statements made in response to police questioning? If so, had the person been advised of his Miranda rights before he made this statement. The court will suppress any un-Mirandized statements the person made while responding to police questioning in custody.

Finally, defense counsel will look at the circumstances pertaining to the administration of any chemical tests, with any discrepancies potentially serving as grounds for suppressing the test results. How much time elapsed between the time the officer observed the suspect driving the car and the time the test was administered? Was the person informed that he could refuse the test and what the consequences of the refusal would be? Did the officer administering the test observe the person hiccup or burp any time before he took the test? How long did he have the defendant under observation? What else was going on at the time? Were there other people in the room? When was the test equipment last serviced or calibrated?

The prosecution and/or defense may occasionally call in an expert witness to testify to, for example, a specific condition that might feign intoxicated in a person or a technical issue related to the administration of the chemical test.

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