Stephen F. Wagner
T.S.R.P. (Coastal Region)
wagners@co.monterey.ca.us
831-647-7975
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!
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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
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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!
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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 of
consequence 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
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23152(a) and CALCRIM 2110
To prove that the defendant is guilty of
this crime, the People must prove that:
1. The defendant drove a vehicle;
AND
2. 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
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23152(b) and CALCRIM 2111
To prove that the defendant is guilty of
this crime, the People must prove that:
1. 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]
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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.”
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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”
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“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
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Case law on Probative Value
vs.
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
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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.”
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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!
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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
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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.”
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Offense vs. Defense
PAS 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?
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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
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PAS FOR PRESENCE AND RESULT
Cal. Const. Art.1, Section 28, subd. (d)
Evid. Code Section 351
1. It’s the test given closest to the time of
driving and “impaired driving” is the
offense
2. The PAS blow registered 0.09 and the
next test (blood or breath) registered
0.08
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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!
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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
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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
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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
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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)
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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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END
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