Utilizing a Penal Code section 1538, Motion to Suppress, in a DUI Case

Not all criminal cases go to trial. In fact, more often than not, a criminal case will be disposed of prior to a trial. Plea deals are common because they can be beneficial for both the defendant and the People.

But, there are also circumstances when a case can be dismissed prior to a trial. One common motion that can be brought during the pre-trial stages of a case is a Motion to Suppress. Penal Code section 1538 provides the right of an accused to challenge evidence that may have been obtained illegally. Typically if the evidence is suppressed -- like the blood results of a DUI stop -- the case must be dismissed because the evidence is dispositive to the case.

One example of when a Motion to Suppress could be successful is when an officer stops an accused for a traffic stop that was unlawful. An officer cannot stop an individual without sufficient probable cause, a legal standard provided by the Fourth Amendment. Thus, if an officer reports that he stopped an accused for violating the Vehicle Code, but there was no Vehicle Code violation, the accused may be able to prevail at a P.C. 1538 hearing.

A criminal defense attorney has the responsibility to perform an adequate investigation. Evidence obtained by an attorney could lead to a decision to file a Motion to Suppress. An investigation can include, but is not limited to: requesting discovery from the prosecution, subpoenaing documents, and looking at possible video surveillance. It is now common for officers to have dashboard cameras, and also cameras on their persons. A video could show that a traffic stop was unlawful.

Some of my clients have asked what a motion consists of. A motion is a request for the court to do something. The party "moves" the court to make an order. A motion is started (usually) by an opening brief. The attorney files a memorandum with points and authorities (cases in support of the motion). Then, the prosecution (again, usually) files an opposition brief, highlighting their position against the motion. This allows the court to familiarize itself with the law and facts of the particular case. After the briefing with physical documents, there is an evidentiary hearing where witnesses testify. The arresting officer most likely will testify as to the facts of the stop or arrest.

A Motion to Suppress is a constitutional protection. It safeguards citizens from police abuses. There are other type of situations, as well, when a P.C. section 1538 may be appropriate. Law enforcement cannot exercise a warrant based on false information. Police cannot execute a warrant outside the constraints of the warrant. Facts should be scrutinized in every criminal case.

In conclusion, a defendant may not need to persuade a jury. There are pre-trial motions that can be potentially made, which could lead to a complete dismissal. It is important to contact an attorney should you be charged with a crime. We welcome your calls and questions. 

I Was Arrested for a DUI; Now What?

A California DUI carries some harsh penalties. Due to the nature of this offense -- it is a clear public safety concern, our state has elected to take a tough stance. But just like any other criminal charge, there are steps that an accused can take that will help him or her in the future.

THE DUI ARREST

When there is sufficient probable cause, law enforcement may investigate and arrest an individual for a DUI. While defense attorneys can later challenge probable cause, it is wise to be respectful when stopped for suspicion of a DUI.

You should be polite and cooperative with law enforcement. It does not mean that you should waive your rights, but it will not help to be combative during the stop. Cursing, yelling, and being rude will not make the officer go away. In fact, it will be mentioned in the police report.

However, you should not volunteer information. Exercise your right to remain silent. Miranda is the landmark case, which protects statements from being admitted into evidence if there has not been an affirmative warning, but Miranda warnings only have to be given after a formal arrest. Thus, law enforcement will always utilize your statements to assess guilt before a warning. Slurred words, admissions of guilt, and memory lapses can lead to problems down the road.

AFTER THE ARREST

If you have been arrested, you should exercise your right to an attorney. There is a reason that there is law school and a bar examination. Further, there is a reason why attorneys charged with a crime will almost always retain another attorney. It is difficult for someone, under an emotional state, to represent themselves.

More than that, retaining an attorney will mean that a professional can immediately begin to protect your rights. Experience and knowledge can go a long way in fighting a DUI charge.

Schedule your DMV suspension hearing, or have your attorney do it immediately. There are two aspects to a DUI, as discussed on my website. There is the actual criminal charge handled by the superior court, and the DMV aspect of the case. They are distinct and separate, although the court can impact what the DMV will do.

Within 10 days of the arrest, a hearing needs to be scheduled. A DMV suspension hearing is a great opportunity to explore probable cause, the officer's testimony, and other evidence that will be used against you. Do not sleep on your privileges with respect to licensing issues.

AFTER YOUR "OR" RELEASE

 Finally, after you have been arrested and released under your own recognizance, exercise your right to information. The web has become a treasure trove of free legal content, including my blog and website. You should become familiar with the criminal, and DMV, process. Further, you should research potential DUI attorneys. An accused should be aware of the charge against him or her, and the consequences of that charge.

Our office invites your questions. We have experience in DUI, and other criminal cases. Remember that time is of the essence, so do not procrastinate if you or a loved one has been charged with a DUI.