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					What to Suppress and How to Do it:
What Motions should you be filing?




                Marny Heit
        The Law Office of Marny Heit
          1827 Powers Ferry Road
            Building 6, Suite 303
          Atlanta, Georgia 30339
              O: 770-956-0090
              F: 770-956-0098
              C: 404-313-4923
            marny@heitlaw.com
                  HOW DO I KNOW WHAT MOTIONS TO FILE?


       More often than not, I have a client walk into my office and say, “I blew over the
legal limit, so I have to plead guilty, right?” My response is almost always the same:
“Just because there is a chemical test result above the legal limit doesn’t mean there is
an admissible chemical test result above the legal limit.” In most cases, the key to
successfully defending a DUI case is the Motion to Suppress. The average DUI case is
ripe with evidentiary issues that can be contested. The more often you read police
reports in DUI cases, the easier it becomes to mentally break the report up into the
various motions that can and should be filed. In virtually every DUI case I handle, there
are at least 4 or 5 different motions that I always file, and then a few case-specific or
fact-specific motions that I will need to decide whether to file.


The main questions to ask yourself when reading a police report will give you an idea of
what areas are ripe for Motions to Suppress:
   1. What is the reason the officer gives for the traffic stop?
   2. What was the officer’s probable cause to make the arrest?
   3. Did the officer administer the HGN evaluation correctly?
   4. Was my client in custody at the time of the Field Sobriety Tests?
   5. Did my client make any damning statements? When?
   6. Was implied consent read? When? Where? How?
   7. How did my client respond to implied consent?
   8. If a chemical test was done, what was the result?
          a. Who administered the test?
          b. When was the test administered
          c. Which machine was used?
          d. Did my client ask any questions/make any requests when he saw the
              results?
   9. If no test was done, why not?
          a. Did my client refuse?
          b. Was he not given an opportunity for testing?
          c. Did he request a different type of test
       In virtually every case, you should ask yourself these questions, and let them
shape the packet of motions to file and argue. Of course, not every enumerated area will
require the filing or arguing of a Motion to Suppress. And, in my opinion, you can start
to lose credibility with your judge if you find yourself arguing the officer had no
articulable suspicion to stop your client when the undisputable facts show your client
had a broken tag light. It is okay to concede certain evidence. However, it is the rare
case that is not helped from taking advantage of the opportunity to argue and obtain
testimonial evidence about details that may not be in your police report or arrest video.
In fact, I cannot count the number of times I walked into a hearing on Motions to
Suppress only to learn of a conversation that took place that I did not know had
happened, or something an officer mistakenly did that resulted in a much better
outcome for my client than I anticipated.


            ONCE I FIGURE OUT WHAT TO FILE, HOW DO I WIN?


       The reality is, the filing of Motions to Suppress is the easy part. The difficult task
is getting these motions granted. It is not enough to simply know what questions need
to be asked in deciding what Motions to Suppress to file; you have to know why the
answers to those questions matter. The best and biggest tool in your arsenal for winning
a Motion to Suppress hearing sounds obvious, but get somewhat ignored: KNOW THE
LAW. In the world of DUI defense, the case law changes rapidly; new opinions are
handed down from our appellate courts constantly, some overturning prior cases, some
tweaking them just enough to make your argument more difficult, and some giving you
the winning argument for your case. And you cannot expect the judge to simply hear the
testimony in your hearing and know whether the evidence has to be suppressed. If you
are not up-to-date on the law, do not assume the judge is either. While it may sound
daunting to educate yourself if you are starting from scratch, once you catch yourself up
on the current state of the law, updating yourself can be much less time consuming. In
whatever online legal research tool you use, do a monthly search for the DUI cases that
came out just in that last month. Print those cases out and keep them in your bag. That
way, the inevitable next time you are waiting through a long calendar, you have
something to keep you occupied.
        But just as important as the case law: READ THE STATUTES. I cannot tell you
how many times I have read listserver questions or emails where the answer to the
writer’s question is right there in the plain language of the statute. There are just a few
statutes that address DUI: 40-6-391 and 40-6-392, and a few others that address ALS
hearings and license suspensions. If you have not read those statutes, you must. If you
have read them, read them again. Also, you need to read the statutes for every citation
your client received, and every count of the accusation. Many times I have been
surprised to learn that the statute the arresting officer stopped my client for violating
was not actually violated based on the language of the statute. And even more often, I
have learned that the officer claims my client violated a different (and more serious)
statute than the one he actually violated.


                   WHEN CAN I FILE A MOTION TO DISMISS?


        In DUI cases, a written Motion to Dismiss does not come up very often. I have
heard lawyers file them, arguing, “The state does not have sufficient evidence to prove
my client’s guilt, so the case should be dismissed.” This motion is a waste of paper. Do
not file it.
        However, there are times where a Motion to Dismiss is the appropriate weapon.
For example, where there is a due process violation that cannot be rectified (like the
destruction of evidence), the appropriate remedy may be dismissal. Where a speedy
trial demand has been filed and ignored, a Motion to Dismiss (or Motion for Discharge
and Acquittal) is an appropriate motion. If the case was filed outside the Statute of
Limitations (2 years), you can move the court to dismiss your case.
        As you can see, a Motion to Dismiss is certainly not the norm. Before you
automatically file one, make sure you are not simply arguing that the state cannot meet
its burden at a hypothetical trial.
                  IN THE XXXXXXXX COUNTY STATE COURT

                                   STATE OF GEORGIA

STATE OF GEORGIA,                          *
                                           *
v.                                         * ACCUSATION NO.: 123456789
                                           *
XXXXXXXXXXXXXXX,                           *
    Defendant.                             *


                MOTION IN LIMINE TO EXCLUDE ALL EVIDENCE
             GATHERED AS A RESULT OF AN UNLAWFUL SEIZURE

       The Defendant moves the Court to suppress from use as evidence any

observations of the Defendant by any police officer on or about December 31, 2010,

including Officer Friendly or any other witnesses, which took place after the initial

detention of the Defendant, for and upon the following reasons and grounds:

       (1)    At the time of Defendant’s initial detention, sufficient facts did not exist to

support an articulable suspicion by the officer(s) that Defendant had committed any

traffic violations, that he was under the influence of alcohol or drugs, or that any other

criminal activity was underfoot.

       (2)    This detention, including Defendant’s arrest, was an unlawful warrantless

seizure, not supported by probable cause or articulable suspicion, violating Defendant's

rights under the Fourth Amendment to the Constitution of the United States, and Article

I, Section I, Paragraph XIII of the Constitution of the State of Georgia of 1982.

       (3)    The initial detention also violated Article I, Section I, Paragraph XIII of the

Constitution of the State of Georgia of 1982.

       WHEREFORE, Defendant moves the Court to exclude the evidence illegally

obtained as set forth above, and to direct the prosecutor and the state's witnesses to not
use, mention or otherwise refer to such evidence at the trial or other proceeding in this

case.




                                                 __________________________
                                                 MARNY J. HEIT, Bar # 343858
                                                 Counsel for Defendant


LAW OFFICE OF MARNY HEIT
1827 POWERS FERRY ROAD
BUILDING 6, SUITE 303
Atlanta, Georgia 30339
770-956-0090
                  IN THE XXXXXXXX COUNTY STATE COURT

                                STATE OF GEORGIA

STATE OF GEORGIA,                        *
                                         *
v.                                       * ACCUSATION NO.: 123456789
                                         *
XXXXXXXXXXXXXXX,                         *
    Defendant.                           *



             MOTION IN LIMINE TO EXCLUDE BREATH TEST RESULTS
                       ON STATUTORY GROUNDS

      COMES NOW Defendant in the above-styled case and moves the Court in limine

to exclude from evidence the results of the breath test that was administered to

Defendant in connection with the charges of driving under the influence of alcohol

contained in the above styled accusation, for and upon the following grounds and

reasons:

      (1)    The state cannot show that the request for Defendant’s breath test was

preceded by a valid DUI arrest supported by probable cause.

      (2)    The state cannot show that Defendant was properly and timely advised of

implied consent rights as required under OCGA § 40-6-392(a)(4), see Perano v. State,

250 Ga. 704 (1984).

      (3)    The state cannot show that Defendant was given a reasonable opportunity

to have an independent chemical test performed by a person of Defendant’s own

choosing, as required by OCGA § 40-6-392(a)(3).
       (4)    The state cannot show that Defendant’s breath test was performed

according to the methods approved by the Division of Forensic Sciences of the Georgia

Bureau of Investigation (“DFS”) as required by OCGA § 40-6-392(a)(1)(A).

       (5)    The state cannot show that Defendant’s breath test was performed on a

machine operating with all its electronic and operating components attached and in

good working order by an individual possessing a valid permit issued by the DFS for this

purpose as required by OCGA § 40-6-392(a)(1)(A).

       (6)    The state cannot show that Defendant’s breath test was administered as

soon as possible as required by OCGA § 40-5-67.1(a).

       (7)    The state cannot show that the officer properly designated a chemical test,

nor that Defendant actually consented to submit to the state-administered chemical test.

       (8)    The State cannot show the operator of the Intoxilyzer 5000 followed

proper procedure in administering the state-administered chemical test on Defendant.

       WHEREFORE, Defendant moves the Court to suppress the results of any breath

test obtained in connection with the charges in the above styled accusation from use as

evidence in the trial of the above styled case or any other legal proceeding.



                                                 MARNY J. HEIT, Bar # 343858
                                                 Counsel for Defendant

LAW OFFICE OF MARNY HEIT
1827 POWERS FERRY ROAD
BUILDING 6, SUITE 303
Atlanta, Georgia 30339
770-956-0090
              IN THE XXXXXXXXXXXX COUNTY STATE COURT

                                STATE OF GEORGIA

STATE OF GEORGIA,                        *
                                         *
                                         * ACCUSATION NO.: 123456789
                                              *
XXXXXXXXXXXXX,                           *
    Defendant.                           *


        MOTION IN LIMINE TO EXCLUDE RESULTS OF “HGN” TEST

Defendant respectfully moves the Court to exclude any evidence of the administration or

results of any HGN test(s) given to Defendant, on the following grounds:

      (1) The HGN test is a scientific procedure whose validity relies entirely upon the

officer’s strict adherence to proper procedures and objective interpretation; and the

officer in this case failed to administer the test in the manner in which he was trained,

and therefore the administration of the “test” was invalid, leaving the results

inadmissible at trial. See State v. Pastorini, 222 Ga.App. 316 (1996); See also Hawkins v.

State 223 Ga.App. 34 (1997); State v. Tousley, 271 Ga.App. 874 (2005).

      (2) Without a search warrant, and without probable cause, the arresting officer

required Defendant to perform a series of acts, including the HGN test, enabling the

officer to obtain evidence which was not detectible though simple observation, and in

which Defendant has a reasonable expectation of privacy, in violation of the Fourth

Amendment, as well as Article I, Section I, Paragraph XIII, of the Georgia Constitution.


                                         _______________________________
                                         MARNY J. HEIT, Bar # 343858
                                         Counsel for Defendant
LAW OFFICE OF MARNY HEIT
1827 POWERS FERRY ROAD
BUILDING 6, SUITE 303
Atlanta, Georgia 30339
770-956-0090
                   IN THE XXXXXXXX COUNTY STATE COURT

                                  STATE OF GEORGIA

STATE OF GEORGIA,                          *
                                           *
v.                                         * ACCUSATION NO.: 123456789
                                           *
XXXXXXXXXXXXXXX,                           *
    Defendant.                             *

              MOTION IN LIMINE TO EXCLUDE DEFENDANT'S
             ALLEGED INCRIMINATORY STATEMENTS AND ACTS

       COMES NOW Defendant and moves the Court to and exclude from evidence any

and all statements, acts or responses allegedly made by Defendant, which statements,

acts or responses are incriminating as to guilt or impeachment, including Defendant's

acts in response to instructions from the arresting officer to perform "field sobriety

tests," and in support thereof, shows the following:

(1)    At the time of the aforesaid statements, acts, or responses Defendant was in

“custody” and was not advised of the rights against self-incrimination under the Georgia

Constitution.

(2)    Without a search warrant, the arresting officer required Defendant to perform a

series of unusual maneuvers and acts, enabling the officer to obtain evidence which was

not detectible though simple observation, and in which Defendant has a reasonable

expectation of privacy, all in violation of Article I, Section I, Paragraph XIII, of the

Georgia Constitution.

       WHEREFORE, Defendant prays that the Court exclude from the trial of this case

the evidence obtained illegally as set forth above.




                                           MARNY J. HEIT, Bar # 343858
                                           Counsel for Defendant
                 IN THE XXXXXXXX COUNTY STATE COURT

                                STATE OF GEORGIA

STATE OF GEORGIA,                        *
                                         *
v.                                       * ACCUSATION NO.: 123456789
                                         *
XXXXXXXXXXXXXXX,                         *
    Defendant.                           *

            MOTION TO SUPPRESS ALLEGED CHEMICAL REFUSAL

      COMES NOW Defendant in the above-styled case and moves the Court                to

exclude from evidence the alleged refusal to take a chemical test in connection with the

charges of driving under the influence of alcohol contained in the above styled

accusation, for and upon the following grounds and reasons:

      (1)    The state cannot show that the request for Defendant’s chemical test was

preceded by a valid DUI arrest supported by probable cause.

      (2)    The state cannot show that Defendant was properly and timely advised of

implied consent rights as required under OCGA § 40-6-392(a)(4), see Perano v. State,

250 Ga. 704 (1984); Vandiver v. State, 207 Ga.App. 836 (1993).

      (3)    The state cannot show that the conduct observed by the police officer

amounted to a refusal, and that Defendant was given an ample opportunity to

adequately comply with the officer’s request.

      (4)    The refusal was justified because the Division of Forensic Sciences has

failed to “approve . . . requirements for properly operating and maintaining any testing

instruments” as mandated by O.C.G.A. § 40-6-392(a)(1)(A), as amended.

      (5)    The refusal was justified because the machine on which Defendant was to

be tested was not being operated with all its electronic and operating components as
prescribed by its manufacturer properly attached and in good working order.

          (6)   The state cannot show that Defendant was actually placed under arrest for

DUI at the time a chemical test was requested.

          (7)   Defendant rescinded his initial alleged refusal, however the law

                enforcement

officer would not allow him to submit to the state-administered test.

          (8)   Defendant was given misinformation regarding the consequences of

submitting to testing and/or refusing testing.

          WHEREFORE, Defendant moves the Court to suppress the results of any

evidence of Defendant’s alleged refusal to submit to a chemical test in connection with

the charges in the above styled accusation and to order the prosecutor and all witnesses

in this case to refrain from alluding to or mentioning the said refusal, or request for such

a test.



                                                 __________________________
                                                 MARNY J. HEIT, Bar # 343858
                                                 Counsel for Defendant

LAW OFFICE OF MARNY HEIT
1827 POWERS FERRY ROAD
BUILDING 6, SUITE 303
Atlanta, Georgia 30339
770-956-0090

				
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