Pretrial Motions

Modern television crime dramas often depict scenes where officers attempting to enter a person’s home to search for evidence are met with a defensive “Get a warrant!” from the suspected criminal. But what happens when evidence is secured by overzealous or impatient officers who search prior to getting a warrant or whose search procedures violate your constitutional rights? That evidence shouldn’t be brought into trial against you, should it? With a motion for suppression of evidence, you may have a chance of removing that evidence from the courtroom.

What Evidence Can be Removed?

Evidence that was obtained unreasonably without a warrant, or evidence that was obtained with a warrant that does not adhere to California Penal Code 1538.5 can be stricken from your case. Specifically, evidence can be removed if:

• The search or seizure done without a warrant was unreasonable
• The search or seizure done with a warrant was insufficient on its face, meaning, at face value the warrant did not constitute obtaining the evidence that the officers had obtained
• The property or evidence seized was outside the bounds of what was described in the warrant
• The search conducted with the warrant violated federal or state constitutional standards
• Any other federal or state constitutional standard was violated

What Happens Next?

Once we can deem that the evidence obtained met one or more of the above categories, your lawyer can then file for a motion to suppress the evidence through a document delivered to the court. The motion will be discussed at the initial hearing, or at a separate hearing called a “suppression hearing.” When the motion to suppress is being discussed, the burden of proof depends on the presence of a search warrant. If the search was performed with a warrant, then the burden of proof rests on the defense to prove that the search was illegal. If the search was conducted without a warrant, then the prosecutor must prove that the search and seizure were reasonable actions taken by the officer.

If your motion is granted, the judge may choose to either suppress all or some of the evidence, depending on the circumstances and the case. Depending on how much evidence is removed, the prosecutor may choose to dismiss your charges, or try to negotiate a plea bargain. If the prosecutor wants to move forward, he or she may want to appeal the motion for suppression, dismiss the current charges and find new charges, move forward to trial under grand jury, or continue with the current charges without the evidence. If the motion is denied, your options are to try to plead guilty and accept your charges, strike a deal or plea bargain for a reduced offense, or move forward to a full trial. You also have thirty days to file an appeal of the ruling.

There are certain circumstances in which the suppressed evidence may turn up in court. Suppressed evidence is admissible at parole revocation hearings, grand jury proceedings, and civil deportation hearings.

In criminal cases, your drunk driving attorney will collect evidence to support your case. Additionally, your attorney will review the evidence the prosecutor has against you. In California, the period of time for collecting facts, witness statements, and checking to see what your opposition will bring against you is called discovery. This process has both formal and informal aspects. Overall, discovery can be complex and time consuming as it often assumes knowledge of courtroom and legal strategies, as well as evidence rules.

Informal Discovery

Informal discovery is all about gathering information that can be obtained on your own by working with people and agencies. Put simply, informal discovery is all about investigation. Sometimes, this investigation can be conducted before the case even begins. It includes things like:

• obtaining reports and documents from agencies like the police, doctors, or other professionals
• taking photographs to be presented in court
• interviewing witnesses

Beware that due to evidence rules, not everything obtained through informal discovery may be used in court.

Formal Discovery

Formal discovery involves the legal processes that are to be employed once the case has already begun. These processes are oftentimes written or filed through a court motion. Some of these formal discovery processes include:

• Requests for production of documents: This is a formal request to obtain documents that are relevant to your case. These can include police reports not initially provided, or protected documents that necessitate a court order.
• Requests for Admissions: This is when one party asks the opposition to admit or deny the truthfulness of a statement. These requests and their answers will come up in trial.
• Subpoenas: A subpoena is a written court order that requires the opposition or a third party witness to testify or furnish specific evidence relevant to the case. Such evidence can include books, documents, records, etc.
• Depositions: These are oral questions that must be answered in-person and under oath by the person being deposed. Depositions can come from a party that is active in the case, or a third party outside of the case, such as a medical or other expert. Court reporters will often make written transcripts of depositions, or take videos of depositions.
• Interrogatories: These are written questions that are directed toward the opposing party that the opposition must then answer both in writing and under oath. Interrogatories and their answers will be used at trial.

Either party can object to any particular request from their opposition.

If one side does not agree with the objection and still wants to obtain the information from the request, they are able to file a court motion to have a judge mediate the discovery issues.

There are a number of formal rules surrounding how discovery is to be conducted. While informal discovery conducted by a defendant will suffice for smaller incidents, such as traffic offenses, discovery proceedings for cases involving heavier charges will necessitate the aid of an experienced criminal defense lawyer.

In the past few years, we have seen cases of police misconduct and brutality across the nation. Nowadays, it seems all too common that police misconduct either goes unpunished, or causes unnecessary pain and suffering. Victims charged with a crime in these instances have a potential defense they can use against unfair, unjust, and unwarranted police activity. This defense is unique to California law and is called a Pitchess motion.

The Pitchess motion is a pre-trial tactic that can be employed when you and your lawyer agree that you have been a victim of police misconduct. Such misconduct includes the use of excessive force or providing false information in order to charge the defendant. In essence, what the motion does is put forward a request for access to the personnel file of the law enforcement officer in question.

How do Police Records Help My Case?

An officer’s personnel file on its own is not necessarily a boon. However, if you believe you have been the victim of police misconduct, searching the officer’s files for reports of similar misconduct occurring in the past can prove a history of dishonest actions from a crooked police officer. Police misconduct can include actions such as:

• Excessive force or violence
• The use of racial profiling
• False or deliberately inaccurate police reports
• Forcing confessions
• Sexual harassment

If one or more of these misconduct factors had any effect on criminal charges brought against you, a Pitchess motion may be a valid route to pursue. You should always have your lawyer do the official filing for a written Pitchess motion to the court. Your attorney will have to include what records and information you are trying to obtain about the officer, as well as documentation that specifies a “good cause” to obtain these records. The judge will make a final determination for the motion and a private hearing will be held to determine what records will be released. It is important to know that there are specific guidelines on what files will be released. They are as follows:

• Information that is over five years past the date of the police misconduct in the defendant’s case will not be disclosed
• The personal conclusions of officers that have investigated citizen complaints about the officer in question will not be disclosed
• Facts that are considered too remote that there would be little or no practical benefit will not be disclosed

The official hearing will not include you, your attorney, or the prosecutor. The only individuals who attend are the officer in question, the judge, and any other people that the officer wants to have present.

Depending on what is released, you may see reduced or dismissed charges. Even if the Pitchess motion does not have any effect on what charges you are facing, it may help you pursue other avenues of defense, such as a motion to suppress evidence. If you even have the slightest feeling that the police may have mistreated you or your case during the arrest or investigation, contact one of the top DUI lawyers in LA, CA and see what your options are for a Pitchess motion.

When facing drug or drug-related charges, the prosecution will use any method possible to net a conviction. One particularly common method is a sample to test for potential presence of drugs in a defendant’s system. When facing drug or alcohol related charges, it is imperative to know what these tests consist of, as well as any ways that they may be inaccurate or generate a false positive.

Saliva

A saliva test is a common method for testing for the presence of marijuana that is non-invasive and quick. The test, however, is not designed to detect habitual marijuana use. The test itself can really only detect marijuana use from about four to six hours prior to the test. It may be used to see if an employee has smoked on the job, or by an officer to determine whether an individual is driving under the influence of drugs. There is a low threshold for this method, meaning that even trace amounts could potentially lead to a positive result.

Urine

Urine tests are common for employment screenings, but can also be used by law enforcement officials investigating drug-related charges. These tests involve a small sample of a person’s urine and can be used to screen for any number of substances. Most urine samples are able to test back as far as three weeks. Due to the wide variety of drugs that can be detected, and the length of time the test is able to reach back, the urine test is generally considered a reliable source for determining drug use for employment screenings, probation, and criminal charges. Therefore, before taking a test you should make a note of what medications you take on a prescribed basis to avoid an error in results that can be used against you.

Blood

A blood test is a regularly-used practice for DUI cases. The device used to test a person’s breath provides a read on what their BAC level, or blood alcohol content, is at the time. A breathalyzer is a sensitive device that can be triggered by something as harmless as mouthwash, but in the event of DUI charges, alcohol content above the legal limit from one of these tests will be used against you. It is important to form your defense around whether the testing equipment was in working order. Also common in DUI cases is a blood sample taken directly from you to be tested at the station. These blood tests have a large margin of error due to storage issues while the samples await full testing. If you face a blood sample test in court, it is important to question what errors could impact the results.