DUI motions (procedural and substantive)
A primer on the subtle art of litigating DUI pretrial motions
There are several kinds of pretrial motions that a DUI lawyer may bring before a case gets anywhere near trial. This article gives a general overview of the types of motions, when they are generally brought, and what they accomplish.
Procedural DUI Motions: Procedural pretrial motions cover a wide range of mechanical functions:
- requesting and disclosing of evidence from both the prosecution and the defense
- compel witness interviews or depositions
- to continue
- for change of venue and change of judge
- regarding identification lineups or photo show-ups
- to have blood or urine reexamined by an independent laboratory, and many other issues.
Substantive DUI Motions: Substantive pretrial motions are, as the title implies, motions of legal substance. They include issues such as:
- Miranda violations
- Involuntariness of statements
- To dismiss for lack of probable cause and reasonable suspicion
- Regarding the admissibility of evidence obtained without a search warrant
- Regarding certain evidence issues
- Constitutionality of police actions
- DUI statutes and regulations themselves.
Motions In Limine: In addition to procedural and substantive motions, a DUI attorney may bring preemptive motions regarding the flow of evidence in trial before the trial starts. These referring to "motions in limine."
The time limits and deadlines for the various types of pretrial motions vary from state to state. Please check with your DUI defense lawyer to see what motions may be right in your case. Also, when the need to file the motions.
Make sure you cooperate with your lawyer by providing to them all the information necessary to assess the merits of any substantive or procedural DUI motion the lawyer may be considering.
Let's look at a couple of hypothetical situations to illustrate the skill and thought that must go into any decision to bring pretrial motions in a DUI case:
Hypothetical situation scenario 1
The missing witness: There is a civilian witness mentioned in the police report. They are the only person who can place you behind the wheel of your vehicle. Without their testimony, the judge will have to throw your case out. Your DUI lawyer had attempted to contact them several times, and has not gotten any response. If your jurisdiction allows your lawyer to compel a deposition for an uncooperative or unresponsive witness, the question will be "should your DUI attorney file the motion."
Pros: If you file it, you will know the witnesses availability. If the witness responds, you will know what they will say if called to testify against you. If they don't respond, the judge might preclude his testimony, which means that you win. Sounds pretty good, but...
Cons: What if the witness doesn't want to cooperate, and if left alone would not cooperate with either the state or the defense? If your DUI lawyer compels them to court, they are probably going to show up, and they are probably not going to be happy about it. In this scenario, if your lawyer had not kicked that hornet's nest, it's possible the case becomes dismissed.
This is a tough call, and only your DUI lawyer can make the ultimate decision. It often times helps for the lawyer to get a feel for where the prosecutor stands on the matter. Sometimes, enough extracted information from the prosecutor to make a good decision.
Hypothetical situation scenario 2
The missing information in the police report: However, perhaps there is a gap in the police report. Moreover, let's say there is some missing time unaccounted for based on any of the involved officers' accounts of the event. For this example, say they can't establish the time of driving because the police are called in after an accident. To clarify, they need the time of driving to be able to prove that you had a 0.080 or greater alcohol concentration within two hours of driving.
You have two options:
- Bring a motion to suppress the breath test because they can't show time of driving; or
- Sit on the issue and wait for trial.
The pros and cons of bringing this issue as a substantive motion:
Pros: You could win. The potential of losing could bring the prosecutor to the table with a good plea bargain.
Cons: You tip the prosecutor off to the weakness in their case while they still have time to round up the evidence to fill the gap. Consequently, perhaps it is as easy as pulling up a dispatch report, or as difficult as tracking down a witness to the accident and getting a sworn statement. However, either way if you let well enough alone perhaps the issue survives to the day of trial where your DUI lawyer can use it to get the charge thrown out.
Many Scenarios for Pretrial Motions
Moreover, there are literally hundreds of other scenarios that could come up in your DUI case. To clarify, only your DUI lawyer can advise you on the pros and cons of any particular action in your individual case.