http://www.duiblog.com/2006/07/06/the-suspects-speech-was-slurred/ Bad Drunk Driving Laws, False Evidence and a Fading Constitution Sat, 18 May 2013 05:46:50 +0000 hourly 1 http://wordpress.org/?v=3.4.2 http://www.duiblog.com/2006/07/06/the-suspects-speech-was-slurred/comment-page-1/#comment-69 Lawrence Taylor Tue, 11 Jul 2006 22:20:07 +0000 http://duiblog.level2hosting.com/?p=369#comment-69 <a></a>This motion may be more appropriate to a 402 motion in limine than a 1538.5 motion to suppress, Nelson, but whatever works.... The California Evidence Code provides no grounds for admissibility called "It's always been done that way".  The simple fact is that the proponent of the evidence -- the prosecutor -- has the burden of laying a foundation: You do not have the burden of showing there is no foundation. Having said the obvious, you and I both know the political/judicial realities of life in the California trenches.  You've probably got an ex-D.A. on the bench, or one who wants MADD's approval come election time, and so you get rulings like "It's always been done this way, counselor" or the fallback cliche "That goes to the weight, not the admissibility".  The only remedy is to make sure the record is clear, and hope the appellate justices understand the issues and apply the law.  And yes, I well know how frustrating it all is.... This motion may be more appropriate to a 402 motion in limine than a 1538.5 motion to suppress, Nelson, but whatever works….
The California Evidence Code provides no grounds for admissibility called “It’s always been done that way”.  The simple fact is that the proponent of the evidence — the prosecutor — has the burden of laying a foundation: You do not have the burden of showing there is no foundation.
Having said the obvious, you and I both know the political/judicial realities of life in the California trenches.  You’ve probably got an ex-D.A. on the bench, or one who wants MADD’s approval come election time, and so you get rulings like “It’s always been done this way, counselor” or the fallback cliche “That goes to the weight, not the admissibility”.  The only remedy is to make sure the record is clear, and hope the appellate justices understand the issues and apply the law.  And yes, I well know how frustrating it all is….

]]> http://www.duiblog.com/2006/07/06/the-suspects-speech-was-slurred/comment-page-1/#comment-68 Nelson McElmurry Sat, 08 Jul 2006 18:29:26 +0000 http://duiblog.level2hosting.com/?p=369#comment-68 <a></a>It makes me sick to see the routine cookie cutter police reports and DS-367 form where everyone demonstrates slurred speech, red, watery eyes, etc.  Question:  Has anyone had any luck challenging the FSTs in a 1538.5?  I just lost one where my client supposedly failed walk-turn, HGN, and one leg stand.  No PAS was given, and he blew .12 on the Alcotest. The court wouldn't let me make foundational challenges as to the methodology and reliability of the FSTs since "they've been used for years."  I still pointed out flaws in the cops administration of the FSTs, his knowledge of them, and even his recording of the results.  Yet, I still lost.  (Although I was able to knock out two of the three factors which he relied on to make the stop in the first place, a Pyrrhic victory of sorts.)  How can a sucessful FST challenge at a 1538.5 be mounted? It makes me sick to see the routine cookie cutter police reports and DS-367 form where everyone demonstrates slurred speech, red, watery eyes, etc.  Question:  Has anyone had any luck challenging the FSTs in a 1538.5?  I just lost one where my client supposedly failed walk-turn, HGN, and one leg stand.  No PAS was given, and he blew .12 on the Alcotest. The court wouldn’t let me make foundational challenges as to the methodology and reliability of the FSTs since “they’ve been used for years.”  I still pointed out flaws in the cops administration of the FSTs, his knowledge of them, and even his recording of the results.  Yet, I still lost.  (Although I was able to knock out two of the three factors which he relied on to make the stop in the first place, a Pyrrhic victory of sorts.)  How can a sucessful FST challenge at a 1538.5 be mounted?

]]>