WHAT TO DO WHEN THE POLICE BREAK THE LAW

Motions are powerful weapons against illegal police tactics in a DUI case. A motion is a request by a defendant to the court. There are various motions that may be filed by a defense attorney, and the motion most often filed by a DUI attorney in San Diego and elsewhere is a motion to suppress evidence.

When a defendant or his attorney files a motion to suppress evidence he is asking the judge to rule that evidence is inadmissible because it has been obtained illegally. If evidence is inadmissible then it cannot come in at a Defendant's trial. If incriminating evidence is kept out of a defendant's trial, then the prosecution's case may be seriously weakened or destroyed.

There are a number of reasons why evidence may be illegally obtained and therefore inadmissible. A good DUI lawyer in San Diego will review your case to determine whether the possible reasons for evidence to be inadmissible are present in your case. For example, if a police officer arrests a defendant but does not read the defendant his Miranda rights then any statements made by the defendant after his arrest and before the reading of his Miranda rights may be inadmissible.

In DUI criminal cases in San Diego the most damaging pieces of evidence are usually the results of breath or blood tests as well as a defendant's performance on field sobriety tests. So, excluding a defendant's post-arrest statements isn't usually going to seriously weaken the prosecution's case.

Another reason why excluding post-arrest statements may not put a big dent in the prosecutions case is that appellate courts have ruled that the initial contact between a police officer and a driver subjected to a DUI stop is not an arrest. Defendants generally make their most damaging statements early on in their contact with the police; for example, telling an officer how much they had to drink.

Because defendant's generally make the most damaging statements early on, during the 'investigation' rather than the 'arrest' phase of the DUI stop, and because the most damaging evidence is usually the blood or breath tests, not the defendants' statements, excluding evidence based on a failure to advise a defendant of his Miranda rights is rarely the key to winning a DUI case in San Diego.

But there is still good reason to file a motion to suppress in the right case; a motion to suppress in a DUI case can be a useful tool when a defendant argues that he was stopped or arrested illegally, as opposed to arguing that he made post-arrest statements without a Miranda warning. For example, if a police officer observes that an eventual defendant's car wheels touch a lane line and observes no other irregularities in the defendant's driving, then the police officer might not have a legal basis to stop the defendant. If the officer nonetheless stops the defendant, and the officer's investigation leads the officer to suspect that the defendant is driving under the influence, then the defendant may argue to the judge that the initial stop was illegal.

If the defendant or his attorney can persuade the judge that the initial stop was illegal, then the judge might rule that all evidence obtained after the illegal stop - i.e., the result of a Blood Test, Breath Test or a Field Sobriety Test - is inadmissible in trial.

A motion to suppress can also be valuable because it offers an opportunity to a DUI lawyer to cross-examine a police officer in court in order to find out what the officer's testimony will be at trial.

Another motion that may be filed is called a Pitchess motion. If a defendant wins a Pitchess motion then the judge will order the Police Department to give the defendant or his lawyer the contact information for other citizens who have filed complaints against the defendant's arresting officers for dishonesty or use of excessive force. As discussed above, the case may arise where an officer writes in his police report that a defendant swerved across a lane line, and the defendant knows that his wheels just touched the lane line. In that kind of case it might be useful for a defendant to file a Pitchess motion in order to locate witnesses who might call the police officer's credibility into question by testifying that the police officer has been dishonest in other cases.

To cause the court to hear a motion to suppress, a DUI attorney prepares a legal document that includes argument to persuade the judge to decide the motion in the defendant's favor, and makes four copies of the document. The attorney goes to the San Diego courthouse to provide the documents to a court clerk, and asks the clerk to set a date when the motion may be heard in court, in front of a judge. The clerk keeps two copies for the court, and returns two copies to the attorney with the court's official stamp. The attorney then takes the two stamped copies to the office of the prosecutor (the San Diego City Attorney or the San Diego District Attorney). The prosecutor's office keeps one copy, and provides the attorney with a stamped copy. The attorney then has a copy of the motion with confirmation from the court that the motion has been filed and a date has been set, as well as confirmation from the prosecutor's office that he has provided the prosecutor with a copy of the motion.

For more information about DUI, visit DrunkDrivingSD.com - San Diego DUI Lawyer

Five Things I Love About Good Lawyers

I recently read about a case where someone decided that they lost their case because their lawyer didn't do a good enough job. I laughed at first, but then I read further...they successfully tried the case and they won. I was absolutely floored! After doing some more research on Google, I looked for "criminal defense San Diego" and added the word "bad" to either the beginning or the end of the phrase. Viola! I found several other stories. It doesn't matter the situation, having a successful attorney on your side who can win your case and have the result be to your advantage is so vital.

For instance, in one case, a woman who was abused during her marriage tried to ban the husband/father from having custody and asked for a fair amount of alimony and child support. The added complication is that she had suffered a serious back injury and had been unable to work for years but hadn't been on medical disability because her husband had made enough to comfortably support them. After taking representation that she felt was adequate (her lawyer was female and specialized in divorces...she stated there was no other reason for selecting that lawyer), her case was bungled. She not only had to split custody with her ex-husband, she was denied alimony because she was declared "fit to work" and ordered to work. If she had done the necessary research about her attorney she would have had a very different result.

These types of situations happen more than you may realize where a person's lawyer does more harm than good when representing their clients in court. I have found that if you spend a little bit of time and energy to find the right (i.e., "good") attorney, your case's outcome will be very different. I have narrowed my list to five attributes I look for in a good attorney.

I live in San Diego, so I would begin by looking online and searching for a lawyer by "criminal law attorney San Diego". This narrows the search results. Add words before or after the phrase such as "divorce" "DUI", or "fraud" to get more specific. I first look for an attorney who has a Web site. This usually means that they want to get business because they are confident about how they perform in court. Second, I look for someone who is an excellent communicator. When you spoke with them, did they ask good questions? Did they tell you what your case looks like and the chance of success based on your information?

Next, I look for an attorney who comes recommended by others. Have you been able to read about or speak to former clients who are happy with this lawyer? Another excellent indicator of a good attorney is their knowledge of the law. It may seem apparent that they know what they're doing. But do they know the loopholes and avoid them? Do they know the statute of limitations for your type of situation? Finally, a counselor you can trust is honest. Warning signs include mentioning ways they have deceived others in past cases and gotten "winning results" and things of this nature.

Find a lawyer who has all 5 of these attributes and you'll be well on your way to winning your case when you have your day in court!