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DUI-motion to suppress on constitutionality of stop

Henderson, NV |

Hello, I was arrested for a DUI on 11/11 and my case just re-opened a few weeks ago following a no charges filed disposition pending blood results. I have not been given a court date as of yet.

I was pulled over for making an illegal U-turn. There was not a "No U-turn" sign posted, however I was in a thru-traffic lane while making the turn. Upon the traffic stop, I was arrested for DUI after the field sobriety tests were administered. I did not submit to a breath test.

My charges are only for the violation code of the DUI offense. There is no charge on record for making an illegal U-turn.

Can I file a motion to suppress due to the constitutiononality of the stop since there was no charge for the initial probable cause?

Attorney Answers 5

Posted

The lack of citation alone may not be enough, but go over the entire stop, field tests, nature of the blood draw, etc. in detail with your attorney. There may be other issues or omissions that will help.

We do not have a client/attorney relationship until you make an appointment, we discuss your case face to face, I accept a retainer, and we explictly agree to enter into representation.

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Asker

Posted

Doesn't that evidence adhere to the fruits of the poisonous tree? Since there was no citation administered for the initial probable cause. Even if the cause was included in the arrest report, there was still no citation given. Wouldn't this suppress any subsequent evidence obtained and have no requisite reasonable suspicion to justify the stop because of the non-issuance of the citation?

Barry Franklin Poulson

Barry Franklin Poulson

Posted

The lack of a citation is not enough. The cop will just say, "He was already in enough trouble for DUI, and I took pity on him." I am NOT saying the stops, tests, etc, have no other flaw, but that needs to be reviewed by an attorney.

Asker

Posted

If it can be proven that the illegal u-turn itself is not valid, then there would be no probable cause for any subsequent charges under the fourth amendment correct? Thank you for the feedback

Barry Franklin Poulson

Barry Franklin Poulson

Posted

Yes, mistake of law works, mistake of fact leaves the officer with some latitude.

Asker

Posted

Ok thanks this helps

Barry Franklin Poulson

Barry Franklin Poulson

Posted

The caution you see me displaying is in part that if the U-turn defense does not work, it will be harder to get relief on some other flaw that may be lurking in the stop, tests, etc. That's why I think the entire event should be gone over by you and your attorney. Then, you attack on all fronts.

Asker

Posted

I recognize the significance. I will not have as strong of a case if I put all my eggs in one basket.

Posted

The fact that you were not cited for the infraction alone is not going to be enough to get the case dismissed. Your attorney needs to review all of the facts of the case with you and its possible that there are things that will allow for the dismissal of the case or suppression of evidence that will make prosecution difficult if not impossible.

And yes, I say that you need to discuss this with your attorney because there is no way that you can do this on your own. You need an attorney with you, advising you about your options, and directing your defense in an effective way.

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Posted

You can file a motion for anything. The real question is whether the motion will win. Judges alone decide motions. Judges alone decide the credibility of witnesses who give evidence at a pretrial hearing. Normally, but not always, the judge finds the police officer more credible than the person being charged.

The fact that the minor traffic violation was not one of the charges is not the same as the violation not happening. If the officer claims that it happened, and the judge believes him, a traffic violation witnessed by an officer is enough to pull over the car. However, there are limits on what the police can do after a legitimate traffic stop. The main US Supreme Court case on the subject is called Knowles v Iowa.

You might want to try to get the police car videos, if any, to help support your claims of illegal police activity.

Not submitting to the breath test is often a smart move for someone about to be charged with DUI. This will make it much harder for the prosecutor to establish that you were under the influence.

You should hire an experienced criminal defense attorney familiar with local conditions in your area, and do it right away.

Contact me at 248-399-6930 for a free consultation. You and I do not have an attorney-client relationship formed by our communications on this website. Advice given by me on this website is general advice based on partial information. You should not rely on any advice given without first hiring a lawyer in the area where the case is pending, and providing that lawyer with full information.

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Posted

This answer is based upon the limited facts presented in your questions. A fourth amendment violation is addressed in any criminal case by what is known as a motion to suppress the stop and the resulting evidence obtained by the stop in what is referred to as the fruit of the poisonous tree. You should consult with an attorney so that you can discuss all of the facts and defenses that may be available to you in your case. The fact that the charges have not been filed at the time of you initial arraignment does not mean that the state is not going to proceed with the case. There is currently a backlog on blood cases and once they obtain the chemist report the State will decide, based upon the blood-alcohol reading whether they will pursue the case.

The information shared in this e-mail does not constitute an attorney-client relationship and you should consult with a local attorney in your city where you can share confidential matters and receive a full evaluation of your legal situation.

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Asker

Posted

Thanks for the response. My license was recently revoked about a month ago due to the results of a chemical blood test. The state has re-opened my case, but I have not received a court date for an arraignment. I'm assuming the prosecution is still working on the discovery

Posted

Here's your case's biggest problem. You made a u-turn from the thru lane or straight lane. I am assuming there was a left turn lane where you could of made a u-turn. The DA is going to argue this was erratic driving and constituted reasonable suspicion to stop you. Also there may be a statute in your state which prohibits this action such as unsafe movement or reckless driving, or even improper lane change. So even if the officer didn't write a ticket for u-turn the DA can still try to prove you made a illegal move and the officer could stop you. It's always up to the judge but it may be tough. You need a lawyer to review all the evidence, you may have a defense.

Attorney Gregory Spink is licensed in North Carolina, with a focused practice in Mecklenburg and Gaston Counties. Nothing is intended in this post to serve as legal advice. It is my opinion based on studying the law and passing the Bar Exam and should not be construed as legal advice. You should always contact a local attorney, who is familiar with local rules. Each case must be judged on a case by case basis with all evidence being reviewed by a licensed attorney. Nothing in this post should be construed as creating an attorney and client relationship.

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