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Misdemeanor DUI trial imminent. Can you give an example of what case deficiencies might allow for 1118.1 motion to be granted?

Valencia, CA |

I have an awesome PD and trust my attorney implicitly. S/he knows what s/he's doing, and my question is not asked in some effort to undermine her/him in the planning or execution of my defense. I'm not a JD, don't wanna be. I am curious, wholly naive, and would value any insight any of you JDs might offer.

In my case there exists no forensic evidence, no physical evidence (no crash, no dash cam), and no witness statements save those by the officer(s). Also, the officer narrative & report were written well after arrest (7+ days) & contain a number of errors (both inclusive & omissive) directly contradicted by other officers' testimony, dispatch logs, laws of physics etc.

Under what circumstances might a 1118.1 in DUI be granted? Can you use a hypothetical DUI case w/more common flaws?

Attorney Answers 6

  1. Best answer

    I love that your post compliments your public defender, many of whom are among the finest defense attorneys in the state. Too often, public defenders are unfairly attacked on this site, and elsewhere. PDs should be thanked and appreciated for their good work.

    This will benefit you. Jurors pick up on even subtle interactions between client and attorney, private or public, and that positive interaction that follows from implicit trust can and will influence a jury's decision-making, and possibly the outcome. I wish you the best of luck in obtaining a just resolution in your case.

    I also agree with Mr. Levin's post.

    Now to your question: Here is a circumstance where an 1118.1 in a DUI was actually granted:

    At a recent trial, the prosecutor failed to establish the elements necessary to prove a high-blood alcohol level enhancement (.20) where multiple hospital blood draws occurred substantially after an accident. The closest temporal blood test was higher than .20, but another blood draw performed within minutes of the initial draw showed a different level, and the prosecution failed to elicit clarifying information from her witnesses about it.

    The judge granted the 1118.1 motion as to the sentencing enhancement.

    For DUIs, unlike many other crimes, forensic evidence (or at least prosecution witnesses trained to convincingly testify about what passes for that these days) typically propels a case beyond the 1118.1 threshold, into the risky land of "that's a question for the jury to decide."

    I have seen judges deny 1118.1 motions even in a case where the BAC is .07/.08. In the DUI realm, the bias of law enforcement officers, heightened prosecutorial zeal, and sometimes judicial leanings, often push weaker cases far past the point where other misdemeanors would resolve.

    Good luck with your case.

  2. It can only be granted where there is a lack of "substantial evidence" as to one or more elements of the offense. Put another way, there has to be something so lacking that no reasonable jury could conclude, beyond a reasonable doubt, that the something existed. Example: one element is that you are driving. Let's say that the officers testify that you were NOT driving the vehicle when they encountered you, but that you were simply standing next to it. They offer no evidence as to whether you have the key, or even if it's your car, but they say that you were walking away from the car towards the door "as if you had just left the car". It is entirely speculative and no reasonable juror should be a able to find, beyond a reasonable doubt, that you were driving.
    Now change the facts a little: evidence is offered that it's YOUR car, YOU have the keys in your pocket, the engine is warm, there's nobody else standing around and somebody testified that the car wasn't in that parking spot a few minutes earlier. With those facts, a reasonable juror COULD conclude that you were driving, from the circumstantial evidence.
    Bottom line: if a plausible explanation that points to guilt is supported by the evidence, it's a matter for the jury to decide. If there isn't enough for a plausible explanation of guilt, it doesn't.
    I don't know if this helps, but lots of attorneys and judges don't get where the line is either.

    Answering your questions on this forum does NOT constitute the forming of an attorney/client relationship. The opinions rendered herein are based on general principles of law. Laws vary from jurisdiction to jurisdiction and there are often numerous factors which can render advice or an opinion inapplicable. You should NOT make any decisions about the handling of a legal matter based on any opinion posted on this forum. Rather, you should directly consult with an attorney about the particulars of your case before making ANY decisions.

  3. 1. There is insufficient evidence presented that the defendant was actually driving the car;
    2. There is no testimony as to any nexus between the time of driving and the intoxication (e.g., the driving could have been several hours after the drinking. etc .

    In some of these circumstances the judge could conclude that no reasonable jury, based on the evidence presented could find guilt beyond a reasonable doubt.
    These motions can be granted, but can be tough to win. Most judges would prefer the jury do the acquittals unless its crystal clear.

    No legal advice is given here. My responses to questions on Avvo are never intended as legal advice and must NOT be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship. Exchange of information through Avvo's Questions & Answers forum does not establish an attorney-client relationship with me. That relationship is established only by joint execution of a written agreement for legal services. I am only licensed in the States of California and New York and the District of Columbia

  4. There are very few circumstances under which a motion for acquittal might be granted in a DUI. In your case, it seems that if the arresting officer dies or does not show up for trial (and the judge does not allow the prosecution a continuance to secure his attendance), then you may be able to succeed on this motion, once the People rest in their case.

    It is very, very hard to succeed on such a motion. Your facts sound like inconsistencies and credibility are you major arguments.

  5. Here is the example I use when teaching 1118.1 motions to new prosecutors. It is based on personal experience -- mine. There is no teacher as effective as failure.

    Defendant charged DUI and misdemeanor child endangerment for driving with a .19 and an infant in car seat. Prosecution puts on a splendidly persuasive and detailed presentation of the DUI evidence, but says nothing in front of the jury about the presence of the infant in the car. When prosecutor rests, defense immediately moves for dismissal of count 2 pursuant to PC §1118.1. Court immediately grants motion without discussion. Jury could not have determined defendant guilty of that charge because there was no evidence on that count. In other words, there wasn't anything for the jury to consider or argue about.

    No legal advice here. READ THIS BEFORE you contact me! My responses to questions on Avvo are never intended as legal advice and must not be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by joint execution of a written agreement for legal services. My law firm does not provide free consultations. Please do not call or write to me with a “few questions” that require me to analyze the specific facts of your history and your license application and prescribe for you how to get a State license. Send me an email to schedule a paid Consultation for that kind of information, direction, and assistance. My law firm presently accepts cases involving State and federal licenses and permits; discipline against State and federal licenses; and disciplinary and academic challenges to universities, colleges, boarding schools, and private schools. We take cases of wrongful termination or employment discrimination only if the claims involve peace officers, universities or colleges.

  6. You stated you already have a lawyer, but you're shopping for a second opinion from a "JD". Just so you know, a JD is not necessarily a lawyer, but this site is for lawyers (this section is criminal). I would leave the 1118 to your attorney. She has to make it after the People rest their case, only then will she know what to say to try and prove insufficiency of the evidence presented by them. Therefore, it depends on the facts of your case and what is presented at jury trial and how strong your defense is. Good luck, and try to have faith in your lawyer, it sounds like she's doing a good job. LAW OFFICES OF VICTORIA CLEMANS

    This is a general statement regarding law and facts and should not be construed as an attorney-client relationship or a solicitation for same.

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