If the motion to suppress is being carried and heard on the same day as a DWI Trial, will the state subpoena the arresting officer twice? One for the motion and one for the trial?
No. The State will only subpoena the officer one time and he or she will stay there all day if necessary. If the officer needs to appear another day (the next day, or even a month later) then the judge will just swear that officer to return on that day...which has the same legal effect as a properly served subpoena.
Another tactic that a lot of Harris County judges are using is to "carry the suppression issue with trial," meaning that you won't get a full suppression hearing before the trial. This method is worse for the defense but the judges like it because they don't have to hear the same testimony twice. Presumably, as long as the defense lawyer properly objects before the evidence in question is admitted, the judge can exclude it if it was illegally obtained (which may then lead to a directed verdict).
Finally, you should file a proper BUT VAGUE motion to suppress before the trial and prepare BUT NOT FILE a very factually and legally specific brief supporting the motion. At the proper time (which is after the testimony is closed on the issue but before the judge has ruled) you will file this brief in support of your motion. That way you don't give the prosecutors a chance to woodshed their witnesses ahead of time and prepare to defeat your case.
Make sure you have a qualified and experienced DWI lawyer assisting you.
Some cases hear the suppression first, and if you lose that, go directly into the main trial. It may occur all at the same time, with one going first and then the second. Once the officer is subpoenaed he will be there and stay there until the judge excuses him.
You need an attorney to get the facts, and research the cases for you to have ANY chance whatsoever to win the suppression hearing. The above question should have been answer in close consultation with your criminal attorney.
The suppression should be FULLY RESEARCHED and FULLY BRIEFED long BEFORE you go to trial. Search and Seizure isues are FACT INTENSIVE.
If you don't have an attorney yet, the below link is to the Harris County Criminal Lawyers Association. (of which I used to be a member).
Call and hire a criminal attorney and prepare-prepare-prepare!!
The State will only subpoena the office once. If you file a Motion to Suppress most courts will allow you to either have a pre-trial hearing on your motion or to carry it with trial. As a DWI attorney, I almost always carry mine with trial. The reason I do so is simple. The State can appeal a pre-trial motion, they cannot (usually) appeal a trial motion.
For example, lets assume the officer's reason for stopping you is because you failed to stop at a designated stopping place (i.e., behind a stop sign). If we have a pre-trial motion to suppress regarding that issue and the judge agrees with the defense, the state can then appeal that decision to the court of appeals. If the court of appeals disagrees with the lower court judge, they can reverse his/her decision and remand the case back for trial.
If the motion ir ran with the trial and the judge grants the motion, typically a directed verdict of not guilt is delivered by the judge. Once a defendant is found "not guilty" the judges ruling on the motion to suppress cannot be appealed. The case is over at that point for the defendant.
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