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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?

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Attorney answers 6

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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.


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.



Thank you so much for your response. Your examples were fantastic - I think I understand much better what these motions are, when they are utilized and what purpose they serve. I really appreciate the clarification!


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



These examples, in addition to Mr. Levin's, are also very informative and helpful. Thank you so very much for taking the time to enlighten me.!


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.



I understand - and thank you for taking a moment to inform me of the limitations of these types of motions. I really appreciate you input.


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.



Ms. Mcall, Thank you for taking the time to answer my question - I sincerely appreciate your input. I have read a great deal of your contributions to this site over some number of months and your answers to questions posed by persons seeking guidance on their cases spanning a wide variety of legal specialties has been fantastically enlightening. I believe many of your colleagues here would readily agree that any input you happen to offer should be afforded special consideration and significance, so I am especially grateful my query interested you enough that you were inclined to provide your insight. I love that your is an example based on personal experience and my understanding of this motion type and purpose is greatly improved by your sharing it with me here. Thank you for your time, your story, your ongoing dedication to your profession and you many contributions to this site. I'm sure many visitors questions are aggravating, but I for one have learned a great deal from your past responses and I hope you'll continue so I may read many more in future.

Christine C McCall

Christine C McCall


Thank you for your very kind and generous comments about my contributions here on


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.



First, yes; I do have an attorney - an (AMAZING) attorney I clearly stated from the very start of my question I am sincerely grateful to have representing me and whom I have absolute faith in. I'm not certain what gave you the impression that I was "shopping for a second opinion" given that I made sure to state that it was not my intention to undermine him/her in my second sentence. Nonetheless I assure you I had/have NO intention of interfering with my attorney in his/her defense of my case. I know I have no right or reason to "suggest" how to do his/her job, my attorney's knowledge and experience are invaluable - their assignment is the only reason my case is defensible. Yet, as much as I adore my PD, the caseload s/he carries assures we get very little time to communicate or consult and I wouldn't want to abuse his/her time by asking mostly academic questions like the one I posed here. I happened upon a reference to this motion in an article and became curious about what might be necessary for one to be granted and whether they can be/are made successfully in DUI cases. I wasn't asking whether one should be made my case in particular, I trust my attorney will make that decision if it is prudent, but given what little I had read/understood it seemed possible s/he might make a motion like this at trial and I wanted to learn more about them to better understand the probability. I am incredibly grateful for the responses I received. The information provided was much more than I'd hoped for, has given me a much clearer understanding of how/why these motions are made and I thank each of you for taking the time to explain this to me. Secondly, I do know that not all JDs are lawyers (but *almost* all lawyers are JDs, right?) and that not all lawyers - JDs or otherwise - practice criminal law. This site limits the number of characters allowed per question and I thought the abbreviation was acceptable - I assumed, perhaps wrongly, that the reference to your advanced degree would convey the reverence for your professional expertise I wished to express. For the purposes of this site, your clarification seems like a distinction without a difference, but I apologize if I offended anyone. As I stated in my original question, I'm not an attorney and have very little knowledge of criminal law or its practice, but an arrest forced my entry into the legal system - this completely foreign world - and I am often curious about laws and procedures controlling my case, and criminal law in general (which I find generally to be utterly bewildering and terrifying). I genuinely appreciate the wealth of information available on this site and the generous contributions of many dedicated and knowledgeable attorneys participating here for free. I understand that each of you is donating your very valuable time when you respond to these questions, and that this site is primarily a professional network which allows inquiring persons to connect with attorneys they may wish to retain. I also understand that there are sometimes very good reasons to admonish a person for posting a question despite having retained or been assigned counsel, but I wish you had read my question a bit more carefully. Perhaps then your answer might have been a bit less condescending.

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