Criminal Law Review

The short answer is maybe. Let’s say you have been arrested for D.U.I. The State has filed the formal D.U.I. charge in a document called an “information”. After reviewing the videotape several times and reading through the reports I file a number of motions.

Among the motions which I might file would be a motion to suppress physical evidence and statements. In the motion I would seek to suppress the stop, the field sobriety exercises, the refusal (hopefully) to give a sample of breath, any and all statements made by you and the D.U.I. tape(s), The basis for this motion can vary from alleging the officer did not have reasonable suspicion to stop you to begin with to the officer not having reasonable suspicion to request you to perform roadsides to the officer not having probable cause to arrest you to the officer……. well you get the picture! There would of course be a hearing on the motions.

At the hearing the judge would hear the evidence presented by the state through their witnesses, usually one cop, but sometimes more. The defense (me) would of course artfully cross-examine the witnesses. After the evidence is presented the defense would make argument to the court, hopefully citing relevant case law. The State would then do the same and almost always will refer to testimony that wasn’t even presented at the hearing. The court would then rule. If the motion to suppress as I have outlined it above is granted then the state’s case is gutted. This means the state cannot use the evidence at trial. The state will either nolle prosse (drop charges) or file an appeal, which is rare. The defendant wins.

But suppose the foregoing set of facts but when the state gets the motion they look at their facts and talk to the witnesses. The assistant state attorney determines it doesn’t look good for them so he calls defense counsel (me) and offers a reckless driving in lieu of the D.U.I. This is a win. The driver doesn’t get the D.U.I. conviction and the plea on the reckless usually does not involve a license suspension (none of mine ever have). You ask, so what is the advantage? Consider this, the defense counsel is aware anything can happen at a motion or at trial so if a reckless is offered I always advise my client to accept.

Copyright 2008 by Timothy C. Foster. All rights reserved!