California DUI Lawyers Association

“Fast Eddie” Kuwatch All Day Dui Seminar and

Annual Meeting
March 13, 2010
“Dumptrucks and the Motions Necessary to Avoid
Being One”

“Ruminations on Motions”
by
Michael J. “Captain Motion” Kennedy, Esq.
Kennedy & Roe
1111 East Tahquitz Canyon Way, Suite 101
Palm Springs, California 92262
760-320-6691
www.kennedyroelaw.com

“Battle Hymn of Captain Motion”

Mine eyes have seen the Glory of the Coming of the Cap,
He is trampling through the courthouse where the Hunnish evils are at…
He has loosed the fateful lightening of his terrible motions attacks,
His motions save us all.
Glory! Glory! Captain Motion,
Glory! Glory! Captain Motion,
Glory! Glory! Captain Motion,
His motions save us all.

A Republican Form of Government means of laws and not of men1,

We must heed proper standards at home before we bomb Iraq again…
One method for doing such is to perfect our motions Zen,
His motions save us all.
Glory! Glory! Captain Motion,
Glory! Glory! Captain Motion,
Glory! Glory! Captain Motion,
His motions save us all.

I have read his fiery motions, I have seen what they have wrought,
Alas, too oft’ I have closed my eyes to what they should have taught,
1
“…and women.” But it messes up the rhyme!
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 But if we hear the call and open our hearts we’ll find what we have sought,
His motions save us all.
Glory! Glory! Captain Motion,
Glory! Glory! Captain Motion,
Glory! Glory! Captain Motion,
His motions save us all.

Preface:

Criminal motions are my game, which is why “motion” is in my

name.
There are ominous developments on the state and national
scene that suggest revolution is at hand, or indeed actually
proceeding apace yet without arms. Save for a few significant and
surprising cases this past year, the judiciary is increasingly oblivious to
its founding purpose, best chronicled in Number 78 of The Federalist,
which is to protect the individual from an overweening executive.
Now, it increasingly consorts with an out-of-control executive to
oppress individuals; it increasingly becomes, instead of resists, and
overweener. The executive, then seeing that it will not be reined in by
the judiciary, rampages across the Fruited Plain and against liberty,
overlooking the fundamental lesson that where the People are
sovereign, the neutral ends of Justice are supposed to be served by
their prosecutors. Berger v. United States (1935) 295 U.S. 78, 88. And
government in general, laughingly adjudicated by self-proclaimed but
faux “originalists,” exhibiting far more “faux” than “originalism,”
forgets that the ultimate message of the Framers is that the default
position in this Republic rests favoring individual liberty and against
governmental power.
That is, there is a war against liberty, in this land that was
“conceived in Liberty,” and hence all actors on the field must comport
and equip themselves accordingly. And one would hope that
prosecutors would eventually come around to recalling that their
calling is simply the Framers’ message that liberty dethrones power.
Yes, yes, I know there are other than criminal defense attorneys in this
audience, but then even prosecutors and judges have family members
who could be the victims of illicitly overweening government.
Although those involved with criminal law generally understand
that motions are available, and should be brought, and may be
successful, very often that understanding gets lost when it comes to
drunk driving defense, and hence far too many motions opportunities
are lost by default. But if you would do motions for other cases, do
them here; and if you have not gotten clued to the value of motions in
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other cases, get with it.
One of the biggest problems facing those doing constitutional
defense for people accused of drunk driving is that drunk driving has
long been, and is increasingly, a political crime. It is no secret that
MADD, SADD, and other Prohibitionist political action groups,
forgetting apparently that the 18th Amendment was repealed,
elevating symbolic victimization to an art form, have bulldozed their
way into legislative and judicial precincts so effectively that their
governmental patrons low-crawl around and pander to their extortion
to keep them from demonstrating outside legislative chambers and
courthouses. And those groups’ political terrorism has effectively
engrafted drunk driving exceptions to the Constitution, and to
common sense, onto our juro-political landscape such that “deuces”
are harder for the defense effectively to litigate than are murders.
As I have lectured, publicly and privately, for well-over 20 years,
and as I scolded in the court of appeal just five weeks ago, there have
grown up drunk driving exceptions to the Fourth Amendment
[Ingersoll v. Palmer (1987) 43 Cal.3d 1321, Michigan v. Sitz (1990) 496
U.S. 4442, People v. Banks (1993) 6 Cal.4th 926, People v. Wells (2006)
38 Cal.4th 10783, People v. Schofield (2001) 90 Cal.App.4th 9684, People
2
In Indianapolis v. Edmond (2000) 531 U.S. 32, 39, drunk driving was decreed to
be an exception from the general rule of particularized suspicion for liberty
infringements, further proving that DUI is a political crime.
3
This enunciation of the radical doctrine that there is a DUI exception to the
well-established anonymous tip rule is eyebrow-raising in the extreme, but cert.
was denied, even though the holding is contrary to U.S. Supreme Court
precedent, and it is premised on the constructed hyperbole that DUI is more like
a bomb than a concealed gun! See also Lowry v. Gutierrez (2005) 129
Cal.App.4th 926 [anonymous informants okay for stops for DUI license
suspension purposes, even though 4th Amendment standards are supposed to
govern such proceedings]. I must confess that I thought Wells would go the
other way, given that the U.S. supes have so held, or that cert. would be
granted.
In original constitutional intent, or course, there is no “public safety”
exception to the 4th Amendment, because the 4th Amendment was designed to
be individuals’ safety against public power. Ah, those “originalists.” Wonder what
Framers’ utterances they look at when they self-servingly assign themselves
such misleading labels!
4
“Presence,” a common law requirement for misdemeanor arrests since before
the Framing, and hence deemed to be a reasonability requirement under the 4th
Amendment by well-established authority, is not required for a DUI arrest
because the evidence “might” disappear. Of course, it might also be increasing
due to the passage of time, but who cares ~ “get them drunks off’n thuh road”!/?
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v. Thompson (2006) 38 Cal.4th 8115, People v. Mateljan (2005) 129 Cal.
App. 4th 3676, People v. Hardacre (2004) 116 Cal.App.4th 12927,
People v. Wilson (2003) 114 Cal.App.4th 9538, Gikas v. Zolin (1993) 6
Cal.4th 8419], to the Fifth Amendment self-incrimination clause
[Berkemer v. McCarty (1984) 468 U.S. 42010, South Dakota v. Neville
(1983) 459 U.S. 55311], to the Fifth/Fourteenth Amendments due
process clauses [California v. Trombetta (1984) 467 U.S. 47912, People
v. McHugh (2004) 119 Cal.App.4th 20213, MacDonald v. Gutierrez

5
Notwithstanding the Framers considered one’s residential door to be the
threshold beyond which even the King could not pass, if MADD’s obedient
gendarmes want to come in to arrest you for DUI, let not a warrant nor the 4th
Amendment stand in their way. The citadel has surely fallen. For an offense of
lesser gravity than DUI, though, the door is still closed to marauding gendarmes.
See People v. Hua (2008) 158 Cal.App.4th 1027 [suspicion of possession of less
than an ounce of marijuana does not permit a warrantless entry/arrest on
exigency arguments].
6
It is not constitutionally unreasonable for the government to break the law by
using unlicensed people to draw blood for DUI arrests [stabbing a person with a
needle is, of course, ADW!]; breaking the law to enforce it does not offend
constitutional precepts, at least where DUI is involved.
7
Not constitutionally unreasonable for cops to violate speed trap prohibitions to
arrest DUI driver because speeding is not related to drunk driving. [Silver lining:
“he was speeding” is irrelevant at DUI trial!]
8
Schmerber “necessity” or “exigency” requirement for warrantless blood draw
tossed out window, because it is DUI. But then, uh, Schmerber was a DUI
case!/?
9
The DMV can thumb their administrative noses at what the criminal courts say
about the illegality of the stop that brought the DUI suspension issue to their
attention; they have their own “standards” that the appeals courts won’t disturb,
because it is, after all, drunk driving! [It’s also supposed to be “a Constitution that
we’re expounding”!] More explicitly, the exclusionary rule does not apply to the
“civil” DMV proceedings growing out of the criminal case, to which it applied and
where its application resulted in dismissal! Park v. Valverde (2007) 152
Cal.App.4th 877, 880.
10
Even though Miranda applies after a “person has been taken into custody or
otherwise deprived of his freedom of action in any significant way,” Miranda
v. Arizona (1966) 384 U.S. 436, 444 [emphasis added], they don’t think
commanding one to stop for DUI investigations and accusatorily grilling him
beside the road with red lights flashing is a freedom deprivation of any
significance. Huh?? Lunatics running the asylum? No, Prohibitionists running
DUI law, with whom the “independent” judiciary is too often in political cahoots.
11
Even though the Fifth Amendment prohibits compelled statements coming into
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(2004) 32 Cal.4th 15014, People v. Bransford (1994) 8 Cal.4th 88515,
Burg v. Municipal Court (1983) 35 Cal.3d 25716], to the Fourteenth
Amendment equal protection clause [People v. Chavez (2004) 116
Cal.App.4th 117], to the Ex Post Facto Clause [People v. Sweet (1989)
207 Cal.App.3d 78 and People v. Forrester (2007) 156 Cal.App.4th
102118, Ellis v. DMV (1942) 51 Cal.App.2d 75319], to Penal Code section
1387(a)20, and, inter alia, to the very meaning and concept of
recidivistic enhancement for repeated offenses.21
And perhaps the ultimate recent exemplar that result-

evidence, and hence prohibits DAs from commenting on an accused’s refusal to

talk, if a person arrested for DUI says “I refuse” to take your tests,” that is
admissible and can be commented upon: it is drunk driving, after all!
12
The cops can ignore express legislative commands to collect back-up tests,
and they can throw out or not collect test results, and that does not offend due
process unless you can show that (a) the tossed stuff would have helped you,
and (b) the cops knew it and threw it out to prevent that help. You have to prove
what you don’t have, and never saw, and have to prove the cops knew the
unarticulable/undiscovered significance of the stuff you know nothing about.
That’s from the “Catch 22”nd Amendment, I guess!
13
Systematic, purposeful scheme by county to break the law in DUI evidence
collections does not offend the Constitution.
14
As long as there is some sworn statement, regardless of its substance and
content, the license suspension can be based on unsworn material at DMV
hearing, regardless of statutory language that could be construed otherwise.
15
Even though the science of the matter is that BAC from blood testing and BAC
from breath testing might be vastly different, from person to person and for the
same person under varying circumstances, it does not offend the Constitution to
prevent you from introducing evidence, or cross-examining, about such things; it
is DUI after all! The Supreme Court has partially corrected the evil perceived
from Bransford by clearly holding recently what was implied in Bransford, that
partition ratio is a valid line of inquiry for the (a) count, just not for the (b). People
v. McNeal (2009) 46 Cal.4th 1183 [a fine piece of work by our own Darryl Genis,
inter alia].
16
There’s no constitutional problem convicting a person for a quasi strict
liability/per se offense, even where he has no actual notice of when his conduct
becomes criminal, because it is, after all, drunk driving!
17
Drunk drivers are not similarly situated with drug addicts [even though we keep
hearing that alcohol is a drug!], so benefits of CRC not available to felony DUI
defendant.
18
There’s no constitutional problem lengthening the priorability-effects shadow
resulting from a DUI conviction after the conviction because…, hm, uh, oh yeah,
it’s the new case that is the bad thing! “But the priorability shadow is a
consequence of the previous conviction.” “Shut up: it’s drunk driving!”
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orientedness controls the field is Troppman v. Valverde (2007) 40 Cal.
4th 1121, where the state Supreme Court held that administrative
sanctions for drunk driving do not require any proof of “driving.”
Huh?? If you prove that you were actually, factually not driving, the
state can take your license as if you were if the self-serving cop
convincingly claims that he thought you were! And we wonder why
the people of Iraq are not welcoming our version of a “rule of law”
with open arms and roses in the streets! It is no different from what
they had, merely more pretentious.
“Well, Great, Kennedy; you have depressed the heck out of us,
so we might as well give up and go home and have a drink! Or two.
Uh…, NO!
Notwithstanding all the impediments to liberty thrown up at us
by the courts and legislatures, there are things to fight and win, and
devices with which to do so. All permutations and possibilities cannot
be covered in the scope of this brief presentation, but think on these
things.
Some of you might have heard from me before (at seminars, in
person, on the “net,” etc.), and you might recall that I long ago joined
the lecture circuit because of the debilitating negativity which often
seems to permeate our calling, and which is too often perpetuated by
some MCLE presenters. It was too often preached (and still is by
some) that motions in general cannot be won by the defense, and
that, in particular, the Fourth Amendment is gone and that motions to
suppress evidence for constitutional violations are therefore
impossible to win. The first time I heard that at one of the MCLE
lectures, I had just completed a veritably legendary series of wins of

19
One’s right to a license due to DUI conviction can be affected by changes in
the law after the convictions, conformably with ex post facto prohibitions,
because the change is to “protect the public.” Huh??? The Constitution is to
protect the public from government; government was not generally understood
to be the protector, but instead the obliterator, which is why we have a
Constitution, and [supposedly] limited government.
20
In my recent People v. Hernandez (2010) --- Cal.App.4th --- [E047219], against
which I am filing a petition for review for patent, and ignorant, error on the part of
the court of appeal.
21
See People v. Snook (1997) 16 Cal.4th 1212, People v. Baez (2008) 167
Cal.App.4th 197, wherein “prior” convictions need not to have really been of prior
conduct to invite recidivistic enhancement [altering the meaning and concept and
value of recidivism] for drunk driving and DUI-manslaughter, although it does
need to be prior conduct for other crimes. See, e.g., People v. Rojas (1988) 206
Cal.App.3d 795.
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§1538.5 motions. (And my run has not abated22, even though there
are some Johnny-come-latelies who think they have introduced the
idea of motions for DUIs ~ many years after I started winning them!) I
queried myself whether (the lecturer being an “expert”) I should give
back all the evidence I had just suppressed that year. I decided
otherwise.
I decided to clear the air of that negativity and to illustrate that
these things can be won, are being won, and will always be able to be
won, as long as we: (a) believe it is possible, (b) convey that belief to
our audience, and (c) educate ourselves to the substance and
methods for doing so. What I began in CPDA23 lectures almost 2
decades ago, I will continue here and elsewhere.
If you think you are going to lose, you will lose (if you even
bother to mount the attack). If you believe you have a right to win,
and if you then convey that belief to the courts and to our opponents
(which are too often congruent these days!), you will have remarkable
successes.
Recall, first and foremost, that those representing people
accused of crimes are not “criminal” defense attorneys; instead, they
are constitutional defense attorneys, with individuals accused of crime
(read “clients”) occasionally the mere incidental beneficiaries of their
efforts. Their overarching duty must be to enforce the law: they
enforce the Constitution against its attempted dismantlement by the
Hun.
You need to remind the courts that, as note above, the role of
the judiciary in this Republic, as expounded in Number 78 of The
Federalist and elsewhere, is to patrol the boundary lines of the
Constitution and to defend individuals from rapacious and
overweening government. “I was the best friend the executive ever
had” is not a legitimate epitaph for the American judge.
And you need to remind the DA of Justice Sutherland’s decree of
the prosecutor’s role in this Republic [alluded to supra]. “The
[prosecutor] is the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern
impartially is as compelling as its obligation to govern at all; and
whose interest, therefore, in a criminal prosecution is not that it shall
win a case, but that justice shall be done. As such, he is in a peculiar

22
Indeed, as some of you know, I have won all of the checkpoint stop cases I
have brought over the years, including one by appellate division reversal just two
weeks ago, notwithstanding some “experts” are decreeing that such cannot be
won, and most who try do not win.
23
California Public Defenders Association.
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and very definite sense the servant of the law, the twofold aim of
which is that guilt shall not escape or innocence suffer. He may
prosecute with earnestness and vigor -- indeed, he should do so. But,
while he may strike hard blows, he is not at liberty to strike foul ones.
It is as much his duty to refrain from improper methods calculated to
produce a wrongful conviction as it is to use every legitimate means to
bring about a just one.” Berger v. United States (1935) 295 U.S. 78,
88.
And where apt, you must have as your touchstone the seminal
theorem that where statutory law conflicts, in its enforcement, with
constitutional law, the Constitution must always win out. Marbury v.
Madison (1803) 5 U.S. 137, 177-178. In search and seizure, and in
many other motion settings, attempted enforcement of statutory laws
[Vehicle Code, Penal Code, Health & Safety Code, etc.] conflicts with
enforcement of the Fourth, Fifth, and Sixth Amendments to the
Constitution, or of its “due process clauses,” so the latter must always
win out, and you should speak it thusly and assertively.
Constitutional defense attorneys, are the ultimate law
enforcement officers, because the law they enforce goes to the very
foundations of this Republic and to the meaning of popular
sovereignty. But those of us who embrace that mission don’t need no
stinkin’ tin badges in our enforcement effort. Our hearts and our
souls, and our individual and collective senses of mission, and the
Constitution itself, are our badges. You must wear them proudly, and
with a proper sense of purpose, or else go into Wills and Trusts [the
place of and for the Dead].
I am going to share with you some of my personal rules, the
things that have helped guide me in my pursuits over the years, the
things that caused me to be anointed “Captain Motion” so many years
ago. Of course, there are rules and then there are rules, but if those
of you who are infected with negativity about this stuff are not
exposed to the empirical possibilities regarding their application, the
rules will never be embraced, nor supply the necessary direction,
because many will not even attempt the journey. Interspersed with
my rules I shall give examples of things I have done and continue to
do, so that you see that I write not from hypothesis and wishful
thinking, but from experience. If I can do it, so can each one of you, if
you only believe and press forward.
What I am calling my “rules” are things I have learned to give
me direction in this stuff, and it is an admixture of positive law, case
law, and my practical experience. You need to develop your own
personal rules for addressing the positive and case law for your own
practice, but the following serve me very well, and many are
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universals.

My Rules:

1) Have an aggressive and positive and assertive bearing which

conveys a sense of “I have a right to win this thing.”

Do not be tentative or meek in your dealings with courts or with

the Hun. Purposeful and aggressive predators of all sorts look for
signs of weakness or submission in their opponents on which to
capitalize and on which to build a dismantling attack. When I stride
into the courtroom, there is no question who is in charge of what I am
about to do, and it is neither the judge nor the prosecutor.
At the same time, do not put forth a bluster for which you have
no substantive support nor preparation. Be a crackerjack, not a
crackpot.
There is nothing wrong with saying “I don’t know”; just do it in a
way that the issue that you don’t know is irrelevant to what you are
doing. There is, however, much wrong with pretending you do know
something and with then being undone by someone who is
accidentally more prepared on the point, because your credibility then
goes out the window. Our credibility, in bearing and in substance, is
our biggest ally.
Be prepared aggressively and steadfastly to stand against the
Leviathan poised against us, and that Leviathan includes bad and
overbearing judges and prosecutors as well as errant cops. I have
seen all too many of our number who, while poised to stand tall with
the oppressed, weaken when the opponent is an evil and aggressive
and badminded judge. That, for me, is when the going gets fun.
Remember that bad judges respect power and aggression; right-
thinking ones respect scholarship; you must equip yourselves to stride
into every court armed both with attitude and acumen. I hesitate not
to suggest some things are proceeding as though John Ashcroft or
Alberto Gonzales were prosecuting the case, all the while I cite
irrefutable authority for my legal broadsides.
When it is all over and you have won, however, take the victory
with humility and calm, and forbid your client to celebrate until he has
departed the scene. When you have proven your point, give thanks
and move on, because that will engender appreciation by the court
and will abet any refiling frenzy possibly swelling up in the wounded
breast of the opposing beast. I am so dispassionate about my wins
(as distinguished by the pyrotechnics of my fight!) that my own
colleagues are often oblivious to even the most significant ones,
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unless they were in court at the time.

2) Know the nature of that which you seek and how to achieve it.

That sounds almost too facile and obvious for exposition, but
there are all too many times I have seen, and heard about, attorneys
advocating points without comprehending the issue. And there are
many times they don’t press any point, even though it is so clear and
glaring that it begs for exploitation.
For instance, don’t bother to litigate an illegal arrest if there are
no fruits of the arrest to suppress. Illegality of arrest generally only
helps us (in §1538.5) if there is some tangible or intangible thing to
suppress as a result of the arrest. The consequent prosecution itself is
not such a fruit.
And familiarize yourself with the magic of Wilder motions.24
Some thought they were dead years ago25 [although I never shrank
from bringing them, because they have always been compelled and
permitted by the nature of the burdens assignment by the U.S.
Supreme Court, things properly understood], but our own Supreme
Court reinvigorated the procedure in People v. Williams (1999) 20
Cal.4th 119, 130. You must read Williams carefully, because too many
do not understand what it provides. Understand Wilder and Williams:
all warrantless liberty infringements [moving traffic detentions,
checkpoint stops, static detentions, searches, seizures, etc.] begin
with the same basic Wilder allegation that the infringement was
without a warrant and it produced fruits. Do not allege more.26 The
fatality of not understanding that basic rule is chronicled in People v.
Oldham (2000) 81 Cal.App.4th 1, where warrantlessness was the
24
Wilder v. Superior Court (1979) 92 Cal.App.3d 90, 96-97.
25
And one regularly assigned retired judge in Riverside Court still asserts they
are unavailable, so I have reported him to the presiding judge and to the AOC
[the CJP takes the untenable, hand-off position that they have no jurisdiction
over retired/assigned judges, although they obviously do]. He “punished” me by
automatically disqualifying himself from my cases!
26
One pro-government judge I had the unpleasant duty of dealing with some time
back trumpeted, pre-hearing, that he does not like defense counsel to merely
touch things thusly and thereby transfer the burden to the DA; he demanded to
know what my theory was. I politely said my theory was that the liberty
infringement was warrantless and that we should simply proceed to the hearing.
He was infuriated that I would not give a pre-hearing telegraph of the matter,
obviously so the clueless DA and fledgling cop would know what to say and do.
You must stand your ground on this issue, or turn it over to those who can and
will. This is war. And not of our making. But we can win. If we only will.
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overall issue, but scope of consent was all that was pled/litigated, so
warrantlessness did not remain the issue on appeal, and the burden
[on which he had defaulted in the trial court] accordingly improperly
shifted to the defendant. You should read Oldham so you can see the
dangers of not understanding this aspect of the craft. [I have included
Williams and Oldham in the CD packet and paperwork. Read, and
study, and understand them.]
You have a duty to know what you are doing.
In your moving attack do not supply the counter-rule (unless
there is a strategic or policy or liberty purpose for doing so). For
instance, if you are moving to suppress the fruits of an illegal warrant
search, don’t raise, in the first instance, “good faith”: that is the
People’s counter-rule, invocable by them once we prove that the
search was not supported by probable cause. Too many judges still
believe that we have to prove “bad faith,” rather than that the People
have to prove “good faith.” Raising the point in our moving attack
nourishes and perpetuates that confusion. Once the People plead the
doctrine, then sweep it away in your response.
Same thing for consent, exigency, etc., on warrantless searches:
do not set up a premature straw man and then attempt to disprove
that which the People have not yet even invoked. The burden is
theirs; not being sarcastic, but sometimes they forget the various
theories arguably available, and you should not jog their memories.
Of course, always anticipate the counter-rule and be ready to parry it:
just don’t raise it prematurely.
Read the relevant code sections, especially all of §1538.5, and
§1510, and §995, §995a(b)(1)27, and §999a.
Familiarize yourself with the 60/30/15 rule for felonies; 45/30
rule for misdemeanors. That is, you may litigate the denial of a
superior court §1538.5 motion by pretrial writ, PROVIDED (a) the
motion was made (read “filed”) within 60 days of arraignment in
superior court, and (b) the writ petition is filed within 30 days of denial
of the motion; if the 4th Amendment, or other, issues are litigated in
the superior court by §995 motion, you must file your writ petition
within 15 days of its denial (provided, again, the motion was filed
within 60 days of arraignment). And you may litigate the denial of a
municipal court §1538.5 motion by pretrial APPEAL, PROVIDED (a) the

27
Remand is not automatic: there must be a minor error [corpus missing and
Fourth Amendment problems axiomatically are not!] of omission, ambiguity, or
technical defect [purposeful evidence rulings/objections are not] which can be
expeditiously corrected [the only part usually focused upon, and the least
important].
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motion was filed within 45 days of arraignment, and (b) the appeal is
filed within 30 days of the denial. (This is the only circumstance where
a pre-trial ruling of this sort is litigated by appeal rather than by writ
petition.) Those time parameters are deemed jurisdictional, so pay
heed.28
A critical and often fatally overlooked point is that “pre-trial”
“motions” regarding evidence admission [foundation, Kelly/Frye,
Miranda, Trombetta, etc.] are really common law evidence objections
and they do not survive their denials for appeals purposes unless (1)
reiterated at trial, (2) agreement is reached that the pretrial ruling is
the trial ruling, or (3) futility of reiteration clearly appears on the
record. But the general rule is that such objections [whether
denominated “motion,” “EC 402,” or otherwise] [except for section
1538.5 motions!] are waived for appeals purposes if not brought AT
trial. See, e.g., People v. Campa (1984) 36 Cal.3d 870, 885-886.
Therefore, query whether you should ever bring such things other
than at trial, where jeopardy has attached. There might be strategic
reasons for doing so, but rarely does anything other than confusion
cause, and result from, such pretrial litigation.
For felony DUIs, drug possession, etc., at preliminary hearing, if
they lazily attempt to carry the forensic burden with Prop. 115
testimony from the cop, have a copy of Hosek v. Superior Court (1992)
10 Cal.App.4th 605 with you29, and object to the hearsay, and then
cross examine around the issues laid out in the case. I won a 995 on a
felony DUI some time ago, and on two drug cases not long ago, on a
pure Hosek record at prelim., plus Hosek-based section 995 motion.30
I have a denial of 995 motion writ issue pending in the California
Supreme Court right now.
Another fun win I had not long ago has to do with the confusion
over Berkemer and Miranda. Berkemer silently presupposes that the
stop is for a citable, non-custodial traffic infraction. But what if the
stop is otherwise, but then results in DUI admissions?
As has otherwise been noted, and which remains the law, when
the police physically stop a person for the observed commission of a
28
Note one significant change is motion filing rules starting in 2010: all of the
times noted for filings [10/5/2 days] are now “court” days. Rule 4.111(a),
California Rules of Court.
29
I carry a highlighted copy with me for all prelims involving forensic evidence
[felony DUI, drugs, etc.], and I tailor my cross examination around its salient,
negative pregnant points.
30
“But why waste your time with 995’s, since the DA can re-file?” I have won
hundreds of 995s over the past 20+ years, and far less than half that could have
been refiled actually were.
12
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custodial crime, that person is thereby “arrested.” Henry v. United
States (1959) 361 U.S. 98, 103 [“The prosecution conceded below,
and adheres to the concession here, … that the arrest took place
when the federal agents stopped the car. That is our view on the
facts of this particular case. When the officers interrupted the two
men and restricted their liberty of movement, the arrest, for
purposes of this case, was complete.”] [emphasis added], Peters v.
New York (1968) 392 U.S. 40, 67.31 In Peters, the officer raced after
someone casing the apartments and grabbed him by the collar as he
ran down the stairs: that grabbing was an “arrest,” not a detention,
because the crime observed that launched the chase was attempted
burglary [custodial] [Id., @66], not, say, speeding, etc., [non-
custodial].
Voila!: Miranda applies when the “stop” is for a custodial
offense, because a true “arrest” is deemed to occur then, by
authorities still extant [and Berkemer expressly acknowledges that
when the arrest really occurs, Miranda applies]. Moreover, there is a
new ballgame in this arena anyway, because when the Supreme Court
helped the government with Fourth Amendment issues in Atwater v.
City of Lago Vista (2001) 532 U.S. 318 [aggressively reinforced by the
recent anti-liberty decision of Virginia v. Moore (2008) 553 U.S. 164, ---
{128 S. Ct. 1598, 1604-1607}] by decreeing that custody, formal
arrest, is not unreasonable for non-custodial infractions [Lago Vista,
supra @354], they thereby unwittingly helped us on the correlative
Fifth Amendment issue here.
That is, the presumptively limited nature of the traffic stop, from
which all could reasonably be presumed to depart after citation, which
animates the Berkemer exception to Miranda [Berkemer, supra @439-
440], has now evaporated: people, all of whom are presumed to know
the law in this Republic, now know that their supposedly protective
Supreme Court has decreed that they can be shackled and trussed up
like a Christmas goose for the most minor of offenses.
Therefore, they can never presume to go on their way from a traffic
stop, and hence the time of the sort of custody dictating the right to
Miranda advisals that still exist in a traffic stop [Berkemer, supra
@440] commence at the git-go of the traffic detention. Dark clouds
and silver linings and all that! Know what you are doing, and demand
the logical result of that which has been established.
For bail matters, don’t get derailed into some idiotic “public

31
This is the tellingly overlooked companion to Sibron v. New York (1968) 392
U.S. 40 [yes, same cite], both of which were handed down the same day, but
given less notoriety than, Terry v. Ohio (1968) 392 U.S. 1.
13
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safety” or “assume the truth of the charge” route, neither of which is
apt.
The popular fallacy that the court is to assume a person guilty
for purposes of bail evolved from a clear misreading of the relevant
case law which has sadly been perpetuated, inter alia, by/in 4 Witkin &
Epstein, California Criminal Law §2008, ¶(2), pages 2368-2369 (2d ed.
1989).
Think for a moment on the significance of posing that bail
amounts may properly be determined by assuming guilt: if the crime
charged is anything other than, say, H&S §11357(b) or the like32, the
system may always require incarceration as a punishment, probation
being only an act of sovereign grace, let-them-eat-cakingly. Therefore,
no one charged with a custodial offense would ever be able to merit
O.R. or low bail if the guilt-assumption rule were the law, unless and
until he had served the maximum time permissible for the crime
charged. The answers to some of these apparent conundrums may be
found from applying the skills discussed in E.H. Levi, An Introduction
to Legal Reasoning (U. of Chi. 1949), rather than from researching the
cases to discover all-fours “holdings.”
Do not hesitate pointing out that the Courts frequently do not
know what they are talking about nor what the Constitution was
intended to mean. I had occasion to issue a scold in court just last
week that I will not presume to be instructed by a supreme court
about what my Constitution means when the Chief Justice of the
United States could not even get the four line oath of office for the
president correct, with it printed in front of him! For those who think
that is no big deal, query why they had a quickie re-administration of
the oath in the dark of night! It is because one might become
president upon a certain passage of time, or passage of predecessor,
but one cannot “enter the Execution of his Office [i.e., exercise any
presidential powers!]” until “he shall take….” The oath. An idiot who
cannot recite a printed Oath cannot tell me what my Framers
intended! But we digress….
Read the cases and understand them and don’t use listservers
as crutches. I read a post the other day that said “I thought [a famous
constitutional law case] said….” Uh, think not; read and understand.
Either it did or it didn’t; don’t debate on listservers what a case does
or does not say. Read it and learn.

3) Although arguably a subset of #2, if you have a felony, always

(almost!) bring your §1538.5 at the preliminary hearing.

32
Non-custodial misdemeanors.
14
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 It is important that one understands §1538.5(i) and then
employs its full potential. It is a fiction promulgated and perpetuated
by a self-serving executive that we only get “one bite at the apple” in
felony §1538.5s. And the only way that fiction became a serious
factor in constitutional folklore is because too many of us are not
paying attention to what the law really is in this regard. I had one
attorney, who takes felony appointments, preface his inquiry by “now,
since I only have one bite at the apple, where should I bring this
particular motion”? To my inquiry about why he thought he only had
one bite, he responded that “the DA told me that.” When I
temporarily suppressed my outrage and suspended my disbelief and
asked him what the statute had to say on the issue, he gave me a Dan
Quayle stare and asked “what statute.” At that point I did explode.
For felony 4th Amendment attacks, we get three bites at the
apple (at least): one at the preliminary hearing, one at the renewed
§1538.5(i) hearing, and one at a §995-4th Amendment motion
(provided the motion was brought at the prelim.). Only a slothful
attorney would give up the chance for such repeated attacks by
holding off from bringing an available §1538.5 motion at the prelim.
Of course, for most purposes, where the motion was brought at
prelim., the facts for the suppression motion in the superior court are
largely those of the prelim. transcript, but so what? Much more often
than not, that favors us. The People rarely prepare their cops for the
issues of how the evidence was collected for their prelim. testimony,
even in the wake of the new Penal Code §1538.5(f). And very often
the DAs handling prelims. are of less seniority and experience than
those taking over the case in superior court, so you can usually get
them locked into a factual position from which they cannot extricate
themselves by bringing a §1538.5 at prelim. Moreover, your client
might prefer to be released from custody at the earliest possible time
by resolving the usually clear issue.
Of course, recall that now we cannot bring unnoticed §1538.5
motions at prelims., with the new sub-section (f) of §1538.5, requiring
5 court days written notice. That notice requires a clear statement of
the grounds for the motion and the facts supporting those grounds
and the things sought to be suppressed. Penal Code §1538.5(a)(2).
But then, we are still only permitted to move to suppress that which
the People actually intend to introduce at the prelim. (as distinguished
from everything which was seized), Penal Code §1538.5(f)(1), and only
the People know what was seized and the manner in which it was
seized and what they will try to introduce at the prelim., Cox v.
Superior Court (1993) 19 Cal.App.4th 1046, 1052, so, to the extent
15
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that the new reactionary scheme requires an impossible clairvoyance,
it is void, because “[t]he law never requires impossibilities.” Civil Code
§3531.
There are many arrows in our quiver; they must all be employed
in this battle, or get out of the arena and let others do the fighting.
Faux genteelness in the fight against unprincipled aggression by
constabularial brutes is a prescription for a reign of governmental
thuggery. But I digress.
Of course, in a renewed §1538.5 in the superior court, the
People can “recall” witnesses who testified at the prelim. §1538.5, and
we cannot initially put on any evidence which was available but not
presented by us below, but if the People do put on evidence, the
universe is reopened for us, People v. Hansel (1992) 1 Cal.4th 1211,
1222-1223, a state of affairs the People haven’t quite caught onto yet.
In §995, naturally, there can be no corrective testimony. (Naah,
§995a(b)(1) won’t do it for them, the law properly understood.)
A side-issue of diminishing availability is the common law
objection on 4th Amendment grounds. There are some judges who
recall that we could object to evidence at the prelim. (and elsewhere)
on 4th grounds without that being a “suppression” motion (which has
other and broader connotations)33. The availability of such objections
is quietly recognized in, inter alia, People v. Freeman (1979) 95
Cal.App.3d 917. You need to know your judge well to get away with
that, but I do have one who will permit it (in passing and as a puckish
jab at DAs he doesn’t like), so experiment (carefully) if you like. That
might be an area to re-examine in the wake of the new §1538.5(f)(2),
about which more some other time.
The common law objection on 4th Amendment grounds has
been retained for Penal Code section 991 misdemeanor probable
cause hearings (how many of you have brought/demanded those?),
People v. Ward (1986) 188 Cal.App.3d Supp. 11, 13, and the
discussion therein seems fully applicable to felony preliminary
hearings, now that they are deemed (with doctrinally suspect analysis)
simply glorified Gerstein hearings34, so all might not be lost. Be
33
Indeed, §1538.5 was originally enacted at the behest of the prosecution to
permit regularized and reviewable 4th Amendment attacks, because they had no
remedy against a wrongfully sustained 4th Amendment objection brought on a
§402 basis.
34
See doctrinally challenged pronouncement in Whitman v. Superior Court
(1991) 54 Cal.3d 1063, 1082, that our prelims. are analogous to, and nothing
more than, the probable cause hearing of Gerstein v. Pugh (1975) 420 U.S. 103.
If one understands the Fourth Amendment foundations for Gerstein, one would
never make such an idiotic pronouncement.
16
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careful with that experiment, but you needn’t be as careful as during
the de facto motion days.
When you do have certain critical points which are dispositive of
your suppression issue, touch the relevant matter and move on: if the
cop says that he pulled the car over because of a crack in the
windshield or because of something hanging from the mirror, ask, in a
passing sort of way, “so, you didn’t place your head at the driver’s
vantage point and see if his vision was obstructed or impaired, did
you?” To the quick and testy “No,” pass on; don’t grill further; don’t
take him on; don’t let anyone notice that that is the sole issue on the
stop [VC §26708(a)(2); §26710]; move quickly and quietly on. I have
won several DUI suppression cases by appearing to stress, in the
pleadings, prolonged detention or some such thing, which distracts
the DA and court, while just lightly but sufficiently touching, there and
in the testimony, the ground for the stop.
When it was all over, I politely pointed out that the five hours of
discussion of McGaughran and its progeny were irrelevant35, because
there was no evidence, on the record at issue, of the grounds for the
stop - if it isn’t obstructing vision, windshield cracks and dangling dice
are not illegal! In one celebrated drug transportation case, I wrote (as
a passing preface to the expansive prolonged detention stuff) “the
officer pulled him over because he had a Rosary hanging from the
mirror; Jesus does tend to get in the way of what the cops want to do
these days.” Motion GRANTED! Case, Dismissed!36
Same thing if the grounds for the stop was failure to use a turn
signal: “Now, no other traffic was affected by the turning maneuver,
isn’t that accurate?” To the “Yes [none was affected],” move on,
because the issue has thereby been resolved, and in your favor
[closely read VC §22107].37 Or put on 3rd party witnesses to the scene:
“was there any car around when the defendant made his turn?” The
“No” [which you should know about before you call the witness] ends
the issue, so move on rapidly, without asking the cop the talismanic
question.
So, at the end of the §1538.5 hearing, and, if necessary, in the

35
It is actually not clear that the prolonged detention line of cases fully survives
the new Lago Vista line, and recent cases have expressly suggested that
prolonged detention analysis of the McGaughran sort is no longer apt, but we
need not plumb those depths here.
36
Remember, though, most of the time you want to force an acquittal on the (b)
count, which reverses the APS suspension. See. Helmandollar v. Department of
Motor Vehicles (1992) 7 Cal. App. 4th 52, 57.
37
And VC §22108, the 100 foot rule, is merely a derivative of VC §22107.
17
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§995 pleadings, point out that the grounds for the traffic stop have not
been placed in evidence, which requires you to win. If you are going
to flesh that point out in closing oral argument, however, get a
commitment from your judge that he will not let the People reopen to
compensate for any lesson you are about to teach. I have had too
many clear wins stolen by helpful, “can’t we just all get along” judges
who let the People reopen to patch up the holes I just poked in their
cases with my argument. Now, I closely size up my judge on the
matter and either give expansive argument or remain mum, on the
latter noting that I would happily teach a class to the court or
opposing counsel after the case is over. Indeed, I have politely offered
that many times; there have been, curiously, no takers!
Do not forget Penal Code §1538.5(h): you can make a
suppression motion at trial if you were not aware of the grounds
before trial (or did not have the opportunity to otherwise litigate it). If
a suppression-related subject comes up at trial which does not appear
in the police report (and therefore you couldn’t really know about it
before it came up at trial!/?), you are surprised, and a proper-thinking
judge will let you proceed, out of presence of the jury, with a mid-trial
§1538.5 motion, against the futile angst of the DA. I have won six of
those - not a lot, unless you are one of the six!

4) File a unitary pleading.

When you file pleadings, and you virtually always should38, break
yourselves from the archaic, and really silly, habit of one big-
captioned pleading [“Notice”], with heading, signature, etc., saying
essentially, “we’re going to move to do thus and so, and the reasons
and grounds are to follow in the next pleading,” followed by that next
big-captioned, signed pleading [“Points and Authorities,” or
“memorandum,” whatever] saying, essentially, “that motion we
noticed back and over there is based on the stuff in here.” Put it all in
one pleading. It is a waste of paper and it invites confusion to have
your motion broken up into separate “notice” and “memorandum of

38
Most motions, of course, are required to be in writing. But the things that are
not, in limine objections/motions, Miranda objections, etc., should generally
always be reduced to writing also, because a judge who mulls over things in the
quiet of his chambers is more likely to go with your position than one who is hit
with things on the record and orally. Judges more often than not choose to err
on the side of government, so if you hit them with things about which they cannot
reflect, you are setting yourself up for a loss. In the era of harmless error, most
motions/objections losses handicap defendants without effective remedy.
18
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points and authorities,” or whatever, especially if you are in a court
whose clerk’s office loses things. Makes no sense; don’t do it. Some
think that certain local rules “require” that ponderous procedure; they
are wrong. The filed pleading is “notice,” whether it reads thusly or
simply proceeds with the issues.
And don’t telegraph that you are going to move to do thus and
so in the future; make your pleadings the motion: “We hereby move to
[ ],” not “We shall move, on [date], to [whatever].”

5) Emphasize facts/facts/facts, but only pertinent ones.

Virtually all motions are facts-intensive: the law is fairly well-

established, and law is simply a prediction of what those in power
ultimately will do with a set of facts, so stress the facts, and the law
will follow. And focus on the facts pertinent to the relief you want
from your motion, not all global facts of the event underlying or
reported. One attorney was overheard some time ago stating
something like, “Well, it’s a matter of style: I just don’t like to do facts-
based motions.” Garbage!! Motions are all facts-based; the law is not
the malleable thing here - the facts are!! It’s not a matter of personal
style but of general comprehension about what this is all about.
“Think, Pooh-Bear, think!”
I shuck off the superfluities of the event and home in on the
things that matter - that matter vis-à-vis the relief I want. For
instance, in a police report of 50 pages, if the issue is that the cops
pulled over a car without a warrant and observed therefrom red,
watery eyes, and made other evidentiary collections, that is your
statement of facts. Six lines should be the outside length of one’s
facts statement. Pertinent facts only.
And make your statement of facts just that - your statement of
facts. Don’t parrot and embrace the facts as laid out in the police
report, because (a) that is probably not your version, and (b) that
version is probably sufficient to deny you the relief you seek. Do NOT,
repeat do NOT, attach the police report and make that your statement
of facts! Aside from the fact that bringing the police report to the
court’s attention in these things is illegal(!) [Penal Code section
1204.5], about which I have written passionately and extensively and
successfully, their version (1) contains scads of prejudicial
irrelevancies, which (2) invariably helps them.
Relatedly, don’t concede that which is the People’s counter-rule.
Facts, facts, facts, and your facts, not theirs, and only the
relevant ones.

19
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6) Be brief in moving papers.

One normally need not present a veritable exegesis of the

relevant law to get the relief sought, and getting too wordy can defeat
your mission.
It has been my experience [from now well-over 1,000 motions
wins, and many more total filings] that typical judges generally do not
read more than 7 pages, and their eyes almost always glaze over after
8, so present 4-8 pages in the moving papers. You want to be crisp,
clean, compelling, and concise [the 4 “C’s”].
There will, obviously, be exceptions to that rule, especially with
a tricky, facts-laden §995 motion [where you must be specific and
complete], but keeping brevity as your Polestar will help you focus and
tighten your attack.
I often see those who are showing off instead of desiring and
knowing how to serve their clients, file scores and scores of pages,
with paste and stuck string citations, with different formats in the
same pleading [revealing that they have not authored the pieces but
have raided others’ works], and those sorts of bombasts rarely, if ever
win. You want judges to be interested in reading your stuff, not
wearied by its ponderousness, so be brief. Write a law review article
or letter to the editor if you just want to show off; write to win for your
clients.
You can expand your points, if necessary, in your response to
the People’s opposition (which should virtually always be filed). The
psychological reality of primacy and recency which potentially
prejudices us in the People’s opening and closing arguments in jury
trials can assist us in motions, because we get the opening and closing
attack: when it’s available, capitalize on that which we complain
others employ against us.

7) Be attentive to language.

a) Don’t be stilted. The curious, indeed hilarious, “comes now

the defendant [urging thus and so]” is idiotic: what does that mean?
Don’t use “wherefore” when you mean therefore. Have every word
mean something, and if it means nothing, don’t use it, and use the
ones you use correctly.
b) But be colorful, where appropriate.
c) Do not hesitate to be forceful. If you feel passionate about
your cause, be passionate in its exposition. Do not mince words or
pull punches. If the cops acted like thugs and brigands and employed
jackboots, why would you whitewash it in trying to get the court on
20
Ruminations on Motions
your side? If they aggressively splintered your client’s casement,
aggressively splinter their case with splintering diction.
d) Be clear in what you are seeking.

8) Do not be intimidated by facially intimidating cases (those with

seemingly valid warrants, or with parole or probation search terms, or
where the BAC is .24%, or the like), because it is in those where the
People will get the most cocky - and where they will come the least
prepared, for preliminary hearing or elsewhere. Some of my best wins
have been in facially, apparently hopeless cases.

9) Relatedly, do ground work for your efforts.

Go to the scene of the stop; see what can be seen, and can’t.
Look at the car; look at the windshield crack, or the dangling crucifix,
or the hanging license plate, or the hitch-ball [does it really obstruct?],
or the intersection.

10) Be creative and observant.

For instance, as I would discuss in this presentation more fully if

I had the time, I raise, what I have dubbed a “contingent discovery
motion” in the §1538.5 pleadings in checkpoint stop cases, the
contingency being if the People are invoking Ingersoll standards to
bypass the general requirement of a warrant for seizures, then I want
discovery of just what they were invoking to bypass the warrant
requirement.39 Most times, the DA cannot fathom of what I speak
(because it is not covered in their “auto-brief” motions binder), so
they don’t give it to me, so the court grants my motion to suppress all
of the DUI evidence, the stop being without warrant. Once, the DA
was so distressed he appealed such a ruling, and the appellate
division upheld me - in, unfortunately, an unpublished ruling. Last
week’s appellate win is likewise unpublished. If it were against us, it
would doubtlessly be published!
If you have a suppression issue, before you get all bent out of
shape trying to show “standing” (“legitimate expectation of privacy in
the area searched [or thing seized, sometimes],” or LEPAS), closely
observe the police report. Even if the People want to pose otherwise,

39
Never forget that Penal Code section 1054 notwithstanding, we have a due
process right to discovery, on pain of dismissal, to information necessary to our
mounting an effective 4th Amendment suppression motion. People v. Brophy
(1992) 5 Cal.App.4th 932, 938.
21
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if the cop has recorded the place searched as the defendant’s
“residence” on the appropriate box in the report, or has characterized
the car as “the defendant’s,” or writes “I stopped the vehicle the
defendant was driving,” etc., use that, and that alone. (Interestingly,
even though the term “standing” has been disapproved since Rakas
as the doctrine at issue in 4th Amendment litigation, it was recently
resurrected as the relevant concept when the question is a
passenger’s power to litigate the grounds of the stop of the vehicle in
which he is riding. See Brendlin v. California (2007) 551 U.S. 249, 259
[“standing” is identified as the question there].)
We had a case just the other day wherein (a) there was a bad
search, but (b) the narrative of the police report suggested the
defendant had a very transitory interest in the place searched,
however (c) the place searched was listed as the defendant’s
residence in the booking/police report information. I did not need to
get exercised with Rakas/Jones litigation, etc. I simply inquired of the
cop: “You wrote a report in this matter? Is it complete and accurate?
Would you change anything? In your complete and accurate report
from which you would change nothing, you recorded that [the place
searched] is my client’s residence, is that right?” “Yes.” End of
issue; are they going to pose that their cop either just committed
perjury or previously filed a false police report? Motion granted.
So, there are opposition flames to douse with your creative
juices, and once flowing, they can wash away the adversarial poisons
too many treat as inevitable and debilitating.
If they claim an “inventory” search which turns up things that
hurt your client [open containers, syringes, drugs, guns, whatever], in
addition to the standard approach of ascertaining that there are
established standards for inventory searches [which you should hit
passingly and move on], although grill them on the full scope of the
inventory. I won a big inventory search motion not long ago because I
had the client give me an expansive catalog of things that were in his
car [CDs, radio, tape deck, gloves, camera, paint cans, etc.], whereas
the cop’s so-called “inventory” listed only the criminally significant
stuff. That convinced the judge that this was not an inventory search,
but instead a criminal investigation search merely labeled “inventory,”
so he suppressed everything.

11) Don’t reinvent the wheel, and don’t provide copious citations for
things not in dispute.

I saw a pleading the other day, about 18 mind-numbing pages,

in which the defense attorney, imagining he was answering a Bar
22
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exam question, gave every “standing” citation, every consent citation,
every probation search citation, and every residential search citation
he could think of. I love this stuff, yet that pleading put even me to
sleep. We, and even the most obtuse judge, all know that one has
standing to contest a search of his own residence which he is
occupying, or the car he owns and is driving, etc., and that a warrant
is presumptively required. Don’t bring us up from Jones and Rakas
and Coolidge through the latest cases on the respective points. We
are duly impressed with your industry, but you could have written
three motions in the time it take to supply that irrelevant
development. Same thing on the other points.
You might need to show LEPAS in your moving papers, but you
need not relitigate the matter, usually. For instance, the only LEPAS I
generally supply is contained in my facts statement. “The police
stopped a car they say was owned and being operated by the
defendant. They made observations of his condition, got statements
from him, and arrested him for DUI, incident to which they compelled
a sample of his blood.” That supplies LEPAS (his car that he was
driving), the grounds for the motion (without a warrant = presumptive
unlawfulness), and what is to be suppressed (observations,
statements, blood sample).
You don’t need to reinvent the discussions that developed the
doctrines that apply to all of that.
Where possible, use the results of prior and established
litigations; don’t pretend that the issues are new, because you will
lose the interest of your audience, which should be your sole focus. If
you want to gushingly expand, write an article or letter to the editor.

12) To the extent that it does not prejudice your client, stick together
with other attorneys in their efforts.

For instance, if a witness has been called against a defendant

and has a Fifth Amendment right against certain questioning, and if
you have been appointed to assist that witness with those rights,
don’t try to figure a way to help the DA get the testimony in (unless
the defendant needs it; never if the DA does); sit on your new client’s
right not to testify, unless the People have offered him/her some
appreciable benefit for his/her assistance.
And don’t ask questions that might hurt a co-defendant, if not
helpful to your cause.

13) Prepare, prepare, prepare.

23
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 Prepare your client; prepare your witnesses; prepare your legal
arguments; prepare your writings; prepare your jury instructions;
anticipate the counter-arguments of the government and prepare to
address them. Often, all we have is our Constitution, our superior
abilities, our superior integrity, and our grit to face down the awesome
power of the state, so do not get caught loose-footed from lack of
preparation.

14) Catalogue and emphasize, nit-pickingly, what the defendant did

correctly: immediate response to cop’s lights, controlled stop, no sign
of mental impairment in interactions with cop40, cooperative [if he
was; if he was not, he thereby exhibited good judgment is ascertaining
the cop was trying to collect stuff to support arrest/conviction/etc.],
etc.

15) Rule of averages.

Point out that much of the forensic stuff being fed to the jury on
DUIs is based on averages, especially breath test results, urine test
results, and significance of performance on field sobriety tests:
nothing is particularized to your specific client, which is supposed to
be the sine qua non of liberty infringements under our Constitution.
Indeed, one of the biggest scams going surrounds field sobriety tests.
They are designed for failure, there is no correlation between any of
them and impairment by alcohol, and which of them do you perform
to get your driver’s license? Only that one would be pertinent on the
question of whether it illustrates your driving ability or performance
has been negatively affected, regardless of the cause.

16) Make every effort to win with motions…,

…because no matter how bad your judges might be, you do not want
to leave your clients’ liberties up to a citizenry that is increasingly the
successful focus of national and state government scare tactics about
goblins lurking around all corners. This is no longer the land of the
Founding Fathers, who thought all citizens for all time would
understand that government is inherently evil and hence would
protect us against overweening government when sitting on juries.
The growing welfare state mentality in this Republic has seen a

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And, of course, your expert will testify if there is no mental impairment, there is
no impairment by alcohol. The symptoms being observed, then, would be
related to something other than impairment by alcohol.
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devolution in the independence and wisdom of the polity, who
increasingly look to what they think is a paternalistic government for
help, support, and benign leadership. Citizens do not want to vote
against their government’s positions, because their government is
there to look out for them…, against those bad guys on trial.

Purpose for Motions:

I only file a motion if I believe, from my reading of the cases and

my understanding of the relevant facts, that I have a right to the relief
I seek. Because I have never used the filing of a motion as a device
for obtaining a disposition or a continuance, I maintain credibility with
the courts, the rewards for which are incalculable.

Results from Motions:

1) The stated purpose: the relief sought, depending on the motion.

2) If the People have been unreasonably dilatory is supplying stuff
necessary for the motion, I have gotten high-bail clients
released on OR or greatly reduced bails.
3) Favorable disposition on balance of risks, where DA does not
want to work. I do not file it for that purpose, but I will
sometimes accept an offer one shouldn’t refuse, just in case....
4) Invaluable discovery via the quasi-deposition that comes from
litigating the motion.
5) The aura of scholarly obnoxiousness that sometimes permeates
my attacks keeps the People and their cops and their judges at
bay, yet they all have a grudging respect for my work - at least
those who can read.
6) Because of the bombast and correctness of my attacks, the
court personnel generally hold me in very high esteem, which
makes for a more effective working environment. When bailiffs,
transport-deputies, court reporters, and clerks respect you, your
work is much easier, and a lot more fun, than otherwise.

Closing Thoughts:

We really are at war - a war for the soul of this Republic, and for
the liberty of our citizens. What we see happening in “law
enforcement” these days is not a conservative v. liberal thing, but
rather a police power v. individual liberty contest. What is loosely
labeled “conservative” these days is actually State-ism. The
jackbooted police, and their judicial myrmidons, are not conservative:
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they are Fascistic. They believe not in enforcement of all of the law,
but only in that portion of the law that assists them in their political
turf-building.
It is especially true of DUI, where the bloated penalty
assessments and fees on top of the fine [assessments alone now
running about $1,500 or more] make drunk driving an increasing cash
cow for the system: DUI is very profitable to legions of people and
groups making money off of it, which includes cops, judges, DAs,
probation people, various service providers, etc.
Sadly, the Hun consists of not only the bad guys in black robes
[but not all are bad], and those wearing badges [but not all are bad],
and those mini-Ashcrofts/Gonzalezes who think putting people in jail is
a videogame [and one in which lies and evidence tamperings are not
all that unacceptable] [but not all are bad], but it also increasingly
consists of public defender managers, and defender association
managers, and defense attorneys themselves, all who have learned
that they will be rewarded by the system for suppressing the efforts of
their eager underlings, or who prefer to obtain a piece of the
profitable pie than to join the battle against darkness. There are
personnel and organizations and individuals nominally identified as
“defenders” that are far more aligned with the Hun than with line
defense attorneys, and this system will live to regret that if corrections
are not made, and made soon, and made dramatically.
There is an image in the national psyche that telegraphs most
pointedly the relationship we have with the Huns we oppose, although
the image comes from another land. You’ll recall the single, solitary
soul who stood against the Chinese tanks in Tiannanmen Square some
years ago. It was on the front page of every newspaper and magazine
in the world.
That individual, with his principles and guts and vision about the
long-term dangers of doing otherwise, single-handedly arrested the
movement of the armed governmental Leviathan. That individual is
us, you and me; the tanks are the Hun we daily face down [cops, DAs,
judges, some PD managers and organization heads and private and
public defenders, and some beeping Dump trucks].
I really believe what, and in what, I say and write, and I wear
that belief on my sleeves. And it works: Get thee behind me,
naysayers! And there are many. But that is their problem; don’t
make it yours.
These things can be won, if you only decide to do so and if you
then equip yourself for the task. Why, then, would you do otherwise?
Why, indeed. This is war, so decide to fight it, and aggressively, and
competently, or clear the field. Don’t be like the braying jackass that
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was blocking General Patton’s troops on the bridge, or, as did he,
you’ll get a bullet to the head and be dumped in the drink.

Captain Motion
San Francisco
March 13, 2010

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