Colorado DUI Laws - DUI Attorney Motion to Suppress a DUI Arrest
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Here's a sample Motion to Suppress a Colorado DUI Arrest that Colorado DUI Attorney Chris Cessna Uses to defend Colorado Drunk Driving Cases:
MOTION TO SUPPRESS COLORADO DUI ARREST
COMES NOW, the Defendant, B.A.B., by and through the Law Office of Christopher Hunter Cessna, LLC., and through his attorney, Christopher Hunter Cessna, and pursuant to Rule 41(g) of the Colorado Rules of Criminal Procedure, respectfully requests that this Honorable Court suppress any and all statements alleged to have been made by Defendant, and all evidence obtained thereafter, including field sobriety tests and breath test results due to lack of probable cause and as fruits of the poisonous tree. As grounds therefore, the Defendant states as follows:
FACTUAL BACKGROUND
6353 W. Burgundy Place
1. On July 18, 2004 at approximately 1:55 a.m., a witness called 911 and reported that a "light" colored vehicle had just hit a parked vehicle and left the scene.
2. Minutes later a second witness advised police that a "dark" green Chevy Blazer with license plate number: 459-JKL had just driven by the scene with damage to the left front side.
3. No witness could provide police with an identification of who was driving or how many people were inside any of the vehicles described to police.
XXXX W. Brittany Place
4. At 2:20 hours, Jefferson County Deputy, Troy Betka located a dark colored Chevy Blazer in a residential driveway and ran the license plate. Deputy Betka noticed front-end damage to this Blazer.
5. Deputy Betka knocked on the residence door. A short while later, the defendant, B.A.B. opened the door. B.A.B. was only dressed in his underwear when he answered the door.
6. Upon request, B.A.B. stepped out onto the front porch. Upon being questioned about the accident, B.A.B. informed the deputy that he had been home asleep for the past two hours. He also advised Deputy Betka that he had been at a party earlier that evening, but asked a friend to drive his vehicle home because he'd been drinking.
7. Deputy Betka then asked B.A.B. to come look at the vehicle in the driveway. At this point, B.A.B.'s mother was in the doorway with B.A.B. and the deputy. Mrs. B. told B.A.B. to get some clothes on before going into the driveway. When B.A.B. tried to step back inside his house to get some clothes, Deputy Betka grabbed B.A.B. by the wrist and placed him under arrest by handcuffing him. Deputy Betka then placed B.A.B. inside a locked patrol vehicle while wearing nothing but his underwear.
8. Both Mr. and Mrs. B. went outside to find Deputies Betka and O'Leary questioning B.A.B. through an open patrol car door. They then closed the door and advised Mr. and Mrs. B. that B.A.B. was still "not telling the truth."
9. Mr. and Mrs. B. were then approached by Deputy Betka and Deputy O'Leary. The deputies then advised Mr. and Mrs. B. that if B.A.B. confessed, it would make the difference of him going to jail or getting released to his parents and going back into the house.
10. The deputies then took the B.s to the patrol car to get BA.B. to admit to driving. When they opened the door, B.A.B. was crying and convulsing in tears. B.A.B. told his parents that he was not driving, nor did he strike another vehicle.
11. The deputies then slammed the door and again began to convince both Mr. and Mrs. B. that it was in B.A.B.'s best interest to get him to confess. The deputies told B.A.B.s parents that if he confessed B.A.B. would not have to go to jail. The deputies made other promises of lenient behavior in exchange for a confession.
12. No deputy or trooper, at any time ever provided B.A.B. with his Miranda warnings.
13. The B's went to the patrol car once again; this time got their son to confess with the promise of lenient treatment for their son. After speaking to their son and telling him about the promises made by the deputies, B.A.B. incriminated himself. The B's then advised Deputy Betka that they believed that B.A.B. had been driving and had hit the vehicle.
14. Deputies then let B.A.B.'s mother get him some clothes. B.A.B. was then allowed to cover himself after confessing.
15. State Trooper, Eidenmueller then arrived on scene. Without reading B.A.B. his Miranda warnings, Trooper Eidenmueller began to question BA.B. who was still handcuffed and in custody inside the locked patrol car. B.A.B. told Trooper Eidenmueller, "Yes, I crashed into a car and I was driving."
16. Officers also made additional promises to B.A.B. in order to get him to complete both field sobriety tests and a breath test.
17. Before performing theroadside sobriety tests, B.A.B. asked the deputies and the trooper to allow him to go to the bathroom. Officers refused to let him use his own bathroom. B.A.B. continued to beg officers to allow him to use the bathroom after completing the roadsides. The officers advised him that they didn't care because they didn't have to clean it up. During the 10-15 minute drive to the jail, B.A.B. had no choice and urinated himself inside the patrol car.
CASELAW
18. Warrantless arrests must be accompanied by probable cause or exigent circumstances. Beck v. Ohio, 379 U.S. 471 (1963); People v. Schreyer, 640 P.2d 1147 (Colo. 1982). Probable cause is defined as facts available to a reasonably cautious officer which would warrant a belief that an offense has been or was being committed. People v. Navran, 483 P.2d 228 (Colo. 1971).
19. Colorado Revised Statute 42-4-1301, requires probable cause that a person who was under the influence or impaired by the use of alcohol, drugs or both to be in "actual physical control" of a vehicle before he can be arrested for DUI or DWAI. People v. Swain, 959 P.2d 426 (Colo.1998).
20. In 1968, the United States Supreme Court held that a person is seized, and Fourth Amendment protections apply "when an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Terry, 392 U.S. 1, 19 n. 16 (1968).
21. Roadside sobriety testing constitutes a full "search" in the constitutional sense of that term and therefore must be supported by probable cause. People v. Carlson, 677 P.2d 310 (Colo.1984).
22. Once seized, statements made during custodial interrogation are admissible only if the person making them has already been properly advised concerning his right to remain silent and his right to have a lawyer, and if he has made a voluntary, knowing and intelligent waiver of those rights. Miranda v. Arizona, 384 U.S. 436, 444 (1966). Furthermore, interrogation has not been limited to express questioning, but also includes its functional equivalent. It has been characterized as "any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. People v. Rivas, 13 P.3d 315 (Colo.2000). Practices identified as the "functional equivalent" of interrogation generally employ compelling influences or psychological ploys in tandem with police custody to obtain confessions. Id.
23. The due process clause of the Fifth Amendment dictates that a defendant's statement obtained by police is not admissible for any purpose unless it is voluntary. Mincey v. Arizona, 437 U.S. 385 (1978). To be deemed voluntary a statement must be "the product of an essentially free and unconstrained choice by it's maker" uninfluenced by coercive police conduct. Colorado v. Connelly, 479 U.S. 157 (1986). A statement is deemed involuntary when the existence of coercive governmental conduct, whether mental or physical, plays a significant role in inducing the statement. People v. Valdez, 969 P.2d 208 (Colo.1998).
24. "Coercion" may exist where police overreach by exploiting a weakness or condition known to exist. United States v. Guerro, 983 F.2d 1001, 1004 (10th Cir. 1993). For example, a police officer's threat to jail the defendant was a proper factor for a court to consider in determining the voluntariness of a statement. People v.Corley, 698 P.2d 1336 (Colo.1985).
25. In People v. Quintana, the local sheriff requested that a burglary suspect make a inculpatory statement. The defendant refused. Later, the defendant's wife came to visit him at the jail. The sheriff and under-sheriff encouraged the defendant's wife to persuade the defendant "to tell the truth" because it would be easier on his family and on him if he did. The defendant's wife agreed and subsequently talked alone with her husband. After the defendant's wife left the jail, the defendant made inculpatory statements, first to the sheriff and then to his deputy. People v. Quintana, 601 P.2d 350, 198 Colo. 461, No. 79SA259, 1979.CO.40112, 14 (versuslaw.com).
26. The Court also found that the sheriff and his deputy had made implied promises and inducements if the defendant confessed. One such promise guaranteed that the defendant would be released from custody that day if he confessed. Id. at 16.
27. In affirming the earlier suppression order, the Colorado Supreme Court held that the confession was involuntary where the defendant was encouraged to give a statement to police because doing so would be easier on his family. Id. at 18.
28. Furthermore, constitutional violations resulting in the exclusion of evidence generally do not apply to evidence obtained by private parties or evidence resulting from the conduct of private parties. An exception to this rule exists when private persons become agents of the police by virtue of their suggestion, order, request, or participation for the purposes of a criminal investigation. People v. Lopez, 946 P.2d 478 (Colo.App.1997). The test as to whether a private citizen has acted as an agent of the police for the purposes of criminal investigations is whether the person "in light of all the circumstances of the case, must be regarded as having acted as an instrument or agent of the state. Id.; Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971); People v. Holmberg, 992 P.2d 705 (Colo.App.1999).
29. In conclusion, all confessions, observations and evidence obtained as a result of an unconstitutional detention and seizure must be suppressed as tainted by the illegal action of law enforcement officers. Wong Sun v. United States, 371 U.S. 471 (1963); People v. Hopkins, 774 P.2d 849 (Colo. 1989); People v. Winpigler, 8 P.3d 439 (Colo.1999).
ARGUMENT
30. Any statements made to police by B.A.B. should be suppressed on two grounds. First, as the fruits of the poisonous tree due to lack of probable cause to arrest. Because there was no eye-witness who could identify a driver, deputies lacked sufficient facts which would warrant a reasonable belief that B.A.B. had committed the offense so as to justify the officer's seizure of B.A.B., after he had denied driving and provided a reasonable explanation that a friend had been driving his vehicle instead. Any subsequent statements made to police were fruit of an illegal arrest and should be suppressed as such.
31. Second, once the deputy seized B.A.B. by grabbing his wrist, pulling him from his house, handcuffing him and placing him in the back of a locked patrol vehicle, B.A.B. was without dispute, in custody for purposes of Miranda. No deputy or state patrol trooper ever read B.A.B. his Miranda warnings at any time that evening. Yet they conducted custodial interrogations of B.A.B while B.A.B. was outside his house wearing only his underwear and handcuffs. When B.A.B. refused to confess, deputies enlisted B.A.B.'s frightened and unwitting parents as agents of the state through their suggestions, requests, inducements and promises of leniency for the purposes of their criminal investigation. This questioning of B.A.B. by his very own parents was the functional equivalent of express questioning by the police themselves. In fact, the entire incident is eerily reminiscent of the facts and police conduct described above in People v. Quintana.
32. Therefore, none of the statements made to B.A.B.'s parents or law enforcement officers were voluntary, and all such statements were obtained in violation of Miranda and are inadmissible at trial.
33. Any and all observations of roadside sobriety tests should be suppressed as the fruits of an illegal arrest due to lack of probable cause and in violation of People v. Carlson. Once seized, arrested, and subject to interrogation, B.A.B. was unable to make a voluntary choice to either perform roadside tests or to refuse such testing. Because the officers did not have probable cause to suspect that B.A.B. had been in "actual physical control" of the vehicle, their request or order for B.A.B. to conduct roadside tests was a constitutional violation and rendered such observations as inadmissible.
34. Any and all results of breath tests from either the PBT or the Intoxilyzer 5000 should be suppressed as the fruits of an illegal arrest due to lack of probable cause. Because the officers did not have probable cause to suspect that B.A.B. had been in "actual physical control" of the vehicle, their request or order for B.A.B. to complete such testing and the results thereof constitutes a constitutional violation and renders such results and observations as inadmissible at trial.
35. In conclusion, all confessions, observations and evidence obtained as a result of the unconstitutional seizure and interrogation of B.A.B. must be suppressed as the tainted fruit of the illegal actions of law enforcement officers.
WHEREFORE, the Defendant respectfully requests this Honorable Court for an Order suppressing any and all statements alleged to have been made by the Defendant, and all evidence obtained thereafter, including field sobriety tests and breath test results due to lack of probable cause and as fruits of the poisonous tree.
Respectfully submitted,
_______________________________
Christopher Hunter Cessna, #31702
Attorney for Defendant
5400 Ward Road
Bldg. V, Suite 200
Arvada, Colorado 80002
Telephone: 800-DIAL-DUI
ORDER: MOTION TO SUPPRESS
THIS MATTER having come before the Court on the Attorney's MOTION TO SUPPRESS, the Court hereby:
[ ] Grant's Attorney's motion.
[ ] Denies Attorney's motion.
[ ] Sets the Attorney's motion for a hearing on the _______ th day of ______________ , 2004, at ______________ .
DONE this _______ day of ____________________, 2004.
BY THE COURT:
_________________________________
County Court Judge
CALL 1-800-DIAL-DUI (Areas 303 and 720) NOW TO TALK TO COLORADO DUI ATTORNEY CHRIS CESSNA
OR:
Christopher H. Cessna
5400 Ward Road
Bldg. V, Suite 200
Arvada, Colorado 80002
1-800-DIAL-DUI (area codes 303 and 720)
COLORADO DUI DENVER COURTHOUSE INFORMATION
Jefferson http://www.courts.state.co.us/district/01st/dist01.htm
Adams http://www.courts.state.co.us/district/17th/17dist.htm
Broomfield: http://www.courts.state.co.us/district/17th/17dist.htm
Denver http://www.courts.state.co.us/district/02nd/02dist.htm
Arapahoe http://www.courts.state.co.us/district/18th/18dist.htm
Douglas http://www.courts.state.co.us/district/18th/18dist.htm
Gilpin http://www.courts.state.co.us/district/01st/dist01.htm
Boulder http://www.courts.state.co.us/district/20th/20dist.htm
Weld http://www.courts.state.co.us/district/19th/19dist.htm
Elbert http://www.courts.state.co.us/district/18th/18dist.htm
Counties: Jefferson, Adams, Denver, Arapahoe, Broomfield, Douglas, Gilpin, Boulder, Weld, Elbert
Cities: Denver, Golden, Brighton, Littleton, Aurora, Centennial, Broomfield, Castle Rock, Boulder, Greeley, Black Hawk
The most common acronyms for drunk driving in Colorado are:
DUI or Driving Under the Influence, 42-4-1301
DUI per Se or Driving with Excessive Alcohol Content, 42-4-1301
DWAI or Driving While Ability Impaired 42-4-1301
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