Library of Motions – Motion To Suppress

TO THE HONORABLE JUDGE OF SAID COURT:

Defendant files this Motion to Suppress pursuant to the Fifth and Fourteenth Amendments to the United States Constitution, Article 1, §§ 10, 13, 19; and Rules 102, 403, 702, 705 Rules of Evidence as follows:

Defendant was arrested without a warrant and without probable cause to arrest. The results of all tests taken after his arrest were fruits of an illegal arrest which were obtained in violation of the United States Constitution, Amendment IV and in violation of Art. I of the Texas Constitution. The results of the tests should be suppressed.

§49.01, et seq., Tex. Pen. Code which defines the offense of driving while intoxicated requires the State to prove the defendant’s physiological condition while he was in actual physical control of a motor vehicle.

Under Rule 702, Tex. Rules Evid., any expert opinion concerning the results of the tests attempting to relate those results to Mr. (Client name)’s physiological condition at some time prior constitutes an unreliable scientific technique under the facts of (Client Name)’s case because the expert witness in this case has no underlying data upon which to base an opinion concerning retrograde extrapolation. Mata v. State, 46 S.W.3d 902 (Tex.Cr.App. 2001). Consequently, “retrograde extrapolation” of the results of the breath test is not admissible, and it is a proper subject in a pretrial motion to suppress. Id.

Under rule 403, Fed. Rules Evid. any expert opinion concerning the results of the tests relating to those relating to (client’s name) physiological condition at some time prior have limited relevance to the offense herein. The results simply because they are “scientific” will cause a fact finder to convict where that fact finder might otherwise not convict without the unreliable scientific evidence. Additionally, the breath test results themselves have very little probity because of the defective procedures utilized in obtaining the breath test result. Neither the subject test nor the reference sample device were kept at a known temperature as required by Texas Breath Alcohol Testing Regulations, Tex. Admin. Code Sec. 19.3(c). Thus, the substantial prejudicial effect of those results outweigh the probative value of the results on the issue of whether Defendant committed the offense charged.

WHEREFORE, Defendant prays that the Court will set this matter down for a hearing, and upon hearing order that:

1. any and all evidence obtained as fruits of an illegal arrest be suppressed;
2. the results and any opinion concerning those results as they related to (client’s name) earlier physiological condition be suppressed; and
3. the breath test results be suppressed.

I, the undersigned, hereby certify that a true and correct copy of the foregoing Motion to Suppress was forwarded to Mr. Bill Hill, District Attorney, Frank Crowley Courts Building, 133 North Industrial Boulevard, Dallas, Texas 75207, on this the _______ day of ________________ 2002.

ON THIS the ________ day of __________, 200___ came on to be heard the foregoing Motion to Suppress, and same is hereby GRANTED/DENIED, to which action Defendant excepted.