San Diego Attorney Explains Criminal Defense Motions

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SAN DIEGO CRIMINAL DEFENSE AND DUI MOTIONS ATTORNEY
A "motion" is a request made to the court, by a party, usually through that party's attorney.  Motions are an important tool for criminal defense attorneys in San Diego.  Motions can be made to have a case dismissed, get evidence thrown out, get property back, get a defendant out of custody and more.  Filing motions also makes the prosecution have to work harder for a conviction, which can be effective in obtaining a better plea negotiation.  Discuss your case with a San Diego Criminal defense attorney and identify which motions will be most helpful to your case.

PC 995 MOTION TO DISMISS
After a preliminary hearing, if the defendant is held to answer to the charges, but the government has not really put forward enough evidence to justify that action, the defense will file a 995 motion.  This motion seeks a dismissal from the trial court.  Essentially, it is like an appeal of the preliminary hearing judge's decision not to dismiss the case.  If the preliminary hearing transcript and exhibits do not show enough evidence for probable cause, your San Diego Criminal Defense Attorney should file a 995 motion and ask the trial judge to dismiss your case for a lack of evidence against you.

PC 1538.5 MOTION TO SUPPRESS EVIDENCE
Perhaps the most important motion in criminal defense cases, particularly in possession offenses or cases where a confession was made prior to the reading of Miranda rights.  Pursuant to Penal Code section 1538.5, criminal defense attorneys can have unlawfully obtained evidence thrown out of court.  Most frequently, these motions are used when a search was conducted in violation of a defendant's fourth amendment rights.  Motions to suppress are very common in DUI cases, drug crimes, weapon offenses and more.  More information about motions to suppress.

EC 402 MOTIONS (MOTIONS IN LIMINE)
Just before trial in a criminal case, the defense and prosecution will argue over the admissibility of some evidence, presence of witnesses and other spectators in the courtroom, and more details regarding the trial.  Some of the issues to be decided could include: whether a defendant's statements or prior criminal history will be admissible, whether to allow particular expert or lay witness testimony and more.  In liming motions are usually done on the day of or day before the jury is selected.

PC 1318 MOTION FOR OWN RECOGNIZANCE RELEASE OR FOR BAIL REDUCTION
Despite the "innocent until proven guilty" ideal we are taught from a young age, the unfortunate reality is that many people are held in custody until the disposition of their criminal case in our criminal justice system.  The court will typically set bail, whereby a criminal defendant may post a bond and then be released during the progression of the case.  It is also possible to make a motion to have the bail reduced or the defendant released on his or her own recognizance (O.R.).  The arguments in support of the motion are that the defendant is not a flight risk or a danger to the community.

PITCHESS MOTION
Pitchess Motion is a motion (usually by the defense) to get access to a law enforcement officer's personnel and discipline files.  If the defendant believes that the officer used excessive force or lied about facts, it might be possible to access records and later impeach the officer when testifying.  If the officer has a long list of complaints, the prosecution may go as far as to dismiss the case or offer a better deal.  A Pitchess motion, therefore, can be an important tool for criminal defense attorneys both as a tool for trial and other hearings and as leverage in plea negotiations.

PC 1054 FORMAL DISCOVERY MOTION
Discovery is the process of the parties turning over evidence to the other side.  In criminal cases, most discovery is handled informally and governed by PC 1054.  The prosecution will usually turn over police reports and the defendant's criminal history at arraignment.  Next, the defense usually makes a request for specific evidence not turned over right away.  Additional discovery may consist of: video evidence, pictures, recordings of interview, 911 calls, and more.  While there is not always opposition to disclosure of discovery, the law enforcement agency and prosecuting attorney.  In these cases, the defense must make a formal motion to compel discovery.  If granted, the Judge will order the DA to turn over the requested evidence.

MOTION FOR RETURN OF PROPERTY
Usually filed after a case has concluded and property held in evidence can no longer be justifiably held as evidence, a motion for return of property is often the only way to recover some of your property taken by the police during an arrest or during a search warrant.  Returned property can include electronics, cash, passports/ID, legally possessed medical marijuana and more.

MOTION TO WITHDRAW PLEA
If a person enters a plea that is not free and voluntary, it may be possible to withdraw the plea and reinstate the proceedings.  A guilty plea may be withdrawn upon a showing a good cause and a timely motion.

MOTION TO DISCLOSE CONFIDENTIAL INFORMANT ("CI")
Sometimes the police and/or prosecution will attempt to keep a witness' identity from the defense.  While the statements of a CI will typically not be admissible as evidence, the CI's statements are often used to obtain search or arrest warrants. Knowing the identity of a CI can help with defense investigation and trial strategy.

MOTION FOR APPOINTMENT OF EXPERT WITNESS
When a defendant needs an expert witness or an investigator in order to establish their defense, the defendant is entitled not only to have such an expert appointed, but also for the government to pay the fees.  

KELLETT MOTION / DOUBLE JEOPARDY
"Double jeopardy" is a familiar concept to most people, but it is a little bit more complex than people realize.  On the one hand, there are exceptions like mistrials/hung juries.  On the other hand, double jeopardy can apply not only to the same charges, but also to new charges that were or could reasonably have been discovered prior to the filing of the earlier case.  An example of this would be if a defendant is arrested for driving on a suspended license, and it is later discovered that the vehicle was stolen.  If the suspended license case is finished before the auto theft case is filed, there may be a strong argument to dismiss the grand theft auto charge.

SERNA MOTION / DOGGETT MOTION
If the prosecution makes an unreasonable delay in bringing a defendant to trial or filing their case, it may be possible to get the case dismissed.  In misdemeanor cases, a Serna motion will likely result in a dismissal for cases 

TROMBETTA MOTION
If the government loses or destroys some potentially favorable defense evidence, a Trombetta motion may be filed to seek a dismissal of the case.  Finding out that the government lost or destroyed evidence is not easy, but in the cases where it does happen, it can be good news for defendants.

BLOOD SPLIT MOTION
In DUI cases involving blood testing, the government must follow very specific guidelines for drawing, testing, preserving and storing the blood sample.  The lab must not only preserve the sample prior to testing, but also retain sufficient sample to be re-tested by the defense upon request.  Re-testing for BAC can help to demonstrate the variation and the inaccuracy of the test, especially LA County's single-column chromatography technology.  Additionally, the re-testing can show that the sample was not properly preserved or stored, calling into question the reliability and competence of the lab.  Improper storage (temperature too high or low), stress on the blood and bacterial contamination can cause hemolysis, which indicates an unreliable sample.


If you or a loved one has been arrested or charged with a crime, know that there are many facets to a complete, thorough defense.  Motions are an important part of criminal defense, and are an important consideration when crafting your defense strategy.  Contact us now for a Free Consultation with a San Diego Criminal Defense Lawyer.

Nicholas M. Loncar, Esq.
San Diego Criminal Defense Attorney
San Diego DUI Lawyer

www.iDefendSanDiego.com
619-930-9515

By Nicholas Loncar
 


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