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DUI LIBRARY | Pretrial Motions


Pretrial Motions


The Expelliarmus spell is the Disarming spell; it knocks the victim's weapon (usually a wand) out of his/her hands. It can also be used to knock other
items out of the target's hands, but we
seldom see this use. When it is performed
with more power, one can blast the
opponent off their feet.

Pretrial Motions Arizona DUI

–Muggles’ Guide to Harry Potter

It’s always better to win without having to fight the battle…or pick a jury.  Pretrial motions are one of the primary tools to achieve this goal.  But not necessarily for the reasons, you may think.

Multiple Purposes of Motions

These motions should always have more than one purpose.  The obvious one is to have a judge grant you your motion and win the case.  However, in the current legal environment, judges tend to deny most motions seeking to suppress the government essential evidence or dismiss an entire case. Accordingly, the less obvious purposes become even more important. 

Those purposes being:

  • Creating leverage; and
  • Weakening the government’s case at trial. 

Even when denied (whether in whole or in part) a pretrial motion can still help disarm your opponent at trial.  Even if you don’t have a magic wand.

Take a Drug DUI Example.

Here’s the scenario. The accused is charged with DUI.  The charge is based on impairment from prescribed medication.  Keep in mind that Arizona has no per se limit for a drug in a person’s system; and the results of any drug test are not capable of determining impairment.  Under the circumstances of a DUI investigation, how do the police determine impairment?

Unless there is an admission as to the time of consumption it’s unlikely there is any practical, or scientifically valid, method to determine impairment.  However, that will not prevent the police from claiming they did.

An officer claiming to be an expert will do a self-titled Drug Recognition Evaluation.  The “DRE” officer does a series of tests and concludes impaired by a narcotic analgesic and the person was unable to safely operate a vehicle…to be continued.

Rules for Substantive Motions

(b) Pretrial Motions. All motions must meet the requirements of Rules 1.6 and 1.9 and be served as provided in Rule 1.7. Parties must make all motions no later than 20 days before trial, except that lack of jurisdiction may be raised at any time. Responsive pleadings are allowed as provided in Rule 1.9. The court may modify motion deadlines.

Ariz. R. Crim. P. 16.1

(a) Definition. For purposes of this rule, “suppress” refers to the exclusion of evidence that was unlawfully obtained due to a constitutional violation.
Ariz. R. Crim. P. 16.2

  • State v. Rodriguez,  126 Ariz. 28, 612 P.2d 484 (1980).  A motion “in limine” meaning “on or at the threshold;  at the very beginning;  preliminarily”, is not provided for by name in either criminal or civil rules of procedure, but the motion is frequently used to exclude anticipated prejudicial evidence before the evidence is actually offered by the opposing party.  
  • State v. Superior Court of State of Ariz., In and For Pima County, 128 Ariz. 583, 627 P.2d 1081 (1981).  In criminal cases, a motion in limine is treated as a motion to suppress, and the ruling of the trial court will not be disturbed on appeal absent a clear abuse of discretion.

Important Consideration: 

A defendant may testify in support of a motion to suppress and his testimony cannot be admitted as evidence of guilt at trial

State v. Nadler, 129 Ariz. 19, 628 P.2d 56 (App. 1981).

Burden of Proof
Under Rule 16.2 of the Arizona Rules of Criminal Procedure, the State has the burden of proving by a preponderance of the evidence the lawfulness in all respects of the acquisition of all evidence that the State will use at trial.
The Rule provides the Defendant’s Burden: 
If any of the conditions listed below are present, the State’s burden of proof under (b)(1) arises only after the defendant alleges specific circumstances and establishes a prima facie case supporting the suppression of the evidence at issue:
(A) the evidence involves a confession, identification, search, or seizure, and the defendant is entitled under Rule 15 to discover how the evidence was obtained;
(B) defense counsel was present when the evidence was taken; or
(C) the evidence was obtained under a warrant.
Ariz. R. Crim. P. 16.2

Burden of going forward” requires the party that bears it to produce sufficient preliminary evidence before the party with the burden of persuasion must proceed with its evidence, and failure to meet the burden of going forward results in an adverse ruling before the presentation of evidence by a party with the burden of persuasion.

State v. Hyde, 186 Ariz. 252, 921 P.2d 655 (1996) certiorari denied 117 S.Ct. 1091, 519 U.S. 1153, 137 L.Ed.2d 224. 

Once a defendant establishes that evidence was seized pursuant to a warrantless search they have satisfied their burden of going forward on a motion to suppress.  Consequently, this triggers the government’s burden of proving the lawfulness of the acquisition of the challenged evidence.

Rodriguez v. Arellano, 194 Ariz. 211, 979 P.2d 539 (App. 1999).

Defendant filed a motion to suppress statements and several other motions. The court found none the motions were supported by sufficient factual allegations to support a voluntariness challenge.

State v. Anaya, 170 Ariz. 436, 825 P.2d 961, review denied (App. 1991).

The Response
The party filing the motion “must serve the motion on all other parties.” Ariz. R. Crim. P. 1.9
Time for Filing Response:
No later than 10 days after service, another party may file and serve a response
Effect of Not  Responding:
If no response is filed, the court may deem the motion submitted on the record.
The Reply
Time for Filing A Reply:
No later than 3 days after service of a response, the moving party may file and serve a reply.
Scope of Reply:
A reply must be directed only to matters raised in a response.
Length of Motions

Motions & Responses May Not Exceed:

Unless the court orders otherwise, a motion or response, including a supporting memorandum, may not exceed 11 pages, exclusive of attachments.

Replies May Not Exceed:

A reply may not exceed 6 pages, exclusive of attachments.

Ariz. R. Crim. P. 1.9

Oral Argument

On a party’s request or on its own, the court may set a motion for argument or hearing.

Ariz. R. Crim. P. 1.9(e)

Proposed Orders

A proposed order “must” be prepared as a separate document and may not be included as part of a motion, stipulation, or other document.  Additional requirement of a motion are:

  • There must be at least two lines of text on the signature page of a proposed order.
  • A party must serve the proposed order on the court and all other parties.
  • A party must not file a proposed order, and the court will not docket it, until a judge has reviewed and signed it.

Absent a notice of filing, proposed orders will not be part of the record.

Ariz. R. Crim. P. 1.9(f)

Technical Violations

What happens if there is a procedural violation?

Legal precedent holds that evidence should rarely be excluded for violations of procedural violations. In the civil case of Allstate Ins. Co. v. O’Toole, 182 Ariz. 284, 287 (1995), the Arizona Supreme Court has stated “[w]henever possible, procedural rules should be interpreted to maximize the likelihood of a decision on the merits.”  

In addition, the Arizona Constitution warnings against deciding cases on “technical error in pleadings.” It provides court must do “substantial justice.”

Section 27. Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall
declare the law. No cause shall be reversed for technical error in pleadings or proceedings when upon the whole case it shall appear that substantial justice has been done.

Ariz. Const. art. 6, § 27. Tweet
The holding of State v. Rodriguez by the Arizona Supreme Court

In 1980, the Arizona Supreme Court has held that a “motion in limine,” is not provided for by name in either the criminal or civil rules of procedure. State v. Rodriguez, 126 Ariz. 28, 30, 612 P.2d 484, 486 (1980).

Accordingly, the Court ruled that a motion by a defendant to preclude the introduction his juvenile record as a motion to suppress under Rule 16.2 of the Arizona Rules of Criminal Procedure.

Keep in mind that the Arizona Supreme Court decided Rodriguez in 1980.  However, the ruling under review occurred years earlier – prior to September 1, 1977 which was the  effective date of the amended Rules of Evidence.

The current Rules

Subsequently, new Rule 16.2(a) of the Arizona Rules of Criminal Procedure specifically states that “suppress” refers to the exclusion of evidence that was unlawfully obtained due to a constitutional violation. Consequently, the holding of Rodriguez no longer applies to motions to precluded evidence – if the reasons is other than a violation of a constitutional right.

The present version of the Rules of Evidence now specifically address what is contemplated by a motion in limine.

  • Rules 103(d) and 104(c) provide that the proceedings shall be conducted to the extent practicable out of the presence of the jurors so as to prevent inadmissible evidence from being suggested to the jurors.
  • Rule 104(a) provides that the trial court is to rule on the admissibility of evidence.
The holding of State v. Tovar by the Arizona Court of Appeals

The Arizona Court of Appeals in State v. Tovar has held a motion in limine is a motion to suppress requiring that it must be made 20 days prior to trial (as required by Rule 16.1(b).  State v. Tovar, 128 Ariz. 551, 554–55, 627 P.2d 702, 705–06 (Ct. App. 1980).

However, the court held that because the above motion for pretrial ruling on admissibility of evidence would be made pursuant to the Rules of Evidence rather than the Rules of Criminal Procedure, the 20-day time limit of Rule 16.1(b) of the Arizona Rules of Criminal Procedure would not apply.

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