NO. **********

STATE OF TEXAS	§	IN THE COUNTY CRIMINAL	
	§		
vs.	§	COURT OF LAW NO. **	
	§		
****************	§	HARRIS COUNTY, TEXAS	

MOTION TO SUPPRESS 
Evidence of Drugs in DWI Prosecution
TO THE HONORABLE JUDGE OF SAID COURT:
	INTO COURT comes the Defendant, **************, by and through his undersigned counsel, and respectfully moves this Honorable Court to hold a hearing on this Motion prior to trial and outside the presence of the jury and thereafter suppress and exclude from introduction at trial any and all evidence of the presence of drugs on or about the person of Defendant in this DWI criminal prosecution which would be in violation of the Defendant's rights as guaranteed him under both the Federal and State Constitutions and under State Statutes.  In support thereof the Accused would show:
I.	Factual Background
	SAMPLE SET OF FACTS***********On August 23, 2016 at approximately 8:32 pm, Defendant was traveling to get dinner from his house when he side swiped a broken-down, abandoned truck in the 2000 block of Vermont Street, Harris County, Houston, Texas.  Although very upset, Defendant waited for the police and met with Houston Police Department (HPD) Officer Romo.  Officer Romo states in the Offense report that he smelled a mild odor of alcohol, heard slurred speech and observed stumbling from the Defendant.  At one point, Officer Romo felt Defendant was aggressive and immediately detained him inside his patrol vehicle.
	HPD Officer Roy met with Officer Romo on scene.  Officer Roy then met with Defendant and noticed a mild odor of alcohol, glassy eyes, and a slight sway.  Defendant admitted to consuming two glasses of wine.  Defendant admitted to taking medication for his diabetes and high blood pressure the night before.  Defendant also admitted to suffering from gout and taking medication for it, but no time of ingestion was noted.  Officer Roy performed the HGN test on Defendant and received 6 clues.  Defendant was then transported to Central Intox for further testing. 
	At Central Intox, Defendant refused any further testing.  Officer Roy read Defendant the DIC-24 form and Defendant refused to provide a breath and blood sample.  Officer Roy drafted an affidavit for a search warrant at 11:20 p.m.  In that affidavit, Officer Roy only typed in “alcohol” as the cause of intoxication.  A search warrant was obtained at 11:32 p.m. and Defendant’s blood was drawn at 11:40 p.m.
	Defendant’s blood alcohol content came back at 0.07 g/100ml, below the legal limit for intoxication in Texas.  Defendant’s blood was sent off for additional drug testing.  The Toxicology report from NMS on November 30, 2016 showed an ethanol level of 0.066 g/100ml, Alprozalam 49 ng/ml, cocaethylene 25 ng/ml, and benzoylecgonine 780 ng/ml.
	It is undisputed in this case that neither Officers Romo nor Roy conducted a Drug Recognition Evaluation (DRE) of Defendant.  Furthermore, neither officer is certified to determine intoxication via a controlled substance or medication as neither is a Drug Recognition Expert.  And lastly, there is no evidence of any pills or illegal drugs in the car or on Defendant’s person, or any admission or questioning surrounding drugs, medication, dosage, time of ingestion, method of ingestion, frequency of ingestion, or any half life of such.	*******
II.	Defendant Requests a Hearing Outside of the Presence of the Jury
	The requested hearing is required by the Texas Code of Criminal Procedure.  Tex. C.C.P. Arts. 28.0l(6).  A hearing outside the presence of the jury is necessary in order to keep the jury from being prejudiced by inadmissible evidence.  Such prejudice would result in the Accused being denied his right to a fair trial.  U.S. Const. Amends.  VI and XIV §2; Tex. Const. Art. l §§l0, l5 & l9; Tex.CodeCrim.Proc., Art. l.04, l.05 and l.l2.  Jackson v. Denno, 378 U.S. 368 (l964); Reed v. State, 5l7 S.W.2d 8l7 (Tex.Crim.App. l975).  A hearing is also necessary to adequately protect the Accused's right to be free from compulsory self‑incrimination and to insure that any evidence sought to be admitted is not the fruit of a primary illegality.  U.S. Const. Amends. IV, V and XIV §2; Tex. Const. Art. l §§9, l0 and l9; Tex. C.C.P. Art. l.04, l.05, l.06, 38.2l and 38.23; Wong Sun v. U.S., 37l U.S. 47l (l963).  Lastly, Counsel for the Accused will not be able to effectively represent him without an opportunity to test the admissibility of evidence which will be offered by the State.
III.	Argument and Authorities 
	Admitting evidence of drugs found on or about the person of a Defendant accused in a DWI trial violates Texas Rules of Evidence 403 and 702 unless it is shown that the drugs contributed to the Defendant’s intoxication.  Such evidence is inadmissible without a showing of a reliable scientific methodology as to make that determination. Layton v. State, 280 S.W.3d 235, 241 (Tex. Crim. App. 2009); citing Kelly v. State, 824 S.W.2d 568, 752 (Tex. Crim. App. 1992). Thus, scientific evidence and expert testimony are required for evidence of drugs (prescription or illicit) to be relevant to intoxication. Layton at 242. 
A.	No Proof of Reliability Under Rule 702/Kelly Predicate 
	Under Rule 702, the trial court must determine whether scientific evidence offered is “sufficiently reliable, as well as relevant, to help the jury in reaching accurate results.” Layton at 241.  The trial judge must act as “gatekeeper” to “weed out inadmissible evidence based on a lack of reliability.” Id.  The proponent must show by clear and convincing evidence that the scientific evidence “is sufficiently relevant and reliable to assist the jury in determining a fact issue.” Id.
	This Court must find that the opinion evidence is not only reliable, but that it is relevant under Tex. R. Evid. 401, that it meets the standard set in Rule 702 and that it “assists the trier of fact [in] understanding the evidence [in] determining a fact in issue.”  If the trial judge finds the proposed expert testimony meets both the Rule 401 and Rule 702 requirements, then the judge must perform a Rule 403 analysis to determine whether the evidence should, in fact, be presented to the jury. Morales v. State, 32 S.W.3d 862 (Tex. Crim. App 2000).
	As per the holding in Kelly v. State, as to "proof of reliability" predicate, "[u]nder Rule 104(a) and (c) and Rule 702, all three [of the following] must be proven to the trial court, before [scientific evidence...] may be admitted", Kelly, supra at 573.  The Kelly predicate is:

	(a)	the underlying scientific theory must be valid; 
	(b)	the technique applying the theory must be valid; and
	(c)	the technique must have been properly applied on the occasion in question.
	Absent, the State first showing that the underlying scientific theory premised on is valid ((a) supra) or that the technique applying the theory is valid ((b) supra), or that the technique was properly applied in this case ((c) supra), any admission of drug evidence in this case is error.  Kelly v. State, 824 S.W.2d at 573.
	In Layton, the court reversed the trial court’s ruling to admit evidence of drugs on or about the person of the accused.  Layton v. State, 280 S.W.3d at 242.  Layton was stopped and admitted to drinking, and taking Xanax and Valium, both of which were doctor prescribed. Id. at 237.  Following a denial of his motion to suppress, Layton objected at trial to the portions of the video referencing the medications because “the evidence should not be admitted without expert testimony to provide foundation.” Id. at 237-38.  The officer did not testify that Layton could have been intoxicated from the medications.  In fact, the only mention in Layton of “Xanax and Valium in the presence of the jury other than that in the video was by the State during its closing argument.” Id.  Essentially, the court in Layton determined that the very mention of the drugs, without a showing of admissibility under Rule 702, was error. Id.  The court further explained that “[r]eliability of scientific evidence demands a certain technical showing and depends on whether the evidence has a basis in sound scientific methodology.” Id. (citing Jordan v. State, 928 S.W.2d 550, 555 (Tex.Crim.App.1996)).
	Interpreting Layton, the First Court of Appeals came to that very same conclusion. In Delane, the arresting officer, who was not certified as a drug recognition expert, testified about the effects of drugs based on how they affected his wife and information contained in a nurse’s drug handbook. Delane v. State, 369 S.W.3d 412, 422 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd).  The arresting officer then opined that the medications could not have caused the behavior demonstrated by Delane.  Instead, the arresting officer said, Delane had “something else on board” other than prescription medications. Id. In reversing Delane’s DWI conviction, the Court concluded, the arresting officer’s testimony about the medications “was neither relevant nor reliable and that [the officer] was not qualified to offer such detailed testimony concerning appellant's prescription medications or his understanding of the effects of the prescriptions on appellant.” Id.  The court similarly rejected the State’s argument that Layton was distinguishable because it was an alcohol-only intoxication case:

Although Layton is distinguishable on this point, the principles regarding the admission of scientific testimony that the court of criminal appeals set forth in Layton apply to our review of the trial court's admission of Officer Morrison's testimony about the prescription medications that Morrison located in appellant's car and other evidence regarding these medications.
Id. at 421.
	DISTIGUISH CASE FACTS HERE *********The facts in this case are even more egregious for the State than in Layton and Delane.  In the present case, the State, as the proponent of this evidence, has no admission of a particular medication or dose.  Furthermore, no drugs or medication were found in the car.  Neither Officer is even qualified or certified to determine intoxication from illegal drugs or prescription medication since neither were certified as a DRE at the time of arrest.  Additionally, neither officer suspected anything other than alcohol as evidenced in the affidavit sworn to by Officer Roy.  Officer Roy clearly opined that alcohol and alcohol alone was the sole cause of intoxication. The State simply went on a fishing expedition in Defendant’s blood after it came back under the legal limit for alcohol.  No officer ever suspected or even tested for medication or illegal drug intoxication.  Defense counsel submits that if a proper DRE had been performed, the Defendant could have just as likely shown no effects from any illegal drugs or medication.  Mere presence of a medication or illegal drug in the human system does not equate to that chemical being psychoactive.   ********
	The admission of evidence that the Defendant possessed drugs on or about his person to prove intoxication, without a sufficient showing under Rule 702 and the Kelly test for reliability, would be error that would clearly prejudice Defendant at trial.  Moreover, an officer who does not possess the requisite training and experience to recognize drug impairment and opine on the effect those drugs have on the accused, as it relates to intoxication, violates Rule 702 and the Kelly test and should not be allowed to testify about the presence of drugs on the Defendant.
B.	Admitting this Evidence Violates Rule 403
	Even if the Court determines this evidence was relevant, reliable, and the anticipated testimony would satisfy Rule 702 and the Kelly test, it would still be subject to a Rule 403 balancing test. Swarb v. State, 125 S.W.3d 672 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d).  Texas Rule of Evidence 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.”  The Court of Criminal Appeals has broken down the analysis of 403 issues into a six-factor balancing test. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). This test requires reviewing courts to balance:

1)	the inherent probative force of the proffered item of evidence along with

2)	the proponent's need for that evidence against 

3)	any tendency of the evidence to suggest decision on an improper basis, 

4)	any tendency of the evidence to confuse or distract the jury from the main issues,

5)	any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and 

6)	the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. [Id.]

1.	The drug evidence carries no probative value. 

	The first factor weighs heavily in favor of exclusion.  Evidence must first be relevant to be probative. Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006).  (“[P]robative value means more than simply relevance.”).  The State will attempt to allow the jury to infer that Defendant was intoxicated on something other than alcohol.  No evidence, however, supports this inference.  Without more, and since the office is not qualified to opine on intoxication based on drug usage, the issue in dispute is only alcohol intoxication.  Thus, the drug evidence is irrelevant on that issue, and accordingly much less probative.  Judging by the evidence before this Court, this factor falls on Defendant’s side of the ledger. See Warr v. State, 418 S.W.3d 617, 621 (Tex. App.—Texarkana 2009, no pet.) (declining to make connection between prejudicial evidence without “logical or factual” basis).
2.	The State does not need the drug evidence to prove alcohol intoxication. 

	There are three sub-parts to this test: (1) Does the proponent have other available evidence to establish the fact of consequence that the evidence is admissible to show? (2) If so, how strong is that other evidence? (3) And, is the fact of consequence related to an issue in dispute? Reese v. State, 33 S.W.3d 238, 242 (Tex. Crim. App. 2000).  Viewed in this light, all three subparts weigh in Defendant’s favor.
	The first two subparts are intertwined.  The State will offer police officer testimony about alcohol intoxication.  Presumably, the officer will qualified to speak on alcohol intoxication, explain the field sobriety tests, and explain how he/she formed his/her opinion that Defendant was intoxicated “off of an alcoholic beverage.”  In addition to officer testimony, a video will be offered into evidence showing Defendant’s performance on field sobriety tests.  The jury will hear ample evidence to support alcohol intoxication. 
	Moreover, intoxication by anything other than alcohol is not (or should not be) in dispute.  Other than possession of the drugs, no evidence supported even an inference that Defendant was intoxicated from anything other than alcohol.  The officer is not qualified or able to recognize drug impairment.  The only conceivable reason the State wants the jury to hear this evidence is for its prejudicial nature.  Standing alone, possession of the drugs did not make impairment by anything other than alcohol an “issue in dispute.”  This factor also weighs in Defendant’s favor. 
3.	None of the counterbalancing factors fortify the State’s position. 

	The evidence is unfairly prejudicial to Defendant.  Unfair prejudice “refers to a tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Gigliobianco v. State, 210 S.W.3d at 641.  This includes evidence that could cause the jury to overlook or ignore the illogical. Id.  The drug evidence does nothing but inflame the passion of the jury, spurring it to make an illogical decision. 
4.	Evidence of drug possession serves only to confuse and distract the jury. 
	The drug evidence confuses and distracts the jury from the issues.  As explained above, the only issue in this case is alcohol intoxication.  By allowing the drug evidence, this court would allow the jury to become confused about which type of intoxication it is supposed to consider.  Simply put, if the State cannot preliminarily show intoxication through drugs by way of competent, credible, and reliable scientific testimony then any inference of drug usage would be irrelevant and only serve to confuse and distract the jury from their ultimate task – determining if Defendant was intoxicated from alcohol consumption.
5.	Drug evidence would be misleading. 
The drug evidence is also misleading.  This would be unfair burden-shifting on the part of the State.  Essentially, the lack of evidence of intoxication from drugs is so apparent that any admission of Defendant’s possession of drugs into evidence would shift the burden of proof to Defendant to show he was not intoxicated from said drugs.  Simply stated, the jury would be permitted to hear that Defendant may have been intoxicated on both alcohol and drugs in an alcohol-only intoxication case.  Because the drug evidence has no probative value at all, this Court cannot “reasonably conclude that the jury is equipped to evaluate the probative force” of the evidence. Gigliobianco, 210 S.W.3d at 642.
6.	The evidence would be cumulative. 
	Finally, the drug evidence would cause needless presentation of additional evidence.  Presumably, the State believes they can prove Defendant was intoxicated by way of introduction of alcohol beyond a reasonable doubt or this case would not be going to trial.  Moreover, the officer will testify that he believes Defendant lost the use of his mental and physical faculties due to the introduction of alcohol.  Evidence of possession of drugs on or about the person of the Defendant is neither necessary to prove the alleged offense nor is relevant.  If the evidence of drugs is not relevant to an issue at trial then the very mention of it is cumulative in nature.
PRAYER
	WHEREFORE, PREMISES CONSIDERED, the Accused prays that this Motion be granted and that the Court:

l.	Instruct the prosecutor and all the Government witnesses not to refer, testify or in any manner allude to the drugs found on or about the person of Defendant;

2.	Make required findings of fact and law as required by statute and constitutional authority before the submission of evidence to the jury; and,

3.	Order such other relief as may be deemed equitable and necessary.

						Respectfully submitted,

						THE THIESSEN LAW FIRM

						By:	 _________________________
							MARK THIESSEN
							SBN 24042025
							733 E. 12 1/2 Street
							Houston, Texas  77008
							Tel:  (713) 864-9000
							Fax:  (713) 864-9006

                        CERTIFICATE OF SERVICE
	I hereby certify that a true and correct copy of the above and foregoing instrument has been delivered to the Assistant District Attorney presently assigned to this case, on this the       day of ________________________, 2017. 

						______________________________
							MARK THIESSEN

NO. ***********

STATE OF TEXAS	§	IN THE COUNTY CRIMINAL	
	§		
vs.	§	COURT OF LAW NO. ***	
	§		
*******************	§	HARRIS COUNTY, TEXAS	

O R D E R 
	On this day came on to be heard the Accused's Motion to Suppress.  The Court having considered the evidence which the Government would offer in its case in‑chief;
		Suppress any and all evidence of:
			 Alprozalam, 			GRANTED/DENIED	
			cocaethylene, 			GRANTED/DENIED	
			and benzoylecgonine.		GRANTED/DENIED	
					
and the Constitutional and statutory rights of the Accused, finds that those items listed above and marked "GRANTED" are suppressed and the prosecutor, as well as all Government witnesses, are Ordered not to allude to any of the same while tendering evidence or testifying in this cause.
	SIGNED and ENTERED this      day of _____________________________, 20___.

						_______________________________________
						JUDGE PRESIDING