CAUSE NO. 1587614

STATE OF TEXAS	§	IN THE JUDICIAL DISTRICT	
	§
V.	§	338TH DISTRICT COURT
	§
__________________			§	HARRIS COUNTY, TEXAS

DWI MOTION TO SUPPRESS (BLOOD)
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 any and all evidence seized or obtained as a result of illegal acts on behalf of the Government in this DWI criminal prosecution which violated 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.
	The requested hearing is required by the Texas Code of Criminal Procedure.  Tex. C.C.P. Arts. 28.0l(6) and 38.22(6).
II.
	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. 363 (l964); Reed v. State, 5l7 S.W.2d 8l7 (Tex.Crim.App. l975).
III.
	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).
IV.
	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 Government.
V.
	The Government has the burden of proving the lawfulness of a warrantless search and seizure, Coolidge v. New Hampshire, 403 U.S. 443 (l97l), and that any alleged statements or acts of the Defendant which were the products of custodial interrogation meet the requisites of Miranda v. Arizona, 384 U.S. 436 (l966) and Article 38.22, Tex.CodeCrim.Proc.
VI.
ILLEGAL DETENTION, SEARCH AND SEIZURE
	The seizure of the Accused was made without any reasonable suspicion that he was engaged in criminal activity.  The acquisition of the evidence which will be offered by the Government in this cause was not pursuant to a reasonable investigative detention, not pursuant to an arrest warrant, was absent exigent circumstances, and made without probable cause to believe the Accused was engaged in criminal activity.
VII.
	The acquisition of the evidence which the Government will offer in this cause was not pursuant to a search warrant, was absent exigent circumstances, and made without probable cause to believe the Accused was engaged in criminal activity or that such evidence, if any, was in danger of being destroyed.
VIII.
	Any statements and acts allegedly made by the Accused in connection with this detention, search and seizure, and any tangible or other evidence seized or acquired then, or at any later time as a result of said statements or acts, are the products of the illegal detention, arrest and search and are therefore  the direct result of illegal police procedures.

IX.
ILLEGAL CUSTODIAL INTERROGATION
	Any statements allegedly attributed to the Accused were made as a result of illegal custodial interrogation,  without proper warning,  Miranda v. Arizona and Art. 38.22, and absent any public safety exception.  New York v. Quarles, l04 S.Ct. 2626 (l984).
X.
	Any statements or acts allegedly attributed to the Accused were made as a result of illegal custodial interrogation and made without a knowing, intelligent and affirmative waiver by the Defendant of his rights to remain silent and to counsel, Miranda v.  Arizona, and were obtained in violation of Art. 38.22, Tex.CodeCrim.Proc.
XI.
DENIAL OF COUNSEL
	The Accused was not afforded meaningful access to counsel at a time when critical decisions involving his constitutional and statutory rights were being made.  U.S. v. Wade, 388 U.S. 2l8 (l967).
Any rights asserted by the Defendant at any time after his arrest including the right to remain silent, the right to terminate the interview, and/or the right to counsel should be suppressed on the basis that admission of such evidence would violate the Defendant’s rights to remain silent, to terminate the interview, and/or to counsel.  Moreover, based on the invocation of the foregoing rights, all warnings, statutory, constitutional, or Miranda, should be suppressed on the basis that their admission would violate the Defendant’s rights to remain silent, to terminate the interview, and/or to counsel.
XII.
	Any oral, written or electronically recorded statements and acts allegedly made by the Accused were improper as they were elicited through illegal police interrogation after the Defendant had requested assistance of counsel.  Edward v. Arizona, 45l U.S. 477 (l98l).
XIII.
	The Accused, not having waived his constitutional or statutory rights, is guaranteed that such unconstitutional and nonstatutory extrajudicial statements, acts, admissions or confessions alleged to have been made by him, will be suppressed.  Edwards v. Arizona, 45l U.S. 477 (l98l); Miranda v. Arizona, 384 U.S. 436 (l966); Jackson v. Denno, 378 U.S. 368 (l964); Wong Sun v. U.S., 37l U.S. 47l (l963); Mapp v. Ohio, and 367 U.S. 643 (l96l), Articles l.27, 38.22 and 38.23, Tex.CodeCrim.Proc., Tex.Transp.CodeAnn., Chapter 724 (Vernon 1997).
 XIV.
NO CONSENT
	The acquisition of the evidence which the Government will offer in this cause was made without the Accused's consent.
XV.
	The Defendant did not intelligently, voluntarily and knowingly consent to the taking of a field sobriety test.
XVI.
	Deemed consent to the taking of a blood specimen under Tex.Transp.CodeAnn., §724.011, was not valid as the Defendant had been illegally detained but not placed under arrest. See also,  Aliff v. State, 627 S.W.2d l66, l68‑69 (Tex.Crim.App. l982).
XVII.
	The Defendant did not receive his requisite statutory warnings with regard to Tex.Transp.CodeAnn., §724.015, prior to being requested to submit to a chemical test, in that he was not informed:

l)	Orally and in writing, that;
2)	his refusal to give breath/blood specimen could be admissible against him;
3)	his driver's license would be suspended if he refused to give a breath/blood specimen, whether he is prosecuted or not; and,
4)	that he had a right to request a hearing within 15 days after notice of the suspension hearing to determine if his license would be suspended.

XVIII.
ILLEGAL BLOOD TEST
	Any blood test taken by the Defendant, as well as any breath test result, is derivative of law enforcement violations of the Accused's right:  to be free from unreasonable searches and seizures; illegal custodial interrogation; to assistance of counsel; and to give voluntary consent.
XIX.
A.  Delayed Test
	The blood specimen taken of the Defendant was not performed within a reasonable period of time, and as such, is not either a reliable or relevant indicator of intoxication at the time of the alleged instant offense.  Said test result is not relevant as their can be no extrapolation back from the time of that sole test to the time the Defendant was arrested which could scientifically show whether the alcohol concentration was declining, rising, or had peaked, i.e., said test has no tendency to make the existence of the Defendant's degree of intoxication at the time of the alleged offense more or less probable than it would be without the evidence.  Moreover, said evidence must be excluded because its probative value is substantially outweighed by the danger of unfair prejudice, as the same would confuse the issues and tend to mislead the fact finder. See also, the two hour rule under Tex.Transp.CodeAnn. § 724.019 (a), Tex.CodeCrim.Proc. Articles l.27, 38.0l and 38.02 and Tex. R.  Evid. 40l‑403, Owen v. State, 905 S.W.2d 434 (Tex. App. –Waco 1995).
XX.
B.  Single Blood Test
	Only a single blood specimen for alcohol concentration was taken of the Defendant, and as such, is not either reliable or relevant indicator of intoxication at the time of the alleged instant offense.  A result of one test is not indicative of whether the alcohol concentration was declining, rising, or peaked. Accordingly, said test result is inadmissible as Tex.CodeCrim.Proc. l.27, 38.0l and 38.02 and Tex. R. Evid. per 40l‑403. Moreover, said evidence must be excluded because its probative value is substantially outweighed by the danger of unfair prejudice, as the same would confuse the issues and tend to mislead the fact finder.

XXI.

C. No Proof of Reliability-Kelly Predicate 
	As per the holding in Kelly 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 [blood test evidence...] may be admitted",  Kelly v. State, 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 blood test technique was properly applied in this case ((c) supra), any admission of blood test evidence in this case is error.

XXII.

STATUTORY VIOLATIONS

D. Improperly Qualified to Take Specimen

	The individual who extracted the blood specimen from the Defendant was not a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse. Cf. State v. Drdak, 400 S.E.2d 773 (N.C. App. 1991). Emergency medical services personnel are specifically excluded under the law as not being “qualified technicians.”  Therefore, said person directly violated the statutory provisions of Tex. Transp. Code § 724.017.

XXIII.
E. Improper Location

	The blood specimen taken from the Defendant was not taken from a sanitary place. See generally, Denton v. State,772 S.W.2d 537 (Tex.App. – Houston [14th Dist.] 1989, pet. ref’d).  Therefore, said person directly violated the statutory provisions of Tex. Transp. Code § 724.017(a).
XXIV.
	Because of the foregoing reasons and others which may be adduced upon a hearing of this matter, the admission of the statements and acts of the Defendant and also of the seized and derivative evidence would violate the Accused's statutory and constitutional guarantees against self‑incrimination, U.S. Const. Amends. IV, V and XIV; Tex.  Const. Art. l §§9, l0; Tex. C.C.P. Art. l.05, l.06, 38.2l, 38.22 and 38.23, against unreasonable searches and seizures, U.S. Const. Amend. IV; Tex. Const. Art. l §9; Tex.  C.C.P. Arts.  l4 and l5; to effective assistance of counsel, U.S. Const. Amend.  VI; Tex. Const. Art. l §l0; to a fair trial, U.S. Const. Amend.  VI; Tex. Const. Art. l §l0 and Tex. C.Cr. Pro. Art. l.27, 38.0l and 38.02; and to his statutory rights under Tex.Transp.CodeAnn., Chapter 724 (Vernon 1997). 
XXV.
FIELD SOBRIETY TEST
	The Defendant’s performance on motor skill exercises was coerced by the arresting officer.  Said performance was not voluntary and was without willing consent.
XXVI.
REQUEST FOR FORMAL FACT FINDING ON INVOLUNTARINESS
	The Defendant specifically requests the court make a fact finding on the voluntariness/involuntariness of the evidence complained of in this motion. 

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 oral or written statements allegedly made by the Accused until their admissibility has been determined;

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
mark@thetexastrialattorney.com
TALY JACOBS
							SBN:  24074476
							taly@thetexastrialattorney.com
CHRIS DENUNA
							SBN: 24092338
							chris@thetexastrialattorney.com
733 E. 12 ½ Street
							Houston, Texas 77008
							PH: (713) 864-9000
							FX: (713) 864-9006

						Attorney for Defendant,
						____________________________ 
					
Defendant's Affidavit on Standing

	I am the Defendant in the above‑styled and numbered cause. In regard to the foregoing Motion to Suppress, I swear, through this affidavit, that the officers who stopped me, took me into custody, placed me under arrest, and seized all the evidence complained of in this motion, which said evidence is the same evidence referenced to in the State's charging paragraph, did so without the authority of either an arrest or search warrant.  Further, I neither voluntarily consented to my seizure nor to the collection of other evidence which is now being used against me in this prosecution. Lastly, it is my belief, and I swear herein, that the officers in their arrest, interrogation, subsequent investigation and evidence collection, violated my state and federal statutory and constitutional rights to be free from compulsory self‑incrimination, right to assistance of counsel and to due process of law.

						______________________________
						Defendant

	Subscribed and Sworn to before me on this the       day of __________________, 20___.

						______________________________
						Notary Public in and for the
						State of Texas

                        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 ________________________, 20___. 

						______________________________
							MARK THIESSEN

CAUSE NO. 1587614

STATE OF TEXAS	§	IN THE JUDICIAL DISTRICT	
	§
V.	§	338TH DISTRICT COURT
	§
___________________			§	HARRIS COUNTY, TEXAS

ORDER ON DWI MOTION TO SUPPRESS (BLOOD)
	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;
		(list of evidence in issue)
GRANTED/DENIED	 1.	_______________________
GRANTED/DENIED 2.	_______________________
GRANTED/DENIED	 3.	_______________________
GRANTED/DENIED	 4.	_______________________
GRANTED/DENIED 5.	_______________________
GRANTED/DENIED	 6.	_______________________
GRANTED/DENIED	 7.	_______________________
GRANTED/DENIED 8.	_______________________
GRANTED/DENIED 9.	_______________________
GRANTED/DENIED	 10.	_______________________
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