CAUSE NO. 233924

THE STATE OF TEXAS	                             §            IN THE COUNTY CRIMINAL 
	
VS.    						     §            COURT AT LAW NO. 2 OF
	
________________________		     §            BRAZORIA COUNTY, TEXAS

DWI MOTION TO SUPPRESS (BREATH)
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 his 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.CodeCrim.Proc. 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 ensure 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 his without an opportunity to test the admissibility of evidence that 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 that 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:  l) breath specimen or, 2) field sobriety test.
XVI.
	Deemed consent to the taking of a breath 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 BREATH TEST
	Any breath 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.
ILLEGAL ELECTRONIC RECORDINGS
	Any video and/or audio recordings made of the Defendant are derivative of law enforcement violations of the Accused's rights: to be free from unreasonable detentions, searches and seizures; illegal custodial interrogation; to assistance of counsel; and to give voluntary consent.
XX.
DUE PROCESS AND STATUTORY VIOLATIONS
A.  Denial of Defendant's Test Right
	The Defendant was not informed, as per Tex.Transp.CodeAnn., §724.019, of his right to take his own test by the arresting officer.  The Harris County District Attorney's Office was the agency responsible for preparing the script of rights and sanctions which is read by arresting officers to DWI defendants. The District Attorney's Office has acknowledged that said right was intentionally and deliberately omitted.  Moreover, the arresting officer, having knowledge of the Accused right to his own chemical test, intentionally and deliberately failed to inform him of his right to it.  Said intentional and deliberate failure by the state violated the Defendant's federal and state constitutional rights to due process of law in that he is now precluded from the opportunity of presenting material scientific evidence of his alcohol concentration, or lack thereof, at the time of the alleged instant offense.  Said material evidence could have conclusively established the innocence of the Accused.

XXI.
B.  Failure to Preserve Evidence
	The breath specimen taken of the Defendant was not preserved by the state.    Said breath specimen was taken on an electronic breath tester known as an intoxilyzer.  The intoxilyzer permits preservation of breath samples.  The failure to preserve the specimen amounts to an intentional destruction of evidence.  Said non-preservation equates to a willful and intentional bad faith destruction of material exculpatory evidence because a preserved breath specimen could have been accomplished with little effort and cost to the State.  Indeed, if cost was a factor, the Defendant was not offered an opportunity to pay for said preservation.  As a result of said destruction, the Defendant is now denied the opportunity to discover evidence which would have exculpated him. Accordingly, said action by the State violated the Defendant's state and federal constitutional rights and statutory rights to discovery, confrontation of witnesses, to produce evidence in his own defense and to due process.  Brady v.  Maryland, 373 U.S. 83, 83 S.Ct.  ll94 (l963), United States v.  Bryant, 439 F.2d 642, 652 (D.C.  Cir. l97l) and United States v.  Butler, 499 F.2d l006, l008 (D.C. Cir. l974).  (See attached memorandum.)
XXII.
NO RELEVANCE:  LACK OF SPECIFICITY
	The breath specimen taken from the Defendant for the purpose of determining his alcohol concentration was done so by means of a device known as an intoxilyzer.  An intoxilyzer test is not a chemical test.  Rather, the machine operates on the basis of infrared spectroscopy.  An intoxilyzer test is not specific for ethanol, (i.e., the machine could be indicating acetone or some other substance other than ethanol) because the quantitative accuracy of infrared spectroscopy is lacking in comparison to other analytical techniques, e.g., gas chromatography.  Accordingly, said result is inadmissible as per Tex.CodeCrim.Proc. Articles l.27, 38.0l and 38.02 and Texas Rules of Evidence 40l‑403.  Moreover, said test result is inadmissible because the intoxilyzer has not been generally accepted within the scientific community.
XXIII.
A.  Individual Variables
	No measurement of alcohol concentration can be "accurately" converted from blood, breath or urine samples by use of unsophisticated law enforcement testing techniques because said measurements are premised upon certain biological and physical assumptions which are inapplicable to all persons.  For example, breath testing instruments are calibrated to presume every person tested has a blood/breath ratio of 2l00 to l, a body temperature of 34 C and a hemacrit level of 47%.  However, reliable scientific sources indicate the blood/breath ratio ranges from l900 to 2400, body temperature fluctuates daily and varies person to person, and the hemacrit level in males ranges from 42% to 52% and for females 37% to 47%.  Accordingly, a defendant could have an erroneous high reading of alcohol on a breath test simply because his biological and physical characteristics varied from the average.  Therefore, said test results are inadmissible as per Tex.CodeCrim.Proc. Articles l.27, 38.0l and Tex. R. Evid.  40l‑403.  Moreover, said test results must be excluded because their 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.
XXIV.
B.  Audio and Video Recording
	The audio and video recording of the Defendant was made after an unreasonable amount of time subsequent to his arrest. Accordingly, said recordings would be inadmissible as per Articles l.27, 38.0l and 38.02 Tex.CodeCrim.Proc. and Texas Rules of Evidence 40l‑403. Specifically, because the recordings were made long after the Defendant was taken into custody, they will not aid the fact finder in assessing more probable or less probable the Defendant's intoxication or alcohol concentration at the time of the arrest. 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 2 hour rule under Tex.Transp.CodeAnn., §724.019(a), Owen v. State, 905 S.W.2d 434 (Tex. App. –Waco 1995).  
XXV.
C.  Delayed Test
	The breath 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).

XXVI.
D.  Single Breath Test
	Only a single breath 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.
XXVII.
E.  Defective Design
	The intoxilyzer is defectively designed in that the machine's readings may be affected by electromagnetic radiation. This problem is sufficiently serious that the latest model (Intoxilyzer 5000) of the intoxilyzer marketed by its sole manufacturer contains an internal device to warn the machine operator if electromagnetic radiation is present.  The machine used to test the Defendant contained no such warning device, nor had one been installed in the vicinity of this machine.  The intoxilyzer used to take the breath specimen from the Defendant was not tested on location either immediately before or after, or during the test to insure its results were not erroneously effected by electromagnetic energy (commonly called radio frequency interference or RFI).  Said intoxilyzer location is in area that contains many other electric devices which do emit electromagnetic radiation.  Cf., Wilson v. State, 328 S.W.2d 3ll (l959) (police radar).  (See also, United States Department of Transportation Report, DOT HS‑806‑400, NHTSA Technical Report dated May l983 entitled "Limited Electromagnetic Interference Testing of Evidential Breath Testers ‑‑ the report showed RFI susceptibility.  In l0 of l6 electronic breath testing devices). In fact, said intoxilyzer has never been checked for RFI susceptibility at its present location.  Tex.CodeCrim.Proc. l.27, 38.0l and 38.02; Tex. R.  Evid. 40l‑403 and Tex.  Chemical Breath Testing Regulations .002 §3(d).
XXVIII.
F.  Improper Pre‑Test
	The intoxilyzer used to test the Defendant in this cause was not properly tested in order that said test meet the scientific evidentiary predicate for relevance.  Rule 402, Tex. R. Evid.  The intoxilyzer circuitry was not tested for accuracy immediately before nor after the time the Defendant was tested in this cause. Texas Chemical Breath Testing Regulations .002 (3d); Cf., Wilson v. State, 328 S.W.2d 3ll, 3l4 (l959) (Police Doppler radar device). Specifically, no test was performed, either immediately before or after the breath specimen was taken from the Defendant, which proved:
	(A)	The interference detector (the portion of the machine which allegedly prevents a reading of a foreign substance, i.e., acetone, and makes it specific for ethanol) was accurately working. In fact, there are no records, as per the Texas Chemical Breath Testing Regulations .002 §3(f), that the intoxilyzer has been checked for accuracy of the interference detector.

	(B)	The linearizer circuit was accurately working. This circuit compensates for the inherent non‑linearity of the light measurement process and that of the light detector used in the machine. Said circuit divides the total range of breath‑blood alcohol concentration (bbac) to be measured into 5 separate ranges.  The ranges are:  0 to .08 bbac, .08 to .l6 bbac, .l6 to .24 bbac, .24 to.32 bbac, and .32 to .48 bbac.  At the time the Defendant was tested, only one of the aforementioned ranges had been checked which meant the remaining 4 bbac ranges were not checked for accuracy.  A proper test of this circuit can only be accomplished by measuring the response of the machine to several absorbing vapor samples of a wide range of concentrations. Such a test was not performed either immediately before or immediately after the breath tests performed on the Defendant.

XXIX.

G. No Proof of Reliabilty-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 [intoxilyzer 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 intoxilyzer  technique was properly applied in this case ((c) supra), any admission of intoxilyzer evidence in this case is error.
XXX.
 VIOLATIONS OF DPS REGULATIONS
	The analyses of the breath specimen taken from the Defendant is not valid under Tex.Transp.CodeAnn., §724.016, as it did not at the time of the test, and does not now conform to the Texas Chemical Breath Testing Regulations (TCBTR §l9.l‑l9.6) promulgated by the Texas Department of Public Safety. Specifically, the analyses is invalid as it was not performed under proper certification, TCBTR §§l9.l(a); l9.2(a) and l9.6(a) because:

	(A)	CERTIFICATION

	(l)	The law enforcement personnel who performed the breath testing of the Defendant were not properly certified under the TCBTR §l9.4(a) and l9.6 and cannot testify as an intoxilyzer operator, TCBTR §l9.3(h). Specifically, Defendant complains the state cannot show the intoxilyzer operator:

			(a)	Received initial certification, TCBTR §l9.4.

		(b)	Received renewal of certification after his initial certification had expired, TCBTR §l9.4(b)(5) and C(l).

			(c)	Has not had his certification automatically inactivated for failure to meet proficiency requirements of TCBTR §l9.3(b)(3).

(2)	The technical supervisor, responsible for supervision of the intoxilyzer test operator who took the breath specimen of the Defendant and also who was responsible for maintenance and inspection of the breath testing equipment used to take the breath specimen of the Defendant, was not properly certified as per TCBTR l9.5(a). Accordingly, said witness cannot testify as technical supervisor as per TCBTR l9.3(h).

(3)	The intoxilyzer used to take a breath specimen of the Defendant was not properly certified to be valid for evidentiary purposes.  Specifically, the intoxilyzer:

		(a)	Did not receive individual certification from the Office of the Scientific Director, TCBTR §l9.4(a) and l9.5(a).

	(b)	If initially certified, parts of the machine were changed, deleted or modified without written consent of the Scientific Director.  TCBTR §l9.l(d).

	(4)	The simulator used to test the accuracy of the intoxilyzer was not properly certified to be valid for evidentiary purposes. Specifically, the simulator:

			(a)	Did not receive individual certification from the Office of the Scientific Director, TCBTR § l9.4(a) and l9.5(a).

		(b)	If initially certified, parts of the machine were changed, deleted or modified without written consent of the Scientific Director.  TCBTR §l9.l(d).

	B.	NON‑CONFORMANCE WITH TCBTR §l9.l

	(l)	The intoxilyzer does not volumetrically measure or collect a fixed breath sample. §l9.l(b)(l).

	(2)	20% of air breathed in does not even reach the alveoli.  Therefore, no sample obtainable from the air exhaled into the intoxilyzer is "essentially alveolar." §l9.l(b)(2).

	(3)	Blood‑breath correlation tests conducted at the Department of Justice Facility, Sacramento, California, l2/8/77 (and published by CMI) show that for the most precisely noted (3‑digit) results that the intoxilyzer failed to measure blood alcohol concentration to within 0.0l wt.  % in 54% of the tests run. §l9.l(b)(3).
	
(4)	The intoxilyzer operator did not remain in the presence of the subject just prior to the taking of the breath sample for the required 15 minute period.  §19.3(I).

(5)	The intoxilyzer operator failed to run a reference sample after checking that the reference sample device is properly sealed and at the proper temperature.
XXXI.
	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). 
XXXII.
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.
XXXIII.
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 THIESSEN
							SBN: 24074476
taly@thetexastrialattorney.com 
CHRIS DENUNA
SBN:  24092338
chris@thetexastrialttorney.com 
							733 E. 12th 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 mailed to the Assistant District Attorney presently assigned to this case, on this the ___ day of _____________________________, 20___. 

						______________________________
						DAN SIMONS 
CAUSE NO. 233924

THE STATE OF TEXAS	                             §            IN THE COUNTY CRIMINAL 
	
VS.    						     §            COURT AT LAW NO. 2 OF
	
________________________		     §            BRAZORIA 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;
		(list of evidence in issue)
GRANTED/DENIED 	l.                          
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		l0.                         
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  _____ of  _____________________, 20___.

						______________________________
						JUDGE PRESIDING