Motion to Suppress
by Celia Sams
CAUSE NO.
STATE OF TEXAS		IN THE COUNTY
	§
VS.	§	COURT OF
	§
_______________	§	___________ COUNTY, TEXAS

MOTION TO EXCLUDE INADMISSIBLE EVIDENCE

TO THE HONORABLE JUDGE OF SAID COURT:

	COMES NOW _________________, Defendant in the above-styled and numbered cause, and files this motion to suppress and exclude certain evidence that is inadmissible and for cause would show the court the following:
I.
	The Defendant moves the Court to suppress and exclude the following evidence:
	A. All statements made, whether oral or written, and such other actions of the Defendant, if any, at the time of and subsequent to the stop,1 investigation, arrest and search of the Defendant, including but not limited to: any statements regarding Defendant’s possession or the introduction into the Defendant’s body of any prescription or over-the-counter drugs or any controlled substance or dangerous drug, or any other substance. 
	B. Testimony of law enforcement officers, or their agents and all other persons working in connection with such officers and agents, and all persons present at or near the location of the arrest and search of the Defendant and the search of the vehicle occupied by the Defendant regarding Defendant’s possession or the introduction into the Defendant’s body of any prescription or over-the-counter drugs or any controlled substance or dangerous drug, or any other substance. 
	C. Any recording audio or video, referring to or containing any statements by defendant or any State’s witness regarding the introduction into the Defendant’s body of any prescription or over-the-counter drugs or any controlled substance or dangerous drug, or any other substance, unless such evidence can be shown to be reliable and relevant under Daubert and Kelly and Tex.R.Evid. Rule 702 standards for scientific or expert testimony in determining the issue of intoxication.

II.
As grounds for this Motion the Defendant would show the Court the following:
	A. The Defense anticipates the State will offer testimony by the arresting officer and other officers and on videotape or other recording that Defendant made statements that he used codeine or hydrocodone prior to the stop. The defense anticipates that the State will offer these statements into evidence to prove he was intoxicated. On February 4, 2009, the Court of Criminal Appeals ruled on this issue. In Layton v. State, 280 S.W.3d 235 (Tex.Crim.App. 2009), the Court of Criminal Appeals held the trial judge abused his discretion in a DWI trial when he allowed the State to present evidence of intoxication through the arresting officer and through video­tape that defendant stated he had used Xanax and Valium. The Court held that such evidence was not reliable scientific evidence under Rule 702 and under Daubert and Kelly1 standards, and therefore not relevant or admissible to the issue of intoxication because the State had no evidence to present regarding any expertise of the officer in medical or pharmaceutical matters, and because there was no evidence re­gard­ing the dosage taken, the time the drugs were taken, or what effect those things would have on his intoxication. The Court ruled that because the evidence was not scientifically reliable it could not assist the jury in determining material facts, and could be misleading2 particularly in light of the absence of scientific evidence as to the dosage taken, the exact times of ingestion, or other evidence showing the effect the drugs could have had on defendant’s intoxication. Tex.R. Evid., 401, 402, 702.
	The Layton Court went on to say: “Scientific evidence has the ability to mislead a jury that is not properly equipped to judge the probative force of the evidence. Casey v. State, 215 S.W.3d 870, 880 (Tex.Crim.App.2007). Pursuant to Rule 702, it is the responsibility of the trial court to determine whether the scientific evidence offered is sufficiently reliable, as well as relevant, to help the jury in reaching accurate results. Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App.1992).”
	That is the case here. The State has no evidence as to the exact chemical content of the drug, if any, ingested by Defendant, or the dosage, the time, or other factors relating to Defendant’s metabolism or the effect of this or other drugs on Defendant’s intoxication, if any. 
	B. And for such other and further reasons as may appear or be urged upon hearing in this cause.
	WHEREFORE, PREMISES CONSIDERED, the Defendant prays that upon hearing, that his Motion be in all things granted.

	Respectfully submitted,

	_______________________________
	Celia M. Sams
	Texas Bar No. 04722100
	P.O. Box 775
	Rowlett, TX 75030-0775
	Phone: (972) 475-7476
	Attorney for Defendant

CERTIFICATE OF SERVICE

	This is to certify that a true and correct copy of the foregoing Motion to Exclude Inadmissible Evidence was served upon the attorney for the State on ________________, 200___.

	__________________________________
	Attorney for Defendant

CAUSE NO.
STATE OF TEXAS		IN THE COUNTY
	§
VS.	§	COURT OF
	§
_______________	§	___________ COUNTY, TEXAS

ORDER ON MOTION TO EXCLUDE INADMISSIBLE EVIDENCE

ORDER ON DEFENDANT’S MOTION TO EXCLUDE INADMISSIBLE EVIDENCE

	On this the _____ day of ____________________, 200___, came on to be heard the Defendant’s Motion to Exclude Inadmissible Evidence and after considering the evidence and argument of counsel, the motion is hereby:

	GRANTED as to paragraphs ________________________________.

	DENIED as to paragraphs __________________________________.

	SIGNED and ENTERED this _____ day of ____________________, 200___.

	____________________________________
	JUDGE PRESIDING

Notes
1. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992).
2. Layton, Daubert, Kelly see also DeLarue v. State, 102 S.W.3d 388 (Tex.App.—Houston [14th Dist.] 2003, pet. ref’d), FN4. In DeLarue, the court of appeals determined that the trial court erred in admitting evidence of marijuana found in the defendant’s bloodstream to show intoxication without a Daubert-Kelly hearing, because without proof of scientific reliability, the evidence was more prejudicial than probative. 102 S.W.3d at 401.