New Times / News
The following articles were printed from New Times [newtimesslo.com] - Volume 27, Issue 40
With DUI breath evidence barred, prosecutor plays defense
By NICK POWELL
After learning that his key piece of evidence couldn’t be used against a suspected drunk driver, Deputy District Attorney David Paxton didn’t hesitate to beg for a more favorable decision, filing a motion for reconsideration within eight days. He also filed a premature notice of appeal to the local court’s review panel of three judges.
On April 15, San Luis Obispo Superior Court Judge John Trice tossed out the results of breath tests that showed motorist Robert Sproston had a blood alcohol content of .21 or .22 when Pismo Beach police officer William Garrett stopped him on the road last fall. Garrett, now retired, admitted on the witness stand that he didn’t read the complete state-mandated Trombetta advisement, which requires officers to inform suspects that they can take either a roadside breath test or a laboratory blood test. The California Vehicle Code also demands that officers warn suspects that only blood can be preserved and re-examined.
Incidentally, suspects can also opt to give a urine sample, but the police don’t have to mention that.
Because Garrett had worked drunk-driving cases for nine years without issuing the advisement or being reprimanded by his superiors for failing to do so, Sproston’s defense attorney, Santa Barbara-based Darryl Genis, claimed that the Pismo Beach Police Department had “deliberately and systematically” suppressed potential evidence. Judge Trice agreed.
On April 23, Paxton filed his 13-page motion to reconsider, citing case law that suggests evidence can only be considered deliberately suppressed if it’s hidden or destroyed or if officers follow policies that actively skirt due process. Even so, Paxton argued, the Trombetta advisement was placed on California’s books in response to a state case that was eventually overturned by the United States Supreme Court.
“However inappropriate or egregious the officer’s disregard of a state statute, that conduct does not constitute a violation of the defendant’s constitutional rights, and therefore, suppression [of evidence] is not a lawful remedy available to this court,” the motion concludes.
Genis countered in court on April 29 by noting that the time for such arguments had passed. Motions for reconsideration are only valid, he said, when new laws with retroactive reach are passed or when evidence that wasn’t previously available comes to light.
“There’s no such thing as a Mulligan in motion practice,” Genis said.
Trice denied the motion, claiming he no longer had jurisdiction over the issue since the appeal had already been filed.
Chief Deputy District Attorney Jarret Gran disagreed with Trice’s logic on all accounts, telling New Times the prosecutors plan to file another motion, this time to reestablish Trice’s jurisdiction over the motion to reconsider.
“ [Trice and Genis] haven’t cited any legal authority as to why this evidence can be suppressed,” Gran said, adding that the level of intoxication was well beyond the legal threshold. “A .22 is tremendous.”
Sproston’s trial date was set for June 18, but that could be postponed depending on how this mess of motions and appeals gets resolved.