Friday, June 22, 2012

Motion Practice Can Limit or Dismiss Evidence


Motion practice is an effective way to limit evidence from the prosecution. It can lead to a dismissal if enough evidence is suppressed. A recent motion to limit evidence submitted by Gig Wyatt limited the testimony of the arresting officer regarding the Horizontal Gaze Nystagmus(HGN), a field sobriety test commonly used in DUII cases.

 In that case, the officer obtained 2 clues of impairment know as “lack of smooth pursuit” while observing the defendant’s eyes. He was unable to get additional clues known as “nystagmus at maximum deviation” and “nystagmus prior to 45 degrees.”  The FST testing manual requires that the test be done in a complete manner in order to be scientifically valid. Since he did not get at least 4 of the 6 clues ( he only got 2), Wyatt requested that he not be able to testify that he observed 2 clues of impairment.

An expert for the prosecution was consulted who agreed with Wyatt. The prosecution conceded that the test was not performed as technically required and the court agreed to limit the evidence so that the officer could not testify as to those clues of impairment.   Seemingly minor steps such as this to limit the  evidence battle often prove helpful in winning the war.


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Gig Wyatt , Attorney at Law, Harris, Wyatt & Amala, LLC , 5778 Commercial Street SE , Salem OR 97306

Salem Oregon DUII and Criminal Defense - (503) 378-7744, (503) 378-1013 Fax
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