TEXAS DWI ATTORNEY MOTION TO CHALLENGE VIDEOTAPING

Texas DWI Attorney Stephen Hamilton frequently files this motion on behalf of his Texas DWI clients: 

MOTION TO SUPPRESS AUDIO PORTIONS OF THE TEXAS DWI VIDEOTAPE

TO THE HONORABLE JUDGE OF SAID COURT:

Now comes Texas DWI Defendant in the above entitled and numbered cause, by and through his attorney of record, and respectfully moves this Court to suppress the audio portion of the videotape. Said videotape depicts the Texas DWI defendant shortly after his arrest for Texas DWI Driving While Intoxicated. For good cause the defendant shows the following:

1. On or about January 15, 2005, the defendant was arrested for Texas Driving While Intoxicated, 3rd offense. A Texas DWI videotape of the defendant was made at the scene of the arrest or shortly thereafter at the Texas DWI videotape room of the Lubbock County Jail.

2. The Texas DWI defendant contends that his videotaped answers, actions, and reactions were in response to police questions or police conduct which amounted to interrogation, and as a result, his responses should be suppressed. The audio tracks of videotapes of defendants charged with Texas Driving While Intoxicated should be suppressed when police conduct expressly or impliedly calls for a testimonial response not normally incident to arrest. See Jones v. State, 742 S.W. 2d 398, (Tex. Crim. App. 1987).

3. The videotape and the audio portion of the Texas DWI videotape are the fruits of an illegal arrest and seizure in violation of the Fourth and Fourteenth Amendments of the U.S. Constitution, Article I, Section 9 of the Texas Constitution, and Article 38.23 and Chapter 14 of the Texas Code of Criminal Procedure.

4. Texas DWI Defendant's oral statements made on the videotape were not made in compliance with Texas DWI Article 38.22, Section 3 of the Texas Code of Criminal Procedure and are therefore inadmissible against the defendant.

5. The Texas DWI videotape also contains testimonial evidence taken as a result of custodial interrogation without the defendant receiving the Miranda warnings as required by Miranda v. Arizona, 384 U.S. 436 (1966); the Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution; Article I, Section 10 of the Texas Constitution, and Article 38.22 of the Texas Code of Criminal Procedure.

6. Illegally seized evidence, such as statements of the Texas DWI defendant made in response to custodial interrogation where the defendant has not been warned of his constitutional rights and his rights under Texas DWI Article 38.22 of the Texas Code of Criminal Procedure, is inadmissible under Article 38.23 of the Texas Code of Criminal Procedure. Therefore, the entire audio portion of the videotape should be suppressed.

WHEREFORE, PREMISES CONSIDERED, Texas DWI Defendant prays that this Court grant this Motion and suppress the audio portions of the videotape based on Article 38.23 of the Texas Code of Criminal Procedure.

Respectfully submitted,

Boatwright & Hamilton, LLP

1005 Broadway

Lubbock, TX 79401

 800-DIAL-DWI

Fax: (806) 747-8110

Texas DWI Attorney for Texas DWI Defendant

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