One of the most common motions filed in a criminal DUI case is a motion to suppress pursuant to 1538.5 of the Penal Code. This motion is designed to challenge an unlawful stop, detention and/or search of a motor vehicle or a person during the DUI arrest. Although suppression motions can be used for other reasons such as a motion to suppress a breath test, this article discusses the specific motion made pursuant to 1538.5 of the California Penal Code to challenge a warrantless search or seizure.

The procedural requirements of the motion include that it be written, that it set forth the basis of the constitutional violation in order to put the prosecution on sufficient notice and that the motion must be served upon the prosecutor no less than 10 court days prior to the hearing.

Some of the more common grounds included in a penal code section 1538.5 motion to suppress are that the initial stop was not supported by reasonable suspicion, that the detention of the driver was unnecessarily prolonged and that the arrest was unlawful in that it lacked sufficient probable cause.

Once the motion is served upon the prosecution and filed with the court, a hearing date will be set for the purpose of taking evidence and testimony to determine whether a violation of constitutional rights under the fourth amendment occurred.

At the hearing on the motion to suppress, the prosecution bears the burden of proof to justify the contact and encounter was constitutional. The defense only bears the minimal initial burden of establishing that the encounter and subsequent evidence seized was the product of a warrantless search or seizure. The issue of whether a warrant existed is often settled by stipulation.

The law on this issue is clear: The burden of justifying a warrantless search, seizure, arrest or detention falls squarely upon the prosecution. People v. Williams, 20 Cal. 4th 119 (1999); Wilder v. Superior Court, 92 Cal. App.3d 90 (1979). As stated by the California Supreme Court, “Consistent with section 1538.5, subdivision (a)(2), we hold that when defendants move to suppress evidence, they must set forth the factual and legal bases for the motion, but they satisfy that obligation, at least in the first instance, by making a prima facie showing that the police acted without a warrant. The prosecution then has the burden of proving some justification for the warrantless search or seizure.

If a Court determines that evidence was obtained during a DUI arrest and that the police acted unconstitutionally in obtaining the evidence then said evidence must be suppressed, meaning it cannot be used in the subsequent prosecution of the defendant.

In California a PC 1538.5 motion to suppress can be a very effective tool for the defense in a driving under the influence case. If successful, a PC 1538.5 Motion can result in a dismissal of the charges. Below is an actual motion pursuant to Penal Code 1538.5 filed in a recent driving under the influence (DWI) case in Los Angeles Superior Court. For a copy of the full motion, contact Matthew by clicking the link at the bottom of the page.

Matthew Ruff is a top-tier DUI defense attorney in the state of California with over 30 years experience.

Many folks facing drunk driving charges ask if it is possible to get dui charges dismissed. The answer to that question is yes, if the evidence shows the police violated your rights or the evidence is insufficient to prove guilt beyond a reasonable doubt. For example in one recent case Matthew handled, he was able to get DUI charges in Redondo Beach dismissed because the police officer violated his client’s constitutional rights, see the actual decision below: