I have a DWI case, pot and booze. POM was severed from DWI, D pled guilty to POM OPEN(It was in his mouth) after jury selection.
DWI is now set for trial, I am doing everthing possible to get a max sentence on the POM, at sentencing.
D had a Prior DWI very similar facts same truck, sppeeding, NO POT, but everthing else is similar. A Motion to Supress was granted in that case a few years ago, after the supression, it was dismissed. I have no idea why the evidence was supressed, Stop and tests look good.
Can I use it in punishment? Or am I barred by the Motion to Supress? I see it both ways.
Most judges wont let you go into prior offenses or bad acts that were "dismissed." And the evidence in your case remains suppressed. I don't think you can use it in your case-in-chief. But there is always rebuttal, cross of the defendant if he opens the door, or if the defense otherwise opens the door.
The fact that D has been arrested for DWI should be admissible at the POM punishment hearing...but other facts about the prior DWI probably won't be admissible.
For the upcoming DWI trial, don't get caught off guard by the same lame defense tactics in similar trials involving a D caught with both MJ and a DWI:
1. How could it be physically possibe for my client to have been drinking alcohol when his mouth was full of Mary Jane?
2. The reason he refused the FSTs was not because he was afraid he would fail the tests but bc he was afraid he might accidently spit out the marijuana during the ABCs.
3. He was not laughing "at" the officer but "with" the officer.
4. He was sucking on the peppermint not to dilute the smell of alcohol but because he had the munchies.
The fact that the earlier case was dismissed should not prevent proof of the earlier conduct under 37.07, which allows for unadjudicated relevant conduct. (I do not mean to dispute Jeremy's observation that a judge might not follow the law in this regard).
The fact that the evidence of the earlier crime was supposedly illegally obtained may also not mean it is subject to exclusion under the Fourth Amendment. See cases such as Booker, 135 P.3d 57, 60-1 ("when there is no cognitive nexus between the police misconduct and the crime for which the defendant is ultimately tried, the exclusionary rule's primary deterrent purpose is not served").
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