Quick facts: DWI trial. Morning of trial, defense lawyer sashays in, plops down motion to suppress the stop, judge says "I'll take it up later." Jury is sworn and testimony begins (arresting officer). Trial breaks for lunch. Upon resumption of trial, judge abruptly says, "I'm granting the motion to suppress." Defense lawyer moves for dismissal. Judge says, "no, but I'm granting an instructed verdict," apparently deciding on premonition that we couldn't come up with any other evidence to get the case to the jury.

I've accepted that we can't appeal. We could try talking to the judge, but it wouldn't avail us much. Any similar experiences out there? If so, any practical advice?

MADD

In other words, I guess the judge was smart not to have granted the relief requested (since the State might have successfully appealed from that decision and been entitled to retry the case)?

Can you file for mandamus relief before the "instruction" is given and the jury discharged? Can you move for a continuance for that purpose?

Probably just another example of how a defendant gets the best of both worlds- a jury when he wants it and a judge when he doesn't.

[This message was edited by Martin Peterson on 11-10-06 at .]

That is, as you have already figured out, why they wait until late to file the suppression motion.

Ben's one word advice speaks volumes.

i've been thinking about the applicability of stanley to motions to suppress and i'm not sure that case transates from a dismissal of the charge to a motion to suppress in light of the language in 44.01 that doesn't allow appeals of motions to suppress after jeopardy attaches. at first blush, that would be a dispositive distinguishing factor, but i guess it might create a bizarre causality loop (thank you picard) in light of the language tht says appeal of a motion to dismiss doesn't offend jeopardy concerns. so then does jeopardy even attach if the motion to suppress doesn't reach the merits of the case? of course,this is just my long and tortured way of saying that while stanley might provide an avenue for relief, i don't think it's a thoroughfare and it may even be a dead end.

i think mandamus would be unavailing, too, though there was a case where the trial court entered a sua gluteous maximus directed verdict prior to a plea that was mandamus . . . able. (owmby was in the style of the case). this situation is different, however, as there was a trial and there was some motion, albeit one that the trial court did not rule on.

DWI for life!

David, I had a case where the defendant made admissions during his grand jury testimony. When offered at trial the court merely sustained an objection. Then the jury failed to reach a verdict and a mistrial was declared. I sought to appeal the trial court ruling as one suppressing evidence. Stanley had not been decided at that point. The Eastland court dismissed the appeal, but principally because there was no written order which formed the basis for the appeal. It does seem to me that Stanley perhaps illustrates an applicable principle in these situations. It must have some connection to 44.01(a)(5).