Defense attorney files a motion to suppress the blood on a DWI search warrant because, at the time the Defendant refused to provide a specimen, he did not have the normal use of his mental faculties due to the introduction of alcohol. Crap. I think he's got us.

And, as his motion illustrates, still too intoxicated to stand trial!

If he's too intoxicated to withdraw consent, then doesn't that mean implied consent stands?

And if the judge throws the evidence out, can we use that judicial determination that he was intoxicated at trial?

in 1989 - but it was slightly different - the defense sought to suppress the video because his client was too intoxicated to voluntarily participate in the sobriety tests, as the BAT results from the intoxilyzer showed (I think he was a 0.16). The defense counsel was very upset he lost.

Which I guess is why the Legislature felt the need to state the obvious in the Penal Code: voluntary intoxication is not a defense, especially to a charge involving intoxication.

Defense counsel just dropped the same type of motion to suppress blood alcohol draw for no warrant.

All this legal brilliance just has me asking one question:

At what point are motions frivolous?

On behalf of a defendant, never. Or at least that seems to be the rule. :\

There is no such thing as a frivolous defense motion, BUT, a good judge can dispose of them quickly. I have had several judges deny motions without a hearing, and they have never been reversed on appeal. Sometimes, getting a judge with the intestinal fortitude to do just that is another thing.