Fill and Sign the Dismiss Charges Form

IN THE ______________ COURT OF _______________ (County) , _______________ (State) _______________________ PLAINTIFF (State of ___________) V. CAUSE NO. _______,_______ _______________________ DEFENDANT (Name of Defendant) Motion to Dismiss Based on Failure to Administer Breathalyzer Pursuant to Regulations Concerning Breathalyzers Comes now ___________________ (Name of Defendant) , Defendant in the above- captioned cause, and respectfully moves that this Court suppress the breathalyzer results in this case, and dismiss the above-captioned Complaint, and as reasons therefore, the Defendant asserts the following: 1. The breathalyzer was not conducted within a “reasonable time” as required for the admission of a breath test. Specifically, (specify regulation) 1 __________________________ , provides as follows. (Specify regulation) ___________________________________________ ________________________________________________ . The regulations further provide that a test is inadmissible if not conducted pursuant to the procedures in the regulations. Here, the Defendant, who was stopped at _________ (include time) , was initially brought to the ___________________________ (name of police station) , where he consented to a breathalyzer that was administered at ___________ (time of test) . Due to a malfunction, the _____________________ (name of police department) were unable to administer a test. The Defendant ultimately was not provided a test until ___________ (time of test with adequate sample) . 2. The police report establishes that proper procedures were not employed to the extent that the Defendant was not observed for _________ (number of minutes required under regulations) minutes prior to administering the breathalyzer test. Specifically, the police report not only fails to note this fact, but the timing demonstrates that the Defendant was tested immediately upon being transferred to the station. 3. The failure to administer the breathalyzer has resulted in the destruction of potentially exculpatory evidence in this case. See _______________________ (citation of cases regarding the destruction of exculpatory evidence) . 4. Additionally, in this case, the Defendant, who waived the opportunity under __________________ (statute governing operating under the influence) to obtain an independent medical exam, willingly submitted to the breathalyzer with the reasonable expectation that the test would be administered correctly and verify whether he was in fact in violation of the law. 1 Recite regulation, for example, if after being advised of his or her rights in accordance with the provisions of (operating under influence statute), a person arrested for operating under the influence of intoxicating liquor consents to submit to a breath test, he or she, as soon as reasonably possible, shall be taken to a facility with certified breath testing devices) 5. There is scant evidence warranting an arrest aside from the breathalyzer, specifically (description of police report, for example, the defendant was able to perform two of three field sobriety tests to the officer's satisfaction, there was no accident, and there was no observation of erratic observation) _____________________________________________ ____________________________________________________________________________ ____________________________________________________________________________. Wherefore, Defendant moves that the breathalyzer be suppressed, and, under these circumstances, where there is no other evidence of intoxication, the Complaint should be dismissed. In support of this motion, the Defendant relies on the attached affidavit of counsel and accompanying police report. Witness my signature this the ___________________ (date) . Respectfully submitted, ______________________________ (Name of Defendant) By: ________________________________ (Name of Defendant ’s Attorney) State Bar No. ____________ One of His Attorneys OF COUNSEL: ______________________________ (Name of Defendant ’s Attorney) Post Office Box ______________ _______________________________________ City, State, Zip Code Telephone: ____________________ Certificate of Service This is to certify that I, ___________________ (Name of Attorney) , attorney for Defendant _________________________ (Name of Defendant) , have this date served a true and correct copy of the above and foregoing Motion by U.S. Mail, postage fully prepaid, to the following counsel of record for Plaintiff: _________________________ (Name of Attorney) Post Office Box _______________ ______________________________________ City, State, Zip Code This the ______________________ (date) . Respectfully Submitted, ______________________________ (Name of Attorney) State Bar No. _________ Attorney for Defendant OF COUNSEL: __________________________ (Name of Defendant ’s Attorney) Post Office Box __________ _________________________________ City, State, Zip Code Telephone: ____________________ Notice of Motion to Dismiss You are notified that on ________________ ( date) , at _________ (time) , or as soon thereafter as counsel can be heard, in Courtroom _______ of the _______________Court for ___________________ (Name of County) , ________________ (Name of State) , at the __________________ (Name of County) Courthouse at ______________________________ ___________________________________________ (street address, city, state, zip code) , Defendant _______________________ (Name of Defendant) , by and through his attorney, will bring on for hearing his Motion to Dismiss . Respectfully Submitted, ____________________________ (Name of Attorney) State Bar No. ______________ Attorney for Defendant OF COUNSEL: ________________________ (Name of Defendant ’s Attorney) Post Office Box ____________ _____________________________ City, State, Zip Code Telephone: __________________