DUI Law: Appellate Review & Motion to Suppress
I have written extensively about the importance of filing a motion to suppress to challenge the evidence that the State can use against a defendant in a DUI case. Counsel can use the motion to suppress as an informal discovery tool, as an informal deposition of the State’s witnesses, as a dry run of your scientific defense, or as a method of attacking the State’s witnesses. Whatever your strategy, the goal is to win. But what if you don’t?
A defendant has not direct appeal from a decision overruling a motion to suppress because an adverse ruling is not considered a “final appealable order.” Traffic Rule 11 and Criminal Rule 12 set forth that an appeal of a denial of a motion to suppress can only be taken after a defendant has been found guilty and sentenced after a no contest plea or after a conviction at trial.
The lessons that we, as DUI counsel, should take away from this rule are: 1) if you have an issue which would only be evident at trial, take it to trial. Only issues raised at the trial court can be raised on appeal; 2) if you don’t take the matter to trial, make copious use of “proffering” evidence upon which the court of appeals can base a ruling; 3) explain the options to your client before the motion and allow the client to put this into his or her risk-reward matrix. Sometimes a client will be forced to make a decision on whether or not to pursue a trial before the motion to suppress because the act of having the motion will cause the prosecutor to take an existing deal off the table.