THERE IS A SIMPLE ANSWER TO OBJECTIONS TO THE TIMELINESS OF MOTIONS IN YOUR GEORGIA DUI CASES.
Every now and then, a prosecutor will attempt to object to the Court's consideration of motions/objections regarding the admissibility of evidence based on the issued being raised at the improper time (or too late). Nearly every issue that can and should be raised in a DUI case in Georgia may be raised by a motion in limine. As discussed in the cases below, a prosecutor's objection to a motion in limine raised at or immediately prior to trial should be overruled:
“‘In limine' means ‘at the threshold' or before the trial begins. State v. Johnston, 249 Ga. 413, 414 (fn. 3), 291 S.E.2d 543 (1982), quoting, Stevens v. State, 265 Ind. 411, 354 N.E.2d 727, 733 (1976).
A motion in limine is a pretrial motion which may be used two ways: 1) The movant seeks, not a final ruling on the admissibility of evidence, but only to prevent the mention by anyone, during the trial, of a certain item of evidence or area of inquiry until its admissibility can be determined during the course of the trial outside the presence of the jury[; and] 2) The movant seeks a ruling on the admissibility of evidence prior to the trial. The trial court has an absolute right to refuse to decide the admissibility of evidence, allegedly violative of some ordinary rule of evidence, prior to trial. If, however, the trial court decides to rule on the admissibility of evidence prior to trial, the court's determination of admissibility is similar to a preliminary ruling on evidence at a pretrial conference, and it controls the subsequent course of action, unless modified at trial to prevent manifest injustice.
Gaston v. State, 227 Ga. App. 666, 669, 490 S.E.2d 198 (1997)(citations and punctuation omitted), quoting, State v. Johnston, 249 Ga. 413, 415, 291 S.E.2d 543 (1982) (emphasis added).
“A motion in limine is the proper vehicle by which to interpose an objection to the admissibility of chemical test results on the basis urged by appellant herein, non-compliance with the provisions of OCGA § 40-6-392(a)(1)(A).” Gaston v. State, 227 Ga. App. 666, 669, 490 S.E.2d 198 (1997).
“Any challenge to the procedures used in reading [the defendant] his statutory implied consent warning, OCGA § 40-5-67.1(b)(2), and the proper working of the Intoxilyzer 5000 machine would have been appropriately raised by a motion in limine, which was not done here.” Goddard v. State, 244 Ga. App. 730, 731, 536 S.E.2d 160 (2000).
“Those portions of [the defendant's] motion to suppress alleging non-compliance with Code Ann. § 68A-902.1 or regulations of the Department of Public Safety do not involve ‘constitutional guarantees against unreasonable search and seizure.' Thus, a motion to suppress is not a proper procedural device to deal with such allegations. That does not mean, however, that such allegations may not be considered prior to trial.” State v. Johnston, 249 Ga. 413, 414, 291 S.E.2d 543 (1982), quoting, Hawkins v. State, 117 Ga. App. 70, 159 S.E.2d 440 (1967).
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