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Ruminations

Ruminations

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Published by Michael Kennedy
General advice on criminal motions in DUI, and other, matters, given at San Francisco seminar
General advice on criminal motions in DUI, and other, matters, given at San Francisco seminar

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Published by: Michael Kennedy on Jul 10, 2010
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10/25/2012

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California DUI Lawyers Association“Fast Eddie” Kuwatch All Day Dui Seminar andAnnual MeetingMarch 13, 2010“Dumptrucks and the Motions Necessary to AvoidBeing One”“Ruminations on Motions”
by
Michael J. “Captain Motion” Kennedy, Esq.Kennedy & Roe
1111 East Tahquitz Canyon Way, Suite 101Palm Springs, California 92262760-320-6691
www.kennedyroelaw.com
“Battle Hymn of Captain Motion”Mine eyes have seen the Glory of the Coming of the Cap,He is trampling through the courthouse where the Hunnish evils are at…He has loosed the fateful lightening of his terrible motions attacks,His motions save us all.Glory! Glory! Captain Motion,Glory! Glory! Captain Motion,Glory! Glory! Captain Motion,His motions save us all.A Republican Form of Government means of laws and not of men
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,We must heed proper standards at home before we bomb Iraq again…One method for doing such is to perfect our motions Zen,His motions save us all.Glory! Glory! Captain Motion,Glory! Glory! Captain Motion,Glory! Glory! Captain Motion,His motions save us all.I have read his fiery motions, I have seen what they have wrought,Alas, too oft’ I have closed my eyes to what they should have taught,
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“…and women.” But it messes up the rhyme!
Ruminations on Motions
1
 
But if we hear the call and open our hearts we’ll find what we have sought,His motions save us all.Glory! Glory! Captain Motion,Glory! Glory! Captain Motion,Glory! Glory! Captain Motion,His motions save us all.
Preface:
Criminal motions are my game, which is why “motion” is in myname. There are ominous developments on the state and nationalscene that suggest revolution is at hand, or indeed actuallyproceeding apace yet without arms. Save for a few significant andsurprising cases this past year, the judiciary is increasingly oblivious toits founding purpose, best chronicled in Number 78 of 
The Federalist 
,which is to protect the individual from an overweening executive.Now, it increasingly consorts with an out-of-control executive tooppress individuals; it increasingly becomes, instead of resists, andoverweener. The executive, then seeing that it will not be reined in bythe judiciary, rampages across the Fruited Plain and against liberty,overlooking the fundamental lesson that where the People aresovereign, the neutral ends of Justice are supposed to be served bytheir prosecutors.
Berger v. United States
(1935) 295 U.S. 78, 88. Andgovernment in general, laughingly adjudicated by self-proclaimed but
faux 
“originalists,” exhibiting far more “
faux 
 
than “originalism,”forgets that the ultimate message of the Framers is that the defaultposition in this Republic rests favoring individual liberty and againstgovernmental power. That is, there is a war against liberty, in this land that was“conceived in Liberty,” and hence all actors on the field must comportand equip themselves accordingly. And one would hope thatprosecutors would eventually come around to recalling that theircalling is simply the Framers’ message that liberty dethrones power. Yes, yes, I know there are other than criminal defense attorneys in thisaudience, but then even prosecutors and judges have family memberswho could be the victims of illicitly overweening government.Although those involved with criminal law generally understandthat motions are available, and should be brought, and may besuccessful, very often that understanding gets lost when it comes todrunk driving defense, and hence far too many motions opportunitiesare lost by default. But if you would do motions for other cases, dothem here; and if you have not gotten clued to the value of motions in
Ruminations on Motions
2
 
other cases, get with it.One of the biggest problems facing those doing constitutionaldefense for people accused of drunk driving is that drunk driving haslong been, and is increasingly, a political crime. It is no secret that
MADD
,
SADD
, and other Prohibitionist political action groups,forgetting apparently that the 18
th
Amendment was repealed,elevating symbolic victimization to an art form, have bulldozed theirway into legislative and judicial precincts so effectively that theirgovernmental patrons low-crawl around and pander to their extortionto keep them from demonstrating outside legislative chambers andcourthouses. And those groups’ political terrorism has effectivelyengrafted drunk driving exceptions to the Constitution, and tocommon sense, onto our juro-political landscape such that “deuces”are harder for the defense effectively to litigate than are murders.As I have lectured, publicly and privately, for well-over 20 years,and as I scolded in the court of appeal just five weeks ago, there havegrown up drunk driving exceptions to the Fourth Amendment[
Ingersoll v. Palmer 
(1987) 43 Cal.3d 1321,
Michigan v. Sitz 
(1990) 496U.S. 444
2
,
People v. Banks
(1993) 6 Cal.4
th
926,
People v. Wells
(2006)38 Cal.4
th
1078
3
,
People v. Schofield 
(2001) 90 Cal.App.4
th
968
4
,
People
2
In
Indianapolis v. Edmond 
(2000) 531 U.S. 32, 39, drunk driving was decreed tobe an exception from the general rule of particularized suspicion for libertyinfringements, further proving that DUI is a political crime.
3
This enunciation of the radical doctrine that there is a DUI exception to thewell-established anonymous tip rule is eyebrow-raising in the extreme, but cert.was denied, even though the holding is contrary to U.S. Supreme Courtprecedent, and it is premised on the constructed hyperbole that DUI is more likea bomb than a concealed gun! See also
Lowry v. Gutierrez 
(2005) 129Cal.App.4
th
926 [anonymous informants okay for stops for DUI licensesuspension purposes, even though 4
th
Amendment standards are supposed togovern such proceedings]. I must confess that I thought
Wells
would go theother way, given that the U.S. supes have so held, or that cert. would begranted.In original constitutional intent, or course, there is no “public safety”exception to the 4
th
Amendment, because the 4
th
Amendment was designed tobe individuals’ safety against public power. Ah, those “originalists.” Wonder whatFramers’ utterances they look at when they self-servingly assign themselvessuch misleading labels!
4
“Presence,” a common law requirement for misdemeanor arrests since beforethe Framing, and hence deemed to be a reasonability requirement under the 4
th
Amendment by well-established authority, is not required for a DUI arrestbecause the evidence “might” disappear. Of course, it might also be increasingdue to the passage of time, but who cares ~ “get them drunks off’n thuh road”!/?
Ruminations on Motions
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