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PRELIMINARY EXAMINATION

Use it or lose it. PRELIMINARY EXAMINATION. Know the Rules. T.R.Cr.P. 5.1 Evidence- hearsay not allowed ( except proof of ownership or expert reports) Defense right to cross examine and put on proof A record of the hearing (if recording is lost right to another hearing)

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PRELIMINARY EXAMINATION

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  1. Use it or lose it PRELIMINARY EXAMINATION

  2. Know the Rules • T.R.Cr.P. 5.1 • Evidence- hearsay not allowed ( except proof of ownership or expert reports) • Defense right to cross examine and put on proof • A record of the hearing (if recording is lost right to another hearing) • If P.C. found transfer records to criminal court

  3. Probable Cause Not Discovery • Preliminary Hearing is not a “fishing expedition” • Discovery is a byproduct of the P.H. • The scope of the proceeding is under control of the judge and in there discretion. • The judge may terminate the hearing at any time once P.C. has been established and the accused a chance to cross examine the states witnesses.

  4. Have Direction and A Plan • Prepare for your P.H. like you would a trial • Know what your defenses are and what you need • Be prepared • Visit the scene of the incident • Photograph and Video the scene • Interview all the witnesses

  5. Know the Law and Facts • Prepare for everything (the DA will not) • All questions go to negate P.C. • Any proof you have negates P.C. • Know what you need to get from all the witnesses • When in doubt subpoena your own witnesses (do not rely on the state)

  6. Topics for the DUI P.H. • Start with the stop-where did you first see my client, how long, alleged violation. • Stopping and exit sequence- How client responded to light, exit car, get license. • Walk to area for SFST- lighting grade (pictures) • SFST- officer training, instructions, scoring, video • Chemical testing- blood or breath, nurse or BAT tech, time of stop to test

  7. Chemical Testing • Always negating P.C. (not discovery) know the science • Question the breath tech on time, science, machine reliability, certification • Blood Tech- the draw, the kit • Toxicologist- gas chromatography, graphs, samples ect.

  8. Defense Witnesses • Do you want to call a witness • What will you get out of it • Will you tip your hat to the government • Will you set up your fact witnesses • Will the Government witness be able to recant • Will this negate P.C.

  9. Putting on Proof • Fact witness generally no • Scientific witness yes • Get your client out of jail yes • Client on bond maybe • Will the state still indict? • New Bond

  10. New Reason for P.H. and Motions in General Sessions • January 1, 2011-change in TN law as to license suspension and Implied Consent; • General Session Judge will decide loss of license on tests and implied consent; • Must be able to negate the proof in Sessions- motions and suppression of evidence. • File the motions and have witnesses to negate proof and P.C. as to tests and I.C.

  11. Thank You! Edward S. Ryan May & Ryan, PLC 219 Second Ave. North Suite 300 Nashville, TN 37201 (615)256-7337 edryan@mayryan.com

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