From: "Tom Austin" To: Subject: Microphone on and off Date: Wednesday, March 16, 2005 4:20 PM Folks, Have a DUI trial next week. Let me preface everything with we have a prosecutor for a judge, so I will most likely be appealing if I lose the trial. My man has a one car wreck. Hits mouth on steering wheel. Reviewing roadside tape. First, tape does not come on until my client is almost done with third FST. In other words, I dont get to see anything. Do we have a confrontation problem? Crawford? Anyone made motions for incomplete tape problem? Next, after third test, officer (who is having to ask a lot of questions to experienced officer who has shown up on scene) says stay here, walks away from my man, reaches down and turns off his mic. He comes back a few minutes later, puts my man in cuffs, and 4 minutes after turning off mic, he reaches down and turns it back on. We do not know what was said during that time. Anyone see problems here? Motions for appeal? Next, takes my man to hospital. My man never sees a doctor, only a nurse, but is put down as unable to give breath sample b/c "licensed medical personnel" says he can't. Is a nurse qualified to make this determination and does she fit the defininition if there is one? Prosecutor does not feel he even needs to bring her. Again I see a problem. As an aside, he was never treated. In otherwords, there are no records for treating his bashed in mouth. Finally, I think this is a copy of the tape, not the original because at the end of the tape (always look at these folks, you'd be amazed at what you find) there are a bunch of stops from days PRIOR to my guys stop. Anyone got any great ideas on exclusion because it is not best evidence/original, and obviously this copy is missing some of the incident??? Thanks for your help in advance. Tom Austin