From: "Francis Bell" To: Subject: Re: Microphone on and off Date: Wednesday, March 16, 2005 4:53 PM first driving, see state vs graves 237se2 584 second 56-5-2953 deals with road and ba tape third 56-5-2950(a) deals with mouth, not sure medical personel needed if mouth injury since cop is otherwise certified as ba operator can say blood in mouth will affect blow results, but dont give up point to bring in medical look at state vs kimbrell 481 se2 456 Francis L. Bell, Jr Bell, Tindal & Freeland P. O. Box 867 Lancaster, SC 29721 e-mail FBell@BTF-Law.com tel: 803-283-8476 fax:803-286-4864 NOTICE: This communication including any attachment is being sent by or on behalf of a lawyer or law firm and may contain confidential or legally privileged information. The sender does not intend to waive any privilege, including the attorney-client privilege, that may attach to this communication.If you are not the intended recipient, you are not authorized to intercept, read, print retain, copy, forward, or disseminate this communication.If you have received this communication in error, please notify the sender immediately by email and delete this communication and all copies >>> tom.austin@simpledsl.com 03/16/05 04:20PM >>> 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