LAW OFFICE OF TAMARA D. BROOKS-PRIMERA Bar # 011811 1005 N. Second Street Phoenix, Arizona 85004 (602) 254-3332 Attorney for Defendant Xxxx IN THE CITY OF PHOENIX COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA STATE OF ARIZONA, ) ) No xxxxxxxxxx Plaintiff, ) ) MOTION TO SUPPRESS ) v. ) ) Xxxx, ) (Assigned to the Honorable ) XXXXXXXXX) Defendant. ) ) The defendant, Xxxx, by and through counsel undersigned, moves this Court to suppress and preclude the State from admitting into evidence the results of any and all statements made by Xxxx in connection with the horizontal gaze nystagmus test administered to him following his arrest. Additionally, he moves this Court to exclude any and all documents, materials, references, statements or any and all other testimony by witnesses or the prosecutor about this test and/or its results. This Motion is based on the Fifth and Fourteenth Amendments to the United States Constitution, Art. 2,  3, 4 and 10 of the Arizona Constitution and the following Memorandum of Points and Authorities. RESPECTFULLY SUBMITTED this _____ day of December, 1993. LAW OFFICE OF TAMARA D. BROOKS-PRIMERA By Tamara D. Brooks-Primera MEMORANDUM OF POINTS AND AUTHORITIES I. FACTS The following facts are those pertinent to this Motion as learned from the police, Mr. Xxxx and the departmental reports. Xxxx was arrested following an accident in which he was most likely at fault. Immediately following the accident, civilians bodily assaulted Mr. Xxxx until such time as the police arrived on the scene. Mr. Xxxx was given field sobriety tests by officers, except for HGN, and arrested. He was transported to the station, read the implied consent form and based on that form, he consented to both the HGN and the breath test. A copy of the form is attached hereto and incorporated herein, by reference, as "Exhibit A". A portion of the form pertinent to this motion reads as follows: Arizona law requires you to submit to and successfully complete a test or tests of breath, blood or other bodily substance as chosen by the law enforcement officer to determine alcohol concentration or drug content. The law enforcement officer may require you to submit to two or more tests. You are required to successfully complete each of the tests. A.R.S. 28-691(A), however, does not require a D.U.I. suspect to take all tests requested of him by a law enforcement officer. It requires only that the suspect give blood breath or urine. It does not require him to submit to HGN tests. After having been read to from this misleading form, Xxxx submitted to the HGN tests. At no time was he informed that this was not one of the specified tests under the Arizona law and that he did not have to take it or lose his license. II. ISSUE Whether misleading advice regarding statutorily required tests violated Mr. Xxxx's constitutional rights? III. LAW AND ARGUMENTS Both the Arizona and United States Constitutions ensure that a defendant cannot be compelled to incriminate himself. Arizona Constitution, Art. 2 10; United States Constitution, Amend. 5. While one may waive this right, confessions are per se invalid and the burden is on the State to show that it was knowingly and voluntarily given. State v. Thomas, 148 Ariz. 225, 714 P.2d 395, 397 (1986). To be considered free and voluntary, a confession must not have been obtained by "any direct or implied promises, however slight, nor by the exertion of any improper influence." Id, citing Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493 (1964). Mr. Xxxx was, however, subjected to that which is prohibited by the constitutional principles. He was improperly advised and influenced by the overly broad language in the implied consent law that untruthfully told him that he must take the HGN tests. Although Mirandized before, these warnings were completely vitiated by the subsequent "advice" from the implied consent form, which informed him he must take all tests given by law enforcement. Equally important to the consideration of this Motion is the Arizona Supreme Court's recent denunciation of the use of an incorrect or misleading statement of law by police to require a D.U.I. suspect to perform a test he might not otherwise voluntarily perform. State v. Juarez, 161 Ariz. 76, 775 P.2d 1140 (1989). An arrestee is not required by law, or otherwise, to comply with directives of a police officer which force the arrestee to incriminate himself. He may refuse to perform F.S.T.s, for example. This right to refuse, however, is virtually meaningless when the officer tells the D.U.I. suspect that he is required by law to submit to and successfully complete a test or tests of his blood, breath or urine, by the officer and if he doesn't, there are dire consequences. The average person doesn't understand which tests he must submit to and those to which he needn't submit. Like the right to consult with an attorney, rendered void by the incorrect advice in Juarez, Mr. Xxxx's right to remain silent and refuse to provide physical evidence against himself, except as provided by law, was obliterated by the incorrect statement of law on the standard implied consent form. IV. CONCLUSION AND REQUESTS For the foregoing reasons, it is respectfully submitted that this Court must suppress the HGN results and any statements which Mr. Xxxx made in conjunction therewith, and preclude any and all reference thereto. RESPECTFULLY SUBMITTED this ___ day of December, 1993. LAW OFFICE OF TAMARA D. BROOKS-PRIMERA By Tamara D. Brooks-Primera Copy of the foregoing Motion mailed/delivered this _____ day of December, 1993, to: The Hon.xxxx Judge of the City of Phoenix Court 455 N. Second Street Phoenix, AZ 85004 City of Phoenix Prosecutor 455 N. Second Street Phoenix, AZ 85004 By Tamara D. Brooks-Primera