Jerry Charles Green Lawyerdude motion #9053 won this drunk driving case. See email below.
PO Box 40524 My client/ driver refused to give and blood, urine, or other tests/ samples.
Eugene, Oregon 97404 The prosecutor moved to dismiss this drunk driving case.
541 870 0379 and 888 476 8954 No court appearance was necessary.
carlosverde007@hotmail.com Lawyerdude1989@yahoo.com
Subject: your court case
Date: Wed, 5 Mar 2008 14:50:26 -0800
From: Julie.LENKOFF@CO.Lane.OR.US
To: carlosverde007@hotmail.com
This is to advise you that a motion to dismiss Case No. 210622994, State v. Jerry Charles Green, has been sent to the court. A copy of the dismissal, not yet signed by the judge, has been mailed to you since you are representing yourself. Once the dismissal is signed, the court should send you a copy.
This case will be taken off March 7, 2008 trial docket.
Julie Lenkoff, Legal Secretary
Lane County District Attorney's Office
125 E. 8th Avenue, Eugene, OR 97401
Phone: 541-682-2359 ,Fax: 541-682-3890
This document is : http://www.lawyerdude.netfirms.com/9053.pdf , http://www.lawyerdude.netfirms.com/9053.html and
http://www.lawyerdude.netfirms.com/9053.wpd
List of other actual winning motions: http://www.lawyerdude.netfirms.com/traffic.html
Lane County Circuit Court of Oregon
“Our Mission: As a separate and independent branch of government, we provide fair and accessible justice services that protect the rights of individuals, preserve community welfare and inspire public confidence.”
125 East 8th Avenue, Eugene, Oregon 97401
Hours 8-5 Criminal phone directory: http://www.ojd.state.or.us/lan/geninfo/Phone/phone.htm
http://www.ojd.state.or.us/lan/geninfo/index.htm
Prosecutor and Court Clerk dba
“The State of Oregon”
v
Jerry Charles Green,
Case Number: 210622994
Source: Forrest #6751 Document #9053 Version 1.003
Demand for Court Reporting of every hearing.
Demand for E-transcript of every hearing within 48 hours.
Date: Thursday 6 March, 2008
Time: 1:30 pm
Place: This same court room.
Notice of Motion to Suppress Evidence
To the Prosecutor: Be advised: At the venue designated in the caption, or at such other venue as the court may prescribe, I will ask the court to suppress all evidence in this case as being the fruit of the forbidden tree pursuant to the theory enunciated by the Supreme Court in the case of Weeks. I will be filing other concurrent defense motions before this court.
Declaration and Waiver of Time.
I, Jerry Charles Green, declare the following under penalty of perjury: I waive my speed trial rights as necessary.
Signed Jerry Charles Green ________________Monday, February 4, 2008
Table of Contents:
Declaration and Waiver of Time.
Table of U.S. Supreme Court Cases and 9th circuit federal case cited herein
Points and Authorities in support of my Demand for Suppression of Evidence
No Discretion as to the remedy.
Kernel of this case: Side by side comparison of the driving patterns of Forrest and Colin.
touching the line is not enough to constitute lane straddling
The court has no discretion here. U.S. v Colin is binding precedent and square on point.
Declaration of Traffic Expert: Attorney Douglas Palaschak
Order after Hearing on Motion to Suppress Evidence
I was driving a pickup pulling a trailer on which there was a rented hoisting device. A police car signaled me to stop at around 11:30 pm. I drove a mile further to a safe spot in my driveway. The officer had no probable cause to initiate a traffic stop. His pretext was illegal lane use. This was a pretextual traffic stop. He falsely accused me of fleeing and eluding.
He admitted facts in his report which prove that I did not commit the offense of drunk driving - or any crime.
He did not write me up for that illegal lane usage - his pretext for this pretextual stop.
He did not ask for any papers. I refused to give any body fluids for testing.
The police officer attempted to persuade me to sacrifice those very constitutional rights that are so important during a traffic stop. I declined to give testimony or evidence against myself. In retaliation for my having refused to relinquish my constitutional rights, the officer arrested me. The arrest was illegal; it has been established law for many years that touching the dividing lane is insufficient probable cause to justify a traffic stop.
The arrest was made under false color of law and pursuant to an unconstitutional statute. This statute contains the irrebuttable presumptions that:
1. Those who refuse to testify against themselves must be hiding something and must be drunk; and
2. Those won’t surrender their 4th amendment rights must surrender their right to drive.
The Supreme Court said that I don’t have to give up one right to exercise another right.
Oregon drunk driving statutes are unconstitutional.
"An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection' it creates no office; it is in legal contemplation, as inoperative as though it had never been passed." - Norton v. Shelby County, 118 U.S. 425, Quoting from Marbury v Madison (1803) which is found at http://usinfo.state.gov/usa/infousa/facts/democrac/9.htm Marbury holds that a void act is void ab initio.
This Implied consent statute defies logic. It is transparently oppressive. The supreme court ruled that such an irrebuttable presumption constitutes a denial of due process and is therefore unconstitutional. Authority: Cleveland Board of Education v La Fleur (1974) http://www.lawyerdude.netfirms.com/5877.html 414 US 632, 39 L Ed 2d 52, 94 S Ct 791. Also, nobody can take away my driver license without a hearing and other due process. Authority: Bell v Burson (1971) 402 US 535, 29 L Ed 2d 90, 91 S Ct 1586 http://www.circuitlawyer.8m.com/Burson.html . The state gave me no opportunity to rebut prior to impoundment of my car and imposition of towing charges. I was not offered a prompt post-deprivation hearing.
I am entitled to ignore unconstitutional laws:
“And our decisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license. The Constitution can hardly be thought to deny to one subjected to the restraints of such an ordinance the right to attack its constitutionality, because he has not yielded to its demands." - U.S. Supreme Court in Shuttlesworth v Birmingham (1969) http://www.lawyerdude.8m.com/5091.html 22 L Ed 2d 162, 394 U.S. 147 at page 152, 89 S Ct 935.
All this the police officer did in flagrant violation of the officer's oath to support the constitution which includes the supremacy clause and the due process clause. The officer was congenial and so was I. There was no personal animosity.
This court has no discretion in this case. The holding of U.S. v Colin is square on all fours and is binding precedent in this case. The court must dismiss this case.
Table of U.S. Supreme Court Cases and 9th circuit federal case cited herein
Bell v Burson (1971) 402 US 535, 29 L Ed 2d 90, 91 S Ct 1586 http://www.circuitlawyer.8m.com/Burson.html 1 2
Cleveland Board of Education v La Fleur (1974) 414 US 632, 39 L Ed 2d 52, 94 S Ct 791. http://www.lawyerdude.netfirms.com/5877.html 1 2
Marbury v Madison (1803) http://usinfo.state.gov/usa/infousa/facts/democrac/9.htm 1 Marbury holds that
a void act is void ab initio. “An unconstitutional act is not law; it confers no rights; it imposes no duties;
affords no protection' it creates no office; it is in legal contemplation, as inoperative as though it had never
been passed”.
2
Shuttlesworth v Birmingham (1969) http://www.lawyerdude.8m.com/5091.html 1 22 L Ed 2d 162, 394
U.S. 147 at page 152, 89 S Ct 935.
2
U.S. v Eric Colin (9th circuit 2002) http://www.fu.gq.nu/colin.html 1 Touching the lane divider line is legal. Touching the lane divider line is insufficient probable cause to initiate a traffic stop. Evidence stemming from such a stop must be suppressed. This case is binding precedent in the instant case. This trial court has no discretion. They must dismiss this case. http://caselaw.lp.findlaw.com/data2/circs/9th/0150140p.pdf 2 3
Weeks v. United States (1914) http://www.lawyerdude.netfirms.com/weeks.html 1 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A. 1915 B 834, declared that an illegal search and seizure barred the use of such evidence in a criminal prosecution. 2
Points and Authorities in support of my Demand for Suppression of EvidenceI demand that all the evidence in this case be suppressed pursuant to Weeks v U.S. and its progeny. Weeks v. United States (1914) http://www.lawyerdude.netfirms.com/weeks.html 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A. 1915 B 834. In Weeks the U.S. Supreme Court declared that an illegal search and seizure barred the use of such evidence in a criminal prosecution. The Weeks case is a milestone in American Jurisprudence. The theory of Weeks is so well respected that this Weeks case is cited as authority in Canada and presumably other civilized nations.
No Discretion as to the remedy.
The prophylactic remedy of suppression is prescribed by the U.S. Supreme Court. This court has no discretion. The driving pattern described by the officer is precisely that pattern described by the 9th circuit in the case of U.S. v Colin discussed below. The 9th circuit ruled that this driving pattern is insufficient to justify a traffic stop.
The officer whose name is illegible on the ticket had no lawful basis for arresting me or testing me.
Kernel of this case: Side by side comparison of the driving patterns of Forrest and Colin.
The facts are nearly identical to the statement of the officer in the case of U.S. v Eric Colin (9th circuit 2002) http://www.fu.gq.nu/colin.html http://caselaw.lp.findlaw.com/data2/circs/9th/0150140p.pdf
Jerry Charles Green’s driving pattern is less culpable than the driving pattern reported in the 9th circuit case of U.S. v Colin. Here is the report of the Colin driving pattern with was held insufficient to justify a traffic stop:
”He observed the car drift onto the solid white fog line on the far side of the right lane and watched the car's wheels travel along the fog line for approximately ten seconds. The Honda then drifted to the left side of the right lane, signaled a lane change, and moved into the left lane. Carmichael next observed the car drift to the left side of the left lane where its left wheels traveled along the solid yellow line for approximately ten seconds. The car then returned to the center of the left lane, signaled a lane change, and moved into the right lane. Carmichael pulled the car over for possible violations of California Vehicle Code § 21658(a) (lane straddling) and California Vehicle Code § 23152(a) (driving under the influence).” - the driving pattern reported in the 9th circuit case of U.S. v Colin.
The 9th circuit held that driving on the fog line is not against the law. Specifically it does not provide probable cause to initiate a traffic stop. Specifically the court said:
“Estrada-Nava and Colin's car touched for approximately ten seconds, but did not cross, the fog line and the solid yellow-painted line. The district court concluded on the basis of these facts that Carmichael had reasonable suspicion to stop Estrada-Nava and Colin for lane straddling because "[a] common sense definition of lane straddling . . . includes a situation in which a vehicle's wheels rest on the marking
line." We disagree, and conclude that based on the "totality of the circumstances," Carmichael lacked the requisite reasonable suspicion to stop Estrada-Nava and Colin for lane straddling. [7] As the district court pointed out, neither section 21658(a) nor California case law specifies what is meant by "drive as nearly as practical entirely within a single lane." It therefore is unclear under California law whether a car's
wheels must cross over a line for there to be a violation of lane straddling. Courts in other states, however, that have interpreted statutes similar to, if not the same as, section 21658(a) have held that touching the line is not enough to constitute lane straddling. See, e.g., United States v. Gregory, 79 F.3d 973, 978 (10th Cir. 1996) (holding that an isolated incident of a vehicle crossing into the emergency lane of a roadway does not violate state statute's requirement that vehicles remain entirely in a single lane "as nearly as practical"); United States v. Guevara-Martinez, 2000 WL 33593291, at *2 (D. Neb. May 26, 2000) (interpreting a similar Nebraska statute and concluding that touching, but not crossing, the broken line between two southbound lanes twice in a half mile did not violate the statute's "near as practicable" requirement), aff'd, 262 F.3d 751 (8th Cir. 2001); Rowe v. State of Maryland, 769 A.2d 879, 889 (Md. 2001) (concluding that "momentary crossing of the edge line of the roadway and later touching of that line" was not reasonable suspicion to justify traffic stop); State v. Caron, 534 A.2d 978, 979 (Me. 1987) (holding that there was not reasonable suspicion to justify a stop because a vehicle's "one time straddling of the center line of an undivided highway is a common occurrence"); “ - the 9th circuit in the case of U.S. v Colin (2002)
The remedy for illegal search and seizure is clear. It is that prophylactic remedy of suppression.
The court has no discretion here. U.S. v Colin is binding precedent and square on point.
The rule of U.S. v Colin was established law long before the Colin opinion of 2002 and long before the illegal search and seizure upon the body and automobile of Jerry Charles Green on April Fool’s day in 2004.
We demand that the evidence be suppressed and case dismissed.
Signed _________________________ Jerry Charles Green Date: Monday, February 4, 2008
Declaration of Traffic Expert: Attorney Douglas Palaschak
I, Douglas Palaschak, declare the following under penalty of perjury: I have been a licensed lawyer for a quarter century. I specialize in constitutional law, bankruptcy, and traffic tickets. I know Jerry Charles Green personally. When he told me about his case I immediately recalled the 9th circuit case of U.S. v Colin because it is square on point and binding precedent. This case must be dismissed. I publish the case on my website. Signed by Green with specific permission of Palaschak:
Attorney Douglas Palaschak__________________ Monday, February 4, 2008
I , Jerry Charles Green, hereby declare the following under penalty of perjury:
Today I served this document #9054 upon the prosecutor in this case by personal delivery to his office.
Signed: Jerry Charles Green__________________ Monday, February 4, 2008
Lane County Circuit Court of Oregon
125 East 8th Avenue, Eugene, Oregon 97401
State of Oregon
v
Case Number:
Order after hearing on motion to suppress evidence.
Order after Hearing on Motion to Suppress Evidence
I have considered the arguments of the parties. I hereby rule that touching the divider stripe is not sufficient probable cause to justify a traffic stop. I find that touching the divider line twice was the only justification for the traffic stop in the instant case. This driving pattern is insufficient to justify a traffic stop. The traffic stop was unjustified. Following the rule of Weeks I now order that all evidence stemming from this traffic stop shall be suppressed. The case is hereby dismissed with prejudice.
So Ordered _______________________________ Date _________
Judge, Lane County, Oregon
impunity in the exercise of the right
may ignore it and engage with impunity