COMES NOW the Defendant, AND requests that this Honorable Court enter its Order dismissing the charge against him herein, and

AS GROUNDS THEREFORE, states as follows:

1. Defendant has been charged with a single count of violating Denver‘s new noise ordinance, section 38-36, Denver Municipal Code, as follows:

“(d) No person shall, nor shall the owner allow any person to, operate a motorcycle manufactured after December 1, 1982 that is not equipped with an exhaust muffler bearing the federal EPA required labeling applicable to the motorcycle's model year, as set out in Code of Federal Regulations Title 40, part 205, Subpart D and Subpart E; or a muffler or muffler system in compliance with Table B.

2. The State of Colorado has a law, C.R.C. 42 - 225, which deals with excessive noise from motorcycle exhaust pipes. Regulation and licensing of motor vehicles is a matter of statewide concern, and state legislation pre-empts any attempt by a municipality (even a “home-rule” city) to legislate on this matter.

WHEREFORE, Defendant prays that the charge against him be dismissed, and that the Court grant such other and further relief as may be just and proper.

Respectfully submitted,

WADE H. ELDRIDGE, P.C.

_______________________

Wade H. Eldridge, #6518

1471 Stuart Street

Denver , CO 80204

(303) 861-4222

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the above and foregoing document was placed in the United States mails, postage prepaid, this ___ day of July, 2007, addressed to Denver City Attorney, 201 W. Colfax, Denver, CO 80202

_____________________________

COMES NOW the Defendant, by and through his attorney, Wade H. Eldridge, and moves this Honorable Court enter its Order dismissing the charge against him, on the grounds that the municipal ordinance he is charged with violating is unconstitutionally vague (on its face), violative of equal protection under the laws, and that the ordinance is being applied to the Defendant in a manner which violates his right to the due process of law, and

AS GROUNDS THEREFORE, states as follows:

INTRODUCTION

Defendant has been charged with a single count of violating Denver‘s new noise ordinance, section 38-36, Denver Municipal Code, as follows:

“(d) No person shall, nor shall the owner allow any person to, operate a motorcycle manufactured after December 1, 1982 that is not equipped with an exhaust muffler bearing the federal EPA required labeling applicable to the motorcycle's model year, as set out in Code of Federal Regulations Title 40, part 205, Subpart D and Subpart E; or a muffler or muffler system in compliance with Table B.

SUMMARY OF THE ARGUMENT

The void for vagueness doctrine requires that a statute sufficiently describe the conduct that is unlawful so that people of ordinary intelligence can be given fair warning of the prohibited conduct. It also protects against arbitrary and discriminatory enforcement of the statute. However, Denver 's new anti—noise ordinance does not provide such fair warning. It makes reference to an obscure section of the Code of Federal Regulations, which a normal individual would have no understanding of. This language is unconstitutionally vague and overbroad.

In addition, the ordinance prohibits operation of a motorcycle with mufflers that exceed the level specified in Table b (82 dB at 25 feet), unless those mufflers have the requisite EPA stamp. If they have such a stamp, they get a free “pass”, regardless of whether such pipes meet the sound level or not. This creates two classes of individuals in an arbitrary and unreasonable fashion, in violation of the equal protection of the laws.

Finally, the manner in which the ordinance is being applied to citizens such as this Defendant violates provisions of the Constitutions of the State of Colorado and the United States of America for several reasons. It purports to authorize a “search and seizure” of the vehicle without a warrant, without exigent circumstances, and without probable cause. It allows Denver police officers to make a stop, and issue a citation, without any objective proof that the exhaust noise from the motorcycle exceeds that prohibited by the ordinance. It leaves enforcement up to the unfettered discretion of the individual officer.

VAGUENESS ANALYSIS

The Ordinance also violates the Colorado and United States Constitutions because it is “vague”. The due process requirement of reasonable specificity serves three valuable societal interests: fair warning of what conduct is illegal; protection against arbitrary and discriminatory enforcement; and where freedom of expression is at issue, protection from the chilling effect of ill-defined restrictions on speech. See , People ex. Rel. Van Meveren v. County Court , 551 P.2d 716 ( Colo. 1976).

In People ex. Rel. Van Meveren v. County Court , our Supreme Court adopted the reasoning of the United States Supreme Court in Grayned v. City of Rockford , 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972), describing these three values that are protected by the void for vagueness doctrine:

"First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute; abut[s] upon sensitive areas of basic First Amendment freedoms,' it 'operates to inhibit the exercise of [those] freedoms.' Uncertain meanings inevitably lead citizens to 'steer far wide of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked." (Footnotes omitted.) People ex. Rel. Van Meveren v. County Court , 551 P.2d at 719.

In People v. Norman , 703 P.2d 1261 ( Colo. 1985), the Court declared a provision of harassment statute unconstitutionally vague. The statute at issue provided that a person commits the crime of harassment if, "with intent to harass, annoy, or alarm another person," such person "engages in conduct or repeatedly commits acts that alarm or seriously annoy another person and that serve no legitimate purpose . . . ." §18-9-111(1)(d), 8 C.R.S. (1978). The Court held that the statutory language contained "no limiting standards to assist citizens, courts, Judges or police personnel to define what conduct is prohibited and, conversely, what conduct is permitted." People v. Norman , 703 P.2d at 1267.

In People by and through Longmont v. Gomez , the Supreme Court struck down as unconstitutionally vague, a part of the Longmont ordinance that contained the following provision:

A person commits harassment if, with intent to harass, threaten or abuse another person he: (5) [e]ngages in any other conduct that in fact harasses, threatens or abuses another person. People by and through Longmont v. Gomez , 843 P.2d 1321, 1326 ( Colo. 1993).

Our Supreme Court found this provision violated the notion of fundamental fairness embodied in the due process clause of the Colorado Constitution because a “person of ordinary intelligence cannot determine in advance whether particular conduct would result in criminal prosecution under [this subsection]”. People by and through the City of Longmont v. Gomez , 843 P.2d at 1326. The Court found particularly troublesome the phrase “any other conduct” as inviting “unbridled executive discretion”. Id . At 1325. The Court further found that the limiting phrase “that in fact harasses, threatens or abuses another” did not save the ordinance form being unduly vague. Id . At 1325. While the phrase does require application of an objective test, its focus on the result of conduct does not provide any advance indication of what particular conduct is in fact prohibited. Likewise, the fact that the ordinance requires that the act be done with the specific intent to harass, threaten or abuse another person did not sufficiently limit the broad sweep of the subsection. Id . At 1325- 1326.

The case law makes clear that to escape a “vagueness” challenge the statute must set forth a readily identifiable objective standard for measuring the proscribed conduct in advance. Even if a specific intent to commit the proscribed act is included in the provision, the provision must still provide adequate notice that the proscribed act is illegal.

The Denver “anti-noise” ordinance is especially dangerous because of the chilling effect the vagueness has on our freedom of expression. Because we can not tell in advance what sounds might “offend” our public officials or neighbors in the street, we are constantly forced to risk our liberty by driving our motorcycles in public. Freedom to travel is one of the hallmarks of our democracy. Being put in constant fear of prosecution under a vague ordinance limits our freedom of expression.

This ordinance violates the notion of fundamental fairness embodied in the due process clause of the Colorado Constitution and United States Constitutions. The ordinance does not set forth a readily identifiable objective standard allowing us to measure in advance what may run afoul of the law. Such uncertainty invites arbitrary and discriminatory enforcement and impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis. The uncertainty of this ordinance also chills basic First Amendment freedoms by creating the fear of prosecution if we speak unpopular ideas that might “offend” our public officials or neighbors in the street.

DENIAL OF EQUAL PROTECTION OF THE LAWS

The clear intent of the ordinance is to limit noise level from motorcycle exhausts. In attempting do so, however, the ordinance prohibits operation of a motorcycle with mufflers that exceed the level specified in Table b (82 dB at 25 feet), unless those mufflers have the requisite EPA stamp . If they have such a stamp, they get a free “pass”, regardless of whether such pipes meet the sound level or not.

The City might be expected to argue that the presence of the EPA stamp on the exhaust proves that the exhaust system meets the sound requirements of the ordinance. However, this is simply not true, as shown by recent sound meter testing performed at Freedom Harley-Davidson (the affidavit of Howard Fistell is attached hereto as “Exhibit A”) and incorporated by reference herein). Indeed, the undersigned has been informed by a representative of Denver 's Department of Environmental Health that tests upon the Harley-Davidson motorcycles owned and operated by the Denver police department showed sound levels (at “redline”) of 81.3 and 81.7 dB. Under the standards set forth in CFR Title 40, Volume 24, Part 205, Subpart D and Subpart E, the accuracy of the sound meters used is within + - 0.5 dB. By this standard, the exhaust noise of the City's own police motorcycles could, at 82.2 dB, exceed the levels allowed by the new ordinance.

Thus, the ordinance creates two classes of individuals: those whose exhaust pipes do not have an EPA stamp (and are thus subject to the sound levels set forth in Table B); and those whose exhaust pipes bear an EPA stamp and are immune from prosecution, whether their pipes are “too loud” or not. This is an arbitrary and unreasonable distinction, in violation of the equal protection of the laws.

UNCONSTITUTIONAL AS APPLIED

In this case, the Denver police officer who charged Defendant with the violation of the Denver noise ordinance advised him to bring in his motorcycle (to “Environmental” Court on Wednesdays), where it would be “tested” on a sound meter. If the motorcycle (presumably with new exhaust pipes) passed the sound test, Defendant would still have to pay $40 in court costs. If the motorcycle “failed” the test, Defendant would be fined up to $500 for the first violation, and more for subsequent violations. (However, a representative (in the Department of Environmental Health) of the City of Denver, Colorado, disavowed this procedure in a recent telephone conversation with the undersigned, the comments of the officer notwithstanding )

Such a procedure, if followed, would violate provisions of the Constitutions of the State of Colorado and the United States of America for several reasons. It would shift the “burden of proof” to the defendant, requiring him to prove his innocence. It would allow a “search and seizure” of Defendant's vehicle without a warrant, without exigent circumstances, and without probable cause.

CONCLUSION

The citizens of Denver , Colorado , may well have a legitimate interest in protecting themselves from excessive noise emitted by some motorcycle exhaust systems. The ordinance presently before this Court however, is unconstitutional on its face, and as applied to this Defendant.

WHEREFORE, Defendant prays this Honorable Court enter its Order declaring the Denver “anti-noise” ordinance unconstitutional, on its face and as applied to this Defendant, and for such other and further relief as may be just and proper.

Respectfully submitted,

WADE H. ELDRIDGE, P.C.

_______________________

Wade H. Eldridge, #6518

1471 Stuart Street

Denver , CO 80204

(303) 861-4222

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the above and foregoing document was placed in the United States mails, postage prepaid, this 17th day of July, 2007, addressed to Denver City Attorney, 201 W. Colfax, Denver, CO 80202, and to Office of the Colorado State Attorney General, 1525 Sherman Street, 5 th Floor, Denver CO 80203

COMES NOW the Defendant, by and through his attorney, Wade H. Eldridge, and moves this Honorable Court enter its Order directing the prosecuting attorney in the above captioned action to specify the exact procedures by which suspect motorcycles will have their exhaust pipes ‘measured' (including whether the sound system meets the type S1A requirements of American National Standard Specification for Sound Level Meters, ANSI S1.4 – 1971; as well as what type of acoustic calibrator, engine speed measurement, anemometer and microphone wind screen will be used;) and

AS GROUNDS THEREFORE, states as follows:

1. Defendant has been charged with a single count of violating Denver‘s new noise ordinance, section 38-36, Denver Municipal Code, as follows:

“(d) No person shall, nor shall the owner allow any person to, operate a motorcycle manufactured after December 1, 1982 that is not equipped with an exhaust muffler bearing the federal EPA required labeling applicable to the motorcycle's model year, as set out in Code of Federal Regulations Title 40, part 205, Subpart D and Subpart E; or a muffler or muffler system in compliance with Table B”

2. The unspoken presumption of Denver 's anti-noise ordinance is that exhaust pipes which bear the EPA stamp meet the noise level specified in Table B. The question then arises, how is the “noise level” of exhaust pipes to be measured? The answer is contained in an appendix to CFR Title 40, Volume 24, Part 205, Subpart D and Subpart E. Reference to those sections in the Code of Federal Regulations shows that there are specific requirements for the testing of motorcycle exhaust systems. Those requirements (copy attached hereto and incorporated by reference herein) include, inter alia,

a) a “sound level measurement system which meets the type S1A requirements of American National Standard Specification for Sound Level Meters, ANSI S1.4 – 1971”; which must be calibrated at least annually

b) “an accoustic calibrator with an accuracy of within + - 0.5 db”, which must be checked annually

c) “an engine speed measurement system” that has steady-state accuracy of within + - 3% of actual engine speed in the range of 45% to 100% of the engine speed (RPM) where peak net brake power (maximum RPM) is developed, as well as Response characteristics such that, when closing RPM is indicate is indicated under an acceleration as described below, actual engine speed is no more than 3 per cent (of closing RPM) greater than the specified closing RPM

d) “an anemometer with steady-state accuracy of within + - 10% at 20 km/h (12.4 mph)

e) “ a microphone wind screen which does not affect microphone response more than + - 0.5 dB for frequencies of 4,000-10,000 Hz, taking into account the orientation of the microphone

3. The undersigned has contacted several people in an attempt to discover the parameters of the proposed testing (including Paul Reidesel, Environmental Protection Specialist, Denver Department of Environmental Health, Division of Environmental Quality) but has thus far been unable to obtain any information.

4. The information requested is essential in order to provide Defendant with his right to effective assistance of counsel, guaranteed by the 6 th Amendment to the United States Constitution.

WHEREFORE, Defendant prays for an order directing the prosecuting attorney to provide discovery, as set forth hereinabove, and for such other and further relief as may be just and proper.

Respectfully submitted,

WADE H. ELDRIDGE, P.C.

_______________________

Wade H. Eldridge, #6518

1471 Stuart Street

Denver , CO 80204

(303) 861-4222

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the above and foregoing document was placed in the United States mails, postage prepaid, this 13 th day of July, 2007, addressed to Denver City Attorney, 201 W. Colfax, Denver, CO 80202

_____________________________

COMES NOW the Defendant, by and through his attorney, Wade H. Eldridge, and moves this Honorable Court enter its Order directing the prosecuting attorney in the above captioned action to 1) specify the exact procedures by which the suspect motorcycles had its exhaust pipes ‘measured' (including whether the sound system meets the type S1A requirements of American National Standard Specification for Sound Level Meters, ANSI S1.4 – 1971; as well as what type of acoustic calibrator, engine speed measurement, anemometer and microphone wind screen was used;) and 2) produce the data showing the circumstances and test results of tests upon Harley-Davidson motorcycles owned and operated by the Denver police Department, and

AS GROUNDS THEREFORE, states as follows:

1. Defendant has been charged with a single count of violating Denver‘s new noise ordinance, section 38-36, Denver Municipal Code, as follows:

“(d) No person shall, nor shall the owner allow any person to, operate a motorcycle manufactured after December 1, 1982 that is not equipped with an exhaust muffler bearing the federal EPA required labeling applicable to the motorcycle's model year, as set out in Code of Federal Regulations Title 40, part 205, Subpart D and Subpart E; or a muffler or muffler system in compliance with Table B”

2. The unspoken presumption of Denver 's anti-noise ordinance is that exhaust pipes which bear the EPA stamp meet the noise level specified in Table B. The question then arises, how is the “noise level” of exhaust pipes to be measured? The answer is contained in an appendix to CFR Title 40, Volume 24, Part 205, Subpart D and Subpart E. Reference to those sections in the Code of Federal Regulations shows that there are specific requirements for the testing of motorcycle exhaust systems. Those requirements (copy attached hereto and incorporated by reference herein) include, inter alia,

a) a “sound level measurement system which meets the type S1A requirements of American National Standard Specification for Sound Level Meters, ANSI S1.4 – 1971”; which must be calibrated at least annually

b) “an accoustic calibrator with an accuracy of within + - 0.5 db”, which must be checked annually

c) “an engine speed measurement system” that has steady-state accuracy of within + - 3% of actual engine speed in the range of 45% to 100% of the engine speed (RPM) where peak net brake power (maximum RPM) is developed, as well as Response characteristics such that, when closing RPM is indicate is indicated under an acceleration as described below, actual engine speed is no more than 3 per cent (of closing RPM) greater than the specified closing RPM

d) “an anemometer with steady-state accuracy of within + - 10% at 20 km/h (12.4 mph)

e) “ a microphone wind screen which does not affect microphone response more than + - 0.5 dB for frequencies of 4,000-10,000 Hz, taking into account the orientation of the microphone

3. The undersigned has spoken with an Environmental Protection Specialist, Denver Department of Environmental Health, Division of Environmental Quality, who advised the undersigned that tests upon Harley-Davidson motorcycles owned by the Denver police Department showed sound levels (at “redline”) of 81.3 and 81.7 dB. Under the standards set forth in CFR Title 40, Volume 24, Part 205, Subpart D and Subpart E, the accuracy of the sound meters used is within + - 0.5 dB. By this standard, the exhaust noise of the City's own police motorcycles could, at 82.2 dB, exceed the levels allowed by the new ordinance.

4. The information requested is essential in order to provide Defendant with his right to effective assistance of counsel, guaranteed by the 6 th Amendment to the United States Constitution.

WHEREFORE, Defendant prays for an order directing the prosecuting attorney to provide discovery, as set forth hereinabove, and for such other and further relief as may be just and proper.

Respectfully submitted,

WADE H. ELDRIDGE, P.C.

_______________________

Wade H. Eldridge, #6518

1471 Stuart Street

Denver , CO 80204

(303) 861-4222

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the above and foregoing document was placed in the United States mails, postage prepaid, this 17 th day of July, 2007, addressed to Denver City Attorney, 201 W. Colfax, Denver, CO 80202

_____________________________

COMES NOW the Defendant, AND requests that this Honorable Court enter its Order requiring the prosecution herein to produce, for inspection and copying at the office of defendant's counsel, all documents which evidence any training given to the Denver police officer(s) who stopped the defendant or who issued him the citation herein, and

AS GROUNDS THEREFORE, states as follows:

•  The Defendant was stopped and charged with a violation of Denver 's new anti-noise ordinance. Defendant contends that he was stopped without probable cause or a ‘reasonable, articulable suspicion” of criminal conduct.

•  On information and belief, Defendant contends that Denver police Department “training materials” may clam to advise officers that any exhaust pipe which the officer believes is “unusually loud” provides reasonable grounds for a stop. However, “unusually loud” is not defined, so the decision is left to the unfettered discretion of the officer.

•  Such materials are also important to determine if the officer has sufficient expertise to testify as an expert under Rule 702, C.R.E.

WHEREFORE, Defendant prays this Honorable Court issue its Order that the prosecution herein produce, for inspection and copying at the office of defendant's counsel, all documents which evidence any training given to the Denver police officer(s) who stopped the defendant or who issued him the citation herein, and that the Court grant such other and further relief as may be just and proper.

Respectfully submitted,

WADE H. ELDRIDGE, P.C.

_______________________

Wade H. Eldridge, #6518

1471 Stuart Street

Denver , CO 80204

(303) 861-4222

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the above and foregoing document was placed in the United States mails, postage prepaid, this 17 th day of July, 2007, addressed to Denver City Attorney, 201 W. Colfax, Denver, CO 80202

_____________________________

COMES NOW the Defendant, AND requests that this Honorable Court enter its Order suppressing, as evidence herein, any evidence seized from the person, or vehicle of the defendant, and any statements made by the Defendant, and

AS GROUNDS THEREFORE, states as follows:

1. The Defendant was apprehended by Denver police officers. Observations were made, evidence was seized, and statements may have been made by the Defendant at that time.

2. Any statements made and/or consent given by the defendant were not made or given after a proper and timely advisement of his constitutional and statutory rights.

3. There was insufficient basis for the warrantless stop, search, seizure, and arrest of the Defendant. There was not a reasonable, articulable suspicion of criminal activity to warrant the detention, search and seizure of the defendant.

4. Any evidence discovered by agents of the police was the fruit of an improper stop, search, seizure, detention and/or arrest.

5. Any observation of the exhaust pipes on Defendant's motorcycle was the fruit of an illegal stop, and was conducted without the Defendant's informed consent. The underside of Defendant's motorcycle cannot legitimately described as in ‘plain view.” Moreover, “reasonable suspicion” is not enough to justify a search under the “plain view” doctrine. as the United States Supreme Court has held: "However, the search was invalid because, as the State concedes, the policeman had only a "reasonable suspicion" - i. e., less than probable cause to believe - that the stereo equipment was stolen. Probable cause is required to invoke the "plain view" doctrine as it applies to seizures. It would be illogical to hold that an object is seizable on lesser grounds, during an unrelated search and seizure, than would have been needed to obtain a warrant for it if it had been known to be on the premises." Arizona v. Hicks , 480 U.S. 321 (1987)

WHEREFORE, Defendant prays that the fruits of the improper stop, search, seizure, arrest and questioning, including, but not limited to, any statements of the defendant, be suppressed as evidence herein, and that the Court grant such other and further relief as may be just and proper.

Respectfully submitted,

WADE H. ELDRIDGE, P.C.

_______________________

Wade H. Eldridge, #6518

1471 Stuart Street

Denver , CO 80204

(303) 861-4222

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the above and foregoing document was placed in the United States mails, postage prepaid, this 17th day of July, 2007, addressed to Denver City Attorney, 201 W. Colfax, Denver, CO 80202

_____________________________