Penal Code 1118.1 is the motion for judgment of acquittal, made at trial after the prosecution rests. It asks the court to end the case then and there if the evidence is legally insufficient to support a conviction. I am Joel Brand, and here is how it works in a DUI trial.
The text of the law
Penal Code 1118.1. In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal. If such a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right.
What the motion does
A 1118.1 motion is made during a jury trial, most importantly at the moment the prosecution finishes presenting its evidence and rests. It asks the judge to acquit, before the defense even has to put on a case, on the ground that the prosecution's own evidence is legally insufficient to sustain a conviction. The standard is whether there is enough evidence on each element that a reasonable jury could convict. If the prosecution has failed to present sufficient evidence on any element, the court must enter an acquittal on that charge.
The timing is its power
The strategic value of 1118.1 lies in its timing. It is brought after the prosecution has committed to its evidence but before the defense has to expose its own case, and the statute confirms that bringing it does not cost the defendant the right to present evidence if it is denied. That means I can test whether the prosecution actually met its burden, with no downside: if the motion is granted, the case ends in an acquittal; if it is denied, the defense proceeds normally. It is a clean check on the sufficiency of the state's proof at exactly the right moment.
How it applies in a DUI trial
In a DUI, the prosecution must prove specific elements, that the defendant drove, and that they were under the influence or had a prohibited blood-alcohol level at the time of driving. A 1118.1 motion targets gaps in that proof. If, for example, the prosecution never put on adequate evidence that the defendant was actually driving, or failed to connect the chemical result to the time of driving, or did not properly establish the foundation for the test result, those gaps can be the basis for the motion. Where the state's case has a genuine hole, this is the tool to exploit it.
Common evidentiary gaps
Several recurring weaknesses can support the motion. The element of driving is sometimes surprisingly thin, particularly where no officer witnessed the car in motion. The link between the blood-alcohol reading and the level at the actual time of driving can be missing, especially given the timing of testing and the rising-alcohol issue. And the foundation for admitting a breath or blood result, the calibration, the chain of custody, the qualifications of the analyst, must be properly laid; if it is not, the result may not amount to sufficient evidence. I watch the prosecution's case closely for exactly these failures.
Why it is brought even when denied
Even where a 1118.1 motion is not granted, making it serves important purposes. It forces the court to focus on whether the prosecution genuinely proved each element, it preserves the sufficiency-of-the-evidence issue for appeal, and it can narrow the case by knocking out weaker counts even if the central charge survives. Because the statute expressly allows the defense to proceed with its own evidence after a denied motion, there is no tactical cost to bringing it where the record supports it. I make the motion whenever the prosecution's proof is genuinely open to challenge.
Acquittal of some counts
The statute allows acquittal of "one or more of the offenses charged," which matters in multi-count DUI cases. Where a defendant faces several charges and the prosecution proved some but not others, a 1118.1 motion can clear away the unsupported counts even if the case continues on the rest. Trimming the charges in this way can simplify the defense and improve the overall outcome, and it ensures the jury only deliberates on charges the evidence can actually support.
It rewards a disciplined defense
The motion is only as good as the groundwork laid for it. Throughout the prosecution's case, I cross-examine to expose the gaps, keep inadmissible or unfounded evidence out, and build a clear record of what the state did and did not prove. By the time the prosecution rests, the deficiencies are on the record and ready to be argued. A 1118.1 motion is the payoff for that disciplined, element-by-element approach to the trial.
The standard the court applies
It is worth being precise about the test the judge uses, because it shapes how the motion is argued. The court does not weigh credibility or decide who it believes; it asks only whether, viewing the evidence in the light most favorable to the prosecution, there is substantial evidence on each element from which a reasonable jury could find guilt beyond a reasonable doubt. That is a legal sufficiency question, not a factual one. The practical consequence is that the motion succeeds where the prosecution has genuinely failed to produce evidence on an element, not merely where its evidence is weak or contested. My job in arguing it is to identify the element on which the proof is not just thin but actually absent, and to show the court that no reasonable jury could bridge that gap, which is a different and more rigorous argument than simply saying the case is weak.
How it fits the larger defense
The motion for judgment of acquittal is a trial-stage tool that complements the pretrial defenses, the motion to suppress and the challenges to the testing and the field sobriety evidence. See my top DUI defenses and the defenses guide.
Taking a DUI to trial? Let's talk.
Holding the prosecution to its burden, element by element, is exactly how I try these cases. Use the free case analysis on this page, or call me directly at (888) 271-6644. I answer my own phone, 24/7.