Gary S. Bernstein, P.A.

Call Toll-Free: 866-435-2795

Locally at: 410-415-9219

Breath Test Suppressed

It is difficult to get trial time in baltimore City Circuit Court, especially for a misdemeanor.  The dockets range in the 20's to 40's and the judge to whom you are assigned is the judge you have to try the case in front of.  The last time this case was in, we were going to have the suppression hearing, but the MDTA Officer's child had a medical emergency.  This time the new trial judge had us come back at 3:30 PM for the hearing.  I was very happy to get something done in the case.

There was no audio as she later learned the unit had a malfunction.  Luckily there was the video. The MDTA officer in this case was just raring to go.  She knew that I knew the HGN was wrong, so she immediately fell on the sword but attributed it to being kind to my upset client. Notwithstanding her conclusion that my client "failed" nearly all the clues on the walk and turn; and one leg stand, the judge did not quite see it that way.  My client showed excellent poise and coordination.  Her driving, other than driving in the lane next to an emergency parked vehicle, was impeccable.  She had no problem with her license or registration, as she had them at the ready when the officer approached.  HOWEVER, the officer volunteered she "could have" fumbled with them before the officer got to the car.  She was full of gratuitous, she "could haves" when the client performed something correctly (held her leg up for 28 of the 30 seconds).  She even gave my client, who had never been arrested before, a "menu" of where she could do the SFSTs.  It was my client's choice what direction she wanted to face or whether to be taken into custody and transported to a station for testing.  It is a kinder, gentler MDTA that is customer service oriented. The officer misquoted the SFST Manual.  When I showed her the 2009 Manual she was not sure she used that one in her 2010 training. I pointed to some pictures and asked if they looked familiar.  They looked the same.  The judge found her to be credible when she stated the most important piece of the probable cause that she left out of her report.  She explained that she does not write all the bad stuff down, though that is really part of the general training of all poilce.  

The judge found no probable cause, and suppressed the breath test.  I have a bunch of issues with this test and a technician I love cross examining, but this Schtick will have to be saved for another day.  Since there was no probable cause, the judge expected the State to resolve the matter with a plea to the minor traffic violation.  The SFSTs and all the observations were great for my client, so how is a jury going to find beyond a reasonable doubt.  The prosecutor was so pissed, she announced we are going to try this in front of a jury in January. The judge called us to the bench and suggested otherwise, and the prosecutor said she has to take the matter up with her supervisors.  Ridiculous.  On the same day, the same unit plead out a possession of heroin, cocaine, and marihuana, where the defendant slugged the police officer and was charged with assault, to a time served sentence (months) and dismissed the violation of probation, so that he walked that day.  There was a discussion about his possible federal indictment on drug charges, so this is one serious dude, but that was not enough to convince the State that maybe they needed to allocate a little more time to his case. He was probably free before we finished the hearing. Whether he was back in "business" last night, I don't know. The Baltimore City State's Attorney's Office did not have time to try him, but wants to spend 2 days trying a case that a judge and common sense says cannot be won. So we will come back in January and it will probably be postponed to March and then maybe to May, and then we might have waited long enough for a trial. By then maybe we will see the assaultive drug dealer back in court for a new arrest.  He probably hopes our case is still around so he can get another free pass.      

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Contact Information

  • Gary S. Bernstein, P.A.
  • 29 W. Susquehanna Avenue, Suite 700
  • Towson, Maryland 21204
  • Toll Free: 866-435-2795
  • Locally: 410-415-9219
  • Fax: 410-823-0610

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