I had an officer on the stand today who did a pretty good job on the SFSTS, but my client is 5′7″ and weighs 265. The officer denied weight could be an issue and then I approached him with the same NHTSA Manual he had for training. I felt like Jack Nicholson in the Shining as he saw the “weapon” approaching. At first he could not be sure it was the same Manual, but then decided better to agree. He then readily agreed that weight was an issue, but he had seen large people pass these exercises. I asked him about HGN causes other than alcohol and he conceded them. The judge was taking notes. I asked if he questioned about smoking and caffeine and he admitted he did not. When I asked why not he could not provide an answer other than he didn’t. It turns out he was also a Certified Breath Test Operator and drove my client to the station with him cuffed in the front seat. He knew my client didn’t eat but could not say he didn’t belch. Once he took him into the station, he said the Breath Test Operator did the test within 5 minutes. Breath Tech agreed with the 5 minute observation and that belching could have occurred that neither he nor the officer would have seen. Home run!? Maybe we are only going to be arguing iffy SFSTs and not terrible driving. I have won with worse. Not a home run when the judge reaches over the fence and catches the ball. To my disappointment he let the test in and client was “guilty by gadget.” The MVA Hearing was continued last week so I have ordered today’s trial tape to attack the 20 minute issue there. Even when you get perfect testimony, if the judge is not persuaded about the legal issue, you loose. Blogs are meant to teach, and you have to teach when you lose as well as win. This is why I prepare every client for disaster. This client is in treatment and got the same disposition as if he had plead guilty 4 hours earlier. Try the perfect case, but be prepared if it is not perfect enough.
Watch them sweat, but beware the cool judge
March 3rd, 2010MVA SUCCESS
January 29th, 2010ALJ took 3 No Actions because of the same screw up in breath test procedure. One police officer admitted it during the Hearing. Got breath test tossed in the actual criminal case 2 days later without an argument by the State.
JURY RETURNS NG IN HARFORD COUNTY DUI
January 15th, 2010Interesting jury trial in Harford County. Obviously the verdict was very satisfying and correct. Jury selection was very fascinating. There were 6 jurors who believed that it was unlawful to have any alcohol and drive. Some were in the 12-step program. When the judge told them that is not the law a few felt that they could not put their personal feelings aside and follow the law. Their honesty was remarkable, as was their resolve against drinking and driving. Needless to say even those who said they would follow the law were not seated on the jury.
One-Eyed Observation
December 11th, 2009Since the top of my head flew off, it has taken me a full week to reattach it. Last week I had the typical 20 minute violation. The client credibly testified (the ALJ actually said he believed all his testimony), as to how the breath technician was off to his right setting up the machine. The client could see his profile and one of his eyes. The ALJ (I can feel my head starting to come off as I type this), said that since my client could see one of his eyes, then the breath technician could be watching him with that eye while using the other to set up the machine. When we say that there are some ALJs that you can never win with, this is the proof.
The Best Lawyers In America 2010
September 11th, 2009Selected by my peers.
District Court Violation of Probation DUI or Criminal- Dismissed
September 9th, 2009The statute concerning VOPs in the District Court (not the Circuit Court) has been a source of contention between attorneys and judges. The statute read that a request for a violation of probation had to be initiated while the defendant was still on probation. Well what happens if the defendant violates the probation on the last day of probation and promptly reports it to the probation officer? Some judges ruled that they were without authority to violate the probation. Others said screw it (not a direct quote) and violated them anyway. In order to cure this problem, effective October 1, 2009, the statute has been amended to allow for VOP charges to be filed up to 30 days after the probation has expired. You don’t fix it if it ain’t broke. I will present this argument along with the new statute, the actual bill with why it was being submitted, the Legislative Summary as to why it was needed to a judge next week. Hopefully, I do not have to litigate this on appeal, and the judge acknowledges that the law means exactly what it presently says. And no, the court cannot postpone the case to after October 1 and claim the violation is now timely (if within the firstl 30 days). This issue generally arose because probation officers would wait until after a probationer was convicted of the new offense to file the violation. In all DWI (old crime), DUI, and Driving Impaired cases a standard condition of probation was and is not to consume alcohol during the period of probation. That alone is grounds for a violation. Had the trial judge been notified of the alcohol related arrest, a violation could have been issued for the consumption and the probation violated. I suspect that is exactly what the judge next week is going to order the Probation Department to do in any DUI case where alcohol is detected, with or without a breath test. I am sure I will live to regret that in the future, but next week’s client has priority.
Probation Dismissed. Judge agreed with the change in the law.
No right to ask for SFSTS
August 26th, 2009What happens if you are stopped for speeding and the officer detects an odor of an alcoholic beverage? He orders you out of the car. Instead, what if he asks you, while seated in the car, to perform the alphabet and count backwards and you successfully complete both? You have also retrieved your license and registration without a problem. You also pulled over immediately and parked appropriately. The answer is you don’t have to get out of the car to perform SFSTS and good-bye case and not guilty. Don’t assume the police always have the unfettered right to ask you to exit to perform SFSTS. That was the second of two not guilty verdicts on Monday.
Insufficient Breath Sample
August 12th, 2009Some people just cannot provide a sufficient deep lung air sample for the Intoximeter EC/IR. Reason? How about asthma and sinus issues. How about the police won’t give the client her inhaler so that she can try to provide a sufficient sample. How about at the MVA Hearing in Harford County the ALJ agreed that it was not the client’s fault and took no action. Great result. Trial is in 2 weeks and I am going to argue that by denying her the inhaler and the opportunity to give a sample, she is entitled to an inference that a test result would have been favorable to her. Depends on the judge as to how much weight this is given. Also have lots of other good issues even though it is an accident case. Win or lose I will try to post the outcome on at least this issue.
Breath Tests and Administrative Hearings
August 10th, 2009In what can only be described as refreshing, Administrative Law Judges have been taking No Action in cases involving a violation of the procedures for breath testing. In a Maryland DUI, there are 3 categories of breath tests. .00 to .07; .08 to .14; and .15 and above. Up to .07 and there is no Hearing. .08-.14 can result in the issuance of a restricted license or a suspension. .15 or above and it is either a flat out suspension or the installation of an ignition interlock. MD allows you to get the interlock installed and a go the the MVA and get a new license within 30 days of the date of the stop (day 1 is the stop date). However, if you opt for a Hearing, it is up to the ALJ to decide the sanction if you lose. Two recent cases involved breath tests in Baltimore County and Harford County where there were obvious procedural flaws. There are 2 approaches to a procedural violation. One is to argue that the test might have been below the present sanction level (below a .08 or .15); or the correct argument that the correct test result is unknown, and therefore no sanction should be imposed. The most difficult ALJ’s accept the latter argument and take no action. It is nice to see the intellectual honesty they display when they reluctantly grant my Motion. These Hearings are supposed to be fair and even though the law favors taking the license, the ALJs are doing what the law requires. Everyone marvels at Justice Scalia’s opinion in Melendez-Diaz, but he was just following the dictates of the Constitution even though the result favored the accused. He was also the 5th vote in setting aside the conviction for burning the American Flag, because that is what he believed the 1st Amendment required. ”Hard” judges are not always unfair judges. Good lawyers want a fair shake for their client, and “hard” ALJs have been making fair decisions when presented with legally and intellectually sound arguments.
This is an Addendum to the original post. Last week an ALJ went nuts fighting me over this argument. He made it a non-issue based on his interpretation of how breath tests are to be administered and the regulations interpreted. Fortunately it was a .10 and the client was relieved to get out of there with a restricted license for 45 days for work, alcohol education, and medical care for his mother. The ALJ went as far to suggest that restricted licenses violate the spirit of an ALJ’s responsibility to the public safety, but since the Legislature put them in he had to grant it if the circumstances warranted it. He dismissed the next case for total insufficiency- no paper work submitted by the arresting police officer. I got a No Action for an insufficient breath test a few weeks earlier with him, so I did not expect the hostility over this issue.
Date Rape DUI
July 22nd, 2009Yesterday in Towson District Court in Baltimore County a client was acquitted of DUI where she was slipped Rohypnol or another date rape drug at a business meeting. She had a complete blackout and had no recollection of driving, SFSTS, refusing the breath test, or events after she was released by the police. The arresting officer was a former EMT and thought she was just like other DUI defendants he has arrested. I had her friend that picked her up from jail and her grandson testify about her condition for the almost day and a half post arrest. She was taken to Patient First the morning of her release but they did not do a Tox Screen. A day later Qwest Labs found nothing. I won the Administrative Refusal Hearing because I proved she was unable to agree to submit to the breath test. The trial judge acquitted on the DUI. On July 17, 2009 at the HuffingtonPost.com there was an article by a woman similarly drugged. This is not an easy defense because the chances of getting a timely blood test is remote. You need witnesses who have seen your client drunk and can distinguish their “drunken behavior” and the “Stupor” Patient First diagnosed. It was easy to defend since I didn’t care about how she performed on the SFSTS or how she was asked to perfrom them. I almost stipulated to the State’s case. It was a fair verdict at both hearings and fortunately the predator was not successful. Must have been too many people around.