Gary S. Bernstein, PA

Two weeks ago I tried a DUI that had career implications for my client.  The police were very upset about the prospect of a trial and having to be in court all day.  They didn’t like my outlook on the case and asked a “regular” who is this guy Bernstein.  He told them you better watch out he teaches this stuff.  They ask if I am as good as he is and he says “I go to his classes.  He teaches me.”   Talk about setting the right tone.  The “regular” and I were laughing about this, but compliments don’t win cases.  The State did not comply with the Evidence Rules and the breath test was suppressed.  My original offer of a Reckless that was sneered at by the police was now acceptable.  Case ended with a Reckless and a PBJ (no points and no MVA sanctions).  I guess those two police will recognize my name the next time.

There are 2 ways you get interlocked.  The first and most usual is by the MVA- .15 or above, refusal, DUI or DWI conviction.  The second way is court ordered as a condition of probation.  The MD legislature rejected a bill making it mandatory for the court to order an interlock where the defendant was convicted with a .15 or above (this would have prompted more refusals as the court ordered interlock would run consecutive to the one year interlock imposed by the MVA for the breath test or refusal).  When you are removed from the Program because of 4 violations, you can request a Hearing if the interlock was imposed by the MVA (you cannot drive until you win the hearing).  If you are removed from the Program and it involves a court ordered interlock, you may request a Hearing, BUT YOU WON’T GET ONE. The Office of Administrative Hearings believes they only have jurisdiction to adjudicate MVA ordered interlocks, not those involving the Judiciary.  You have to win the Violation of Probation Hearing and have the judge order you back into the Interlock Program.  MVA merely monitors your success or lack thereof for the court’s probation, but does not have a dog in this fight if you violate the conditions, so OAH will not hold a Hearing.  This is a major problem because a Standard Condition of Probation is not to consume any alcohol.  Not 4 times, just once.  If you convince an ALJ that one of the 4 violations is in error, you may get reinstated into the Program.  If you convince the Judge that 3 of the 4 were in error, not only might the Judge not order you back into the Interlock Program,, but you may be violated for the one consumption of alcohol and then face sentencing.  Different rules for the different entities.  This is the only occasion I can think of where you wish you were having a Hearing at OAH.

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.

ALJ 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.  Update on this issue:  Well it is tax day and I was feeling pretty taxed during 2 MVA Hearings.  ALJ summonsed the police officer and breath tech to contradict break in 20 minute observation.  Both fail to appear so I figure I am home free.  Reargue why the 20 minute observation period is important, primarily because of belching and bringing up alcohol from stomach.  I show Judge training manual that advises breath tech to expect cross-examination on this issue.  ALJ says belching is not an issue only eating.  Then asks what is the prejudice of the break in observation period.   I argue unreliability, but do not argue belching up alcohol.  Judge holds that they could not say she did not ingest anything so unreliable and No Action.

Next Hearing involved insufficient breath and the police officer testified that could not say that my client intentionally thwarted the test.  Those of you who believe “cops always lie” don’t deal with very many Baltimore County Police, particularly Officer Strickler.  The officer was asked 3 times by the ALJ if he thought my client was trying not to blow and all 3 times the police officer said he could not render that opinion. ALJ had to take No Action.  Not based on great lawyering, based on honest police officer.  Feels better “winning” that way.  The fact is everybody won today.

Interesting 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.