I just finished a case where the state trooper put the client in front of the CLIENT’S car for the SFSTS. Huh??? The client was tall enough that you could see some of the movement of the head and torso. Otherwise, you might as well have turned the camera off. The client wanted to take the plea to the lesser offense so a jury never got to see this scam. I think it operates the same as if they intentionally destroyed a properly recorded videotape, and intend to make that argument to a judge or jury when the next occasion arises. I don’t think juries are going to like any citizen being treated in such an unfair way by the police. If you have nothing to hide in how you perform your duties, then videotape what you are doing! I look forward to getting another shot at this state trooper.
Posts Tagged ‘Maryland Super Lawyers Criminal Defense: DUI/DWI’
Videotape Scam
Sunday, December 18th, 2011Interlock update
Thursday, November 17th, 2011A repeat offender with breath test of .08-.14 who has a prior .08-.14 in the last 5 years is now interlock eligible without a Hearing. That is because the offender is no longer eligible for a restricted driver’s license. That does not mean that the ALJs are going to interpret this as meaning that they should automatically grant a restricted license to everyone whose prior offense is more than 5 years ago. Quite the contrary, they are more likely to require an Interlock. For the most part, I have client’s like this voluntarily install the Interlock so that they have a track record of success when we appear for the Hearing.
2nd State Trooper whose videos do not match his reports
Thursday, November 17th, 2011Yesterday I was in court where the tape and printed word did not match. But for the fact my client did poorly on 1 of the SFSTS, it would have been a trial. The tape supported a plea to the lesser offense as there was a medical issue surrounding the breath test. A second lawyer had a tape from the same trooper. His client looked like an Olympic gymnast on the tape so his case was dismissed. How can these guys be stupid and arrogant to do this. A different trooper expressed his outrage to me about this behavior. He said troopers like this ruin peoples lives, when they have done nothing wrong. My guess is they are using previously prepared reports and revising the observations. My client spoke so clearly, it was a joke, yet he was deemed to have “slurred speech.” The video and the report will be kept for the next time, as I might as well start a new collection. Innocent people and honest police are the victims of this kind of bogus behavior.
Harford County Not Guilty
Monday, October 17th, 2011Harford County has the reputation of being a tough jurisdiction to try a DUI, especially in the District Court. I have obtained not guilty verdicts in jury trials because I don’t try many of these in the District Court. The last trial in the District Court took 2 days and resulted in a not guilty because of improper charging that only the trial judge and I understood. Two weeks ago, I had a case that I did not think I could lose, no matter who the judge. I sat there a little while and watched most private counsel ask for a jury trial and have their case transferred to the Circuit Court. My trial was not long on testimony, and at the end very short on argument. I contested the HGN because I was concerned the judge would give it more wait than it was entitled to. The case involved a roll-over accident, and possible head injury. I asked the officer if he had seen the Steelers game on tv the previous week. He had and I asked him if he remembered James Harrison of the Steelers being given the HGN on the sideline by the team doctor after he had a collision and struck his head. The State objected, the judge laughed and sustained the objection, but I made my point. With no breath test, no other fields, and an explanation for the accident, the State had nothing. Not guilty and a trip to the Clerk’s office to file an expungement so my client can join the military. The next week, I got a letter from one of the attorney’s who juried out, but stayed to watch my trial congratulating me and telling me how much he liked the football example of the HGN.
Want to get drunk and sit in your car in your driveway with the engine on……
Thursday, June 23rd, 2011be prepared to be asked to take a breath test. Today the Court of Appeals eliminated the defense to the requirement for taking of a breath test, that you be found driving or in actual control of the vehicle on a highway or private property used by the public in general. The exact language is :
“That provision does not limit the “implied consent” to taking a test to those occasions when the police officer stops a driver on a highway or private property used by the public. Rather, that provision merely declares that any person who avails himself or herself of the privilege to drive on Maryland’s public roads or publicly-used private property in general is deemed to have consented to take a test, if detained on suspicion of driving or attempting to drive while under the influence of alcohol, regardless of whether the stop was on a highway, private property used by the public, or purely private property. Because the actual location of the stop is immaterial under T.R. § 16-205.1, the MVA need not present evidence of the location, and the Administrative Law Judge need not make a finding of it before suspending a person’s driver’s license.”
The defense was nearly eliminated in the “Ambrose” case, where the court interpreted the term “private property used by the public in general.” Today they said the language is not a limitation, but just descriptive of what a driving privilege means. I won a lot of MVA Hearings based on my and the ALJ’s misinterpretation of this clause. Not anymore.
CDL
Thursday, June 9th, 2011Many lawyers are having problems figuring out the issues a driver charged with DUI who holds a CDL. AN INTERLOCK IS A SUSPENSION AND YOU LOSE YOUR CDL. A PBJ FOR DUI OR PER SE LOSES YOUR CDL. If you blow a .15 or above take the 90 day hit, and then you get your CDL back! On a refusal take the 120 day hit, and then get your CDL back. I know you have to work, but the interlock is a suspension, and you lose your CDL when you are suspended. Taking the interlock causes you to lose your CDL for a year. The only way to get around the mandatory suspension of the CDL is either a PBJ or a Guilty to Driving While Impaired - 21-902 (b). Sometimes you can give up the PBJ on the DUI if you accept the guilty and the points for the DWI. If you are found Guilty you will receive a letter of suspension offering either a Hearing or that damn interlock for 9 months. You take the Hearing and hope your attorney can convince the ALJ that you could have had a PBJ for the more serious DUI and avoided a Hearing except you would have lost the CDL. Now if the ALJ thinks that because you drive a tractor-trailer and blew a .15 makes you a nuisance and a danger, you will get another suspension. It can be reduced to a days or months, but you have no choice.
“Not one of my better Field Sobriety Days”
Monday, June 6th, 2011Thus spoke the police officer at an MVA Hearing last week. I will have the tape of this admission for the jury trial in Baltimore City. He condensed the HGN exam, because he sometimes does that. He admitted he was not supposed to. Wrong instructions on the Walk and Turn. The best explanation was for the 1 leg stand where he pointed his toe skyward (instead of parallel to the ground), but said to hold it straight out. My client watched him and held his foot the same way- the WRONG WAY. He claimed he had to demonstrate it incorrectly because he was so close to my client that it was for officer safety because he could have been attacked. This was after he searched him, and had 2 other officers standing there watching, and who could have provided “officer safety.” My client is 1/2 of his size. He also screwed up the breath test procedure. I LOST the MVA Hearing because the ALJ said none of it mattered, even though the breath test results were compromised. However, these matter in Court. I was going to hire an SFSTs’ expert for trial, but with the officer’s “confession” there is no need to waste the client’s limited resources. My client’s driver was in the hallway, and when the officer left the hearing room, he and the breath technician were talking about that F…ing, etc…. I was glad to hear that they appreciated my legal work. The breath technician and his involvement in a previous dismissed case is a story for another day.
The Judge had the SFSTs performed on her, she passed, but the police officer failed
Thursday, March 17th, 2011The judge today asked the police officer to perform the tests on her exactly as on the client. On the HGN he held the stimulus so high she had to crane her neck. I showed him the NHTSA Manual and he agreed it was held to high. On the one-leg stand he told to hold her foot up like a Rocket. Once again the NHTSA Manual showed the instruction was incorrect. On the walk and turn the client did the imaginary line perfectly and only missed one step. The client had no other issues except for a wide turn from a parking lot onto a narrow street. The judge found no probable cause for the arrest and the case was over. The police officer was honest and conceded he screwed up. He did not say his NHTSA Manual was different or some BS like that. After the case was over he walked over and shook my hand. He was a gentleman to my client, on the witness stand, and to me. I have commented before that the Baltimore County Police Officers are good, honest people. Just another example of that. To the judge’s delight, even though the HGN was administered incorrectly, she showed NO CLUES- she passed the test.
You are too late if you are reading this
Monday, March 14th, 2011If you are reading this you have been charged with an offense and looking for an attorney. Here is a variable neither you nor I have control over. These cases were not triable. A good search in the first caseand the second client was caught at the scene with the stolen property. What prompted this post was the conversation at a coffee house this morning with the prosecutor in the first case.
This morning I had a sad conversation with a prosecutor whom I like and respect. The client is going to jail for a few months (selling a small amount of weed), and will be on either work release or college release. During the summer, the client will work. When school begins, the client will have 10 days left to serve because, although the client will have earned release credits, they are not awarded until the end of the month. I wanted to modify the agreement (the sentence has not been imposed yet) to reduce the time by the 10 days. The prosecutor said, the client can be released for school so why do it. I said i did not want the school to note it on his school record since they have to agree to allow him to attend (they do it all the time). It would also be easier to start school at the beginning of the semester from home. The prosecutor’s response was too bad, let it be on his school record. I commented the client would like to keep it out of there, and the prosecutor said that the prosecutor was tired of being accused of ruining people’s lives. I told the prosecutor that I did not think that, nor was I implying it, and that the client did not think that when the request was made to me. The client is not receiving a PBJ so this will not be expunged, so maybe there is no additional harm. The problem was the cold stark reality that once you have screwed up your life, you may find little sympathy.
The contrast to this was recently I had another college student who was involved in a Theft. Inexcusable and inexplicable. Caught red-handed. The prosecutor in that case was also dumbfounded by what the client did. The agreement was for a PBJ (can be expunged in 3 years, unless Good Cause for an earlier expungement). Without me asking or even thinking about it while we were waiting for the Judge, the prosecutor walked over to me and said, if the client stays clean for the next year, the prosecutor would agree to an early expungement so he can get a job because he is graduating college this year. A kind and gracious act that was not even on anybody’s radar screen, and would not have been on mine until the probation period was over.
Recent Court of Appeals MVA Rulings
Friday, February 18th, 2011If it was not already hard to win one of these hearing, it just keeps getting harder. The Court of Appeals has recently announced rulings that interpret our Breath Testing Statute- §16-205.1 as requiring a minimum of paperwork that has to be submitted in order to provide a prima facie case. The Sworn Certifications of the arresting and testing officers are enough- even without the test slip. The burden shifts to the driver to rebut this evidence. Well if you have a copy of a breath test result slip with less than the legal limit, you have some evidence. On the other hand, since you will not, the client loses. This law is for the benefit and protection of the public, and the Court is not going to require the MVA to provide much evidence.
In a recent case, there is an indication, that there may not be a right to an attorney in the Administrative setting. If denied a lawyer, the evidence (test or refusal) may be suppressed in the criminal case, but may come in for Administrative sanctions. There is an argument about the confusion this creates for a driver, but that is for the next case before the Court.
I watched a recently argued case on line concerning the “bad faith” issue. It seems the Court might hold that where the officer provides a bare minimum of information, the driver bears the burden of presenting the facts concerning bad faith. I won a “bad faith” case two weeks ago because I had the video-tape not only showing but proving the stop was unwarranted. There is a story behind that, but I may post about it later. It was the first “bad faith” win, and I have done a lot of these. Without the tape, the client is either walking or blowing into an interlock. The criminal case was also nol prossed. It was pretty bad what happened, but the case is not really over yet.