Gary S. Bernstein, P.A.

Call Toll-Free: 866-435-2795

Locally at: 410-415-9219

Category: Criminal Defense

Administrative Hearings for .08, .15 and Above, and Refusals – Employer’s Vehicle Exception

I posted to the Maryland Criminal Defense Attorney's List serve the new Employer's Vehicle Exception Form.  Years ago I had  posted the form letter for an employer to write so that the client did not have to ask for a Hearing.  I have been surprised to learn how many lawyers did not know that you did not have to have an Administrative Hearing to get this exception and charged clients to attend the Hearing and ask for the Exception.  They were completely unaware that the statute provided for the client to just have the employer write a letter to the MVA.  You did not and do not need a Hearing!  You merely had to have the employer write a letter that is specifically set out in the statute and take it to the MVA along with the paper work showing the interlock was installed.  You did not need to pay a lawyer- you did not need someone to drive you to and from the Hearing- you did not need someone to drive your car to the interlock installer- you did not need someone to then drive you to the MVA to turn in the paperwork to get the interlock restricted license- and you did not need someone to drive you back to your car.  You could have then and now driven yourself to the interlock installer and then drive yourself to the MVA to get the license.  The wasted attorney's fees as well as the time and inconvenience to the client and the someone who had to do the driving in unfortunate and wrong.

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PBT Not Admissible

While sitting in Howard County last week before my trial a scrum broke out in court over the admissibility of a PBT result during sentencing.  The judge asked my opinion and I explained to her that it is only admissible at the Office of Administrative Hearings on the issue of reasonable grounds.  I was able to pull up the case for the judge and the prosecutor who both took a break to read it before my trial started.  There was a PBT in my case but my client was found not guilty so the State did not attempt to use it.  Sentencing is part of a "court" procedure and the law and the case from our appellate court clearly stats it cannot be brought up.  The prosecutor wanted to use it at sentencing in another case involving a guilty plea to show the judge how drunk the defendant was.  He believed he was only prohibited from using it at trial.

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Howard County Roadblock- Not Guilty

Last week I tried a roadblock case in Howard County.  The prosecutor thought I was crazy to try it and told me I would get a worse result than the plea that was offered, but I thought there were solid issues regarding the roadblock as well as factually regarding the DUI.  Although I did not knock out the roadblock on procedural grounds, I think there is a problem with where they set it up.  The "escape route" is rather difficult and generally leads back to the road where the roadblock is set up.  I don't think most people realize they can u-turn and avoid it because there are no signs to that effect.  Police are waiting to follow those who seek to avoid it to look for any traffic violation to justify stopping the "escapee."

My client refused all testing except the HGN.  He spent 30 minutes with the police officer and exhibited no failure of normal coordination. He initially refused the breath test and then changed his mind, but wanted it administered at the scene- an option that was not available.  The State argued the refusals of SFSTs and the breath test as satisfactory evidence of DUI or DWI but the judge was not buying it.  There was just no evidence of any failure of motor coordination based upon how he drove and parked his car and how he walked and stood with the officer.  In the end my decision was correct and the judge would NEVER have punished my client for this trial.

Domestic Violence Case Injustice

I had a DV case dismissed this morning because the alleged victim failed to appear for the second time.  She should have been charged with assault and therefore required to be there but the system is sometimes rigged against a man.  The facts I am going to set forth are undisputed and everyone agrees what led up to the case.  The man (my client) goes to his daughter's pre-k graduation.  He brings his girlfriend.  The child's mother is outraged that he used one of HIS tickets to bring his girlfriend and calls her best friend from the graduation to get her over there.  This thug comes with her own baby in her arms and as soon as the graduation ends wants to fight my client's girlfriend and is cursing and making a complete asshole of herself.  She attempts to grab the child (not her child), tells my client she will have him shot, and is yelling at the girlfriend "fight me, fight me."  I shouldn't leave out that this thug still had her own baby in her arms while demanding a fight.  

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As a Lawyer it was Embarassing to Watch

Whatever your profession, when someone screws up or is incompetent, it is embarrassing to watch.  You feel like the "civilians" think we are all like that.  Today a lawyer asked a judge before a guilty plea in a DUI to defer sentencing for a few months so the client could start treatment.  The judge advised he does not do that and that they would deal with the lack of treatment at sentencing.  The lawyer then withdrew the guilty plea and asked for a jury trial.  HOWEVER, the client was not charged with DUI, but DWI so he was not entitled to a jury trial.  Even the judge and prosecutor squirmed as they looked to see if any of the charges allowed for a jury trial (penalty must exceed 90 days).  

When the judge and the prosecutor could not find that offense, as the lawyer watched the two of them go through the charging documents, he shrugged and said we plead guilty.  I left at that point.  I spoke to the public defender who was also watching this unfold and she said she felt so embarrassed sitting there. The prosecutor emailed me and told me the defendant went to jail and when released he will be on probation.  The lawyer did not even ask for an appeal bond so the guy will not get out if he files an appeal.  You may get a letter from this guy so be careful who you retain.  

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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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