Gary S. Bernstein, P.A.
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Locally at: 410-415-9219
It is nice that it is now 9 years. I was the first designee in 2007. Still means nothing unless you do the work for the client.
If you read my previous post about the lying rookie and his trainer, you understand what the title means. The other day, I return to the same courtroom, but this time the MDTA officer was experienced and the trainer was the breath tech. Another good video that did not jive with the written report. My client looked great. No SFSTs because of physical injuries. No bad driving because he pulled over, as the law requires, and was on his cell phone.
The prosecutor, who is very smart and very good, asked if I was going to school her in DUI as we talked about all the problems in her case. When the MDTA duo arrived she told them she wanted to speak to them after checking everyone in. Meanwhile, she had heard about the last case as had the supervisor who got involved in this case. While they were waiting to speak to her, the arresting officer looked around the room, and asked if I was "Bernstein" or "Mr. Bernstein." I stared at him and nodded yes. He did not seem comfortable. The ASA asks if there is a middle ground and I say Negligent Driving, even though he was stopped on the shoulder. That does not fly and an hour later we discuss Reckless, which is 6 points here, and I am not sure of the points in the State my client is licensed in. He wants the DUI charges gone and expunged. He takes public transportation to work and wants to be able to get into Canada with minimal problems. We did a seminar on difficulties getting into Canada with a DUI, even a PBJ. Too ridiculously complicated to discuss here. I tell him no, but he is the client and he says yes. I tell the judge, the plea is over my vigorous objection, and he laughs and gives him a $100.00 fine. Everyone is happy, except me, because I wanted to try the case. I waited 2 days to see if my feelings changed before I wrote this, and they have not. The officers got let off the hook. The trainer's bad habits will never change, and I now have a breath test report to use when we get to try a case. Pretty soon my truck will have 60 instead of 50 pounds of law, and the additional weight will be MDTA videos and reports.
I see a new client yesterday, the daughter of a former client. I did not remember the specifics of his case or family dynamics, but remembered his wife was very unhappy with his arrest. He tells me that she is going to be angry that I will represent their daughter because she was angry with what I did in his case. I tried to win it and would not plead him guilty so he could be punished! She wanted him beaten like the assassin did to himself in the DaVinci Code. When they left my office, the client was going to inform her mother of the charge and me. She called me later and said, she was supervised how well her mother took the new of the DUI. Me, not so much. She was calling her divorce lawyer to get a recommendation from him for a lawyer, who I guess would screw her daughter over. Meanwhile the letters from the advertisers are going to once again come to her home. Since they all promise victory and have never tasted defeat, she probably won't want one of them either. The case is triable and might be winnable. It will be a damn shame if this mother cannot see her daughter convicted and on probation. For her, there would be no justice. If she gets angry enough to come to this site and reads this, I just want to say: Thank you for the compliment, and I hope to majorly disappoint you.
There are really not that many police who you catch in a lie. Most are honest and let the chips fall where they may. The ones who do lie are cynics who have become disillusioned and just want everyone they suspect of a crime convicted. When you are this way on what might be your FIRST case, there is a major problem. When you are accompanied by a veteran officer who is training you, it is a bigger problem. According to the police report, my 285 pound client is stopped for crossing the shoulder line 4 times. When the rookie officer, hereinafter referred to as "rookie" comes to the car he smells a strong odor of an alcoholic beverage. My client's speech is slurred and once out of the vehicle he is staggering and swaying. All of it is bullshit!
On the first trial date the rookie brings a video that was not given to the State. We postpone the case. I get the video, and then the top of my head nearly explodes. My guy is close to the line and maybe on it, so I attribute the crossing the line to semantics. After the rookie returns to the police car with my client's license and registration, he is asked by the "trainer" what he detected at the car. The response: he told me he had 2 beers, " I DID NOT SMELL IT ON HIM." Now I had a witness about the 2 beers being consumed around 4-6, and my client visiting with his parents from 6 to midnight (no beer there). After he lumbers out of the car, he stands perfectly still during the HGN, no swaying nor staggering. He is able to do the SFSTs but had to raise his arms because he is the size of an offensive lineman. He even spoke to the officer about his size and trying to do these. NO SLURRED SPEECH. Total under penalty of perjury lies.
I debate calling and finding out who the new trial ASA is going to be and telling him about this, or just trying the case and blowing this asshole up. No surprise I opt for the latter. I get to Court and I am the only one there when the ASA shows up. He is a really good and fair guy. I have a retired Judge who was a former ASA to hear the case and know he is going to be pissed. I walk up and tell the ASA it is a trial. He looks at me with a "Huh" look and asks why. I ask him if he saw the video. He says he did not watch it and sees the look on my face and says maybe I should have. He asks if I will play it for him and show him what is wrong. I tell him the cop is a liar and he and his trainer should be off the force. I have him look at the police report and compare it to the video. He looks at me like he is sickened by it and tells me to wait. Meanwhile the line is now out the door and the liar is about 5 people back. When he comes up, he is so young that you think you can smell Desitin as he passes by. The prosecutor talks to him for a minute and he walks back with the look of a moron on his face. Just before the docket starts the "trainer" rolls in. He gets to sit next to the ASA while he "splains" it to him (i.e. Rcky Ricardo splaining to Lucy). The "trainer" claims that at some time after the arrest they went over things with the rookie. I didn't see anything in writing from the rookie or the "trainer" that a perjured Statement of Probable cause was filed. There was no correction by either of them. Perhaps the trainer thought the defense lawyer was going to be one of the advertising letter writing pall bearers who would not ask for nor look at the video, and just roll in and plead the client guilty and beg for a PBJ. Are you f…..g kidding me, that he was that arrogant to think he and his trainee could get away with it.
The client got a nol pros and I should have held out for the two "fine" MDTA officers paying the $30.00 expungement cost. I told the ASA the video was staying on my IPAD and the perjured police report in the 50 pounds of law in my trunk, for the next time this rookie locks up somebody I represent. I do not know if he intends to report it, or prosecute it. If these guys want to be old-time "toll police" put them in a booth. However, you better have exact change when they stick their hands out. Meanwhile they better be carrying a Depends and a tube of Desitin the next time they have a case with me, because it is going to be a bit uncomfortable.
I tried a DUI in Howard County this morning. There was a video…..sort of. Because of trooper's vehicles being hit by inattentive or impaired drivers, they are no longer allowed to do the SFSTs in front of their police car where their in-car video captures the testing. This applies even when there are two police cars and the second car is protecting the car with the video. This happened today, and the answer was the SFTSs still have to be in front of the client's car. Instead the SFSTs are performed in front of the client's car where everything except the HGN is almost impossible to see. You can see whether your client walks straight on the walk and turn test or hops on the one-leg stand test, but it is not easy. In this case the audio was inoperable. Without the limited video it would have been a guilty based on the trooper's recollection.
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