Gary S. Bernstein, P.A.

Call Toll-Free: 866-435-2795

Locally at: 410-415-9219

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Client was acquitted today of all charges including the minor traffic charges. It was an interesting case as there was CCTV from the Sheriff's Office video-taping my client leaving a restaurant and walking to his car.  He meanders along is a zig zag pattern so they believe he is drunk and an officer goes out to catch him before he leaves the parking lot.  He is too late so he follows my client who drives exceptionally well with only a drift onto the turning lane when there was no other traffic on the road and the same to the shoulder.  Both of these occurred on curves.  The officer approximated his spped at about 50 in a 40.  He used radar but the prosecutor could not get that into evidence except for probable cause.  There was a battle over the radar, that was a complete waste of time because the case was about the DUI not the speed.  Some fights are not worth it.  The prosecutor is relatively new so I understood why she fought everything, but in the future she will move on.  He pulled into a parking lot where the right rear tire of his truck climbed the corner of the sidewalk.  It was a narrow entrance and snuck on him as the officer turned on his emergency light bar.

Now we had talked about the case because I expected to be trying a jury trial in Harford County starting yesterday but that case was postponed.  We agreed my client did well on the SFSTs and I thought his walking outside the car and standing during the tests rebutted any inference that his zig zagging was alcohol related.  The video did not show the extent of the swaying or slurred speech that the officer testified wrote in his report and testified to on direct. The State decided not to use the video.  The judge asked me if I was putting it in, but I said not yet.  

Because on direct examination- for the third time in recent acquittals- the State left out SFST evidence that was crucial, the judge dismissed the DUI and most of the minor charges, but held in the DWI based on what the officer described about the entire episode from CCTV to the SFST performance.  I called the police officer as MY witness.  I introduced the video and asked him ONLY about the parts where he said my client swayed or his speech was slurred.  He said the swaying was there but the judge didn't see it and the video is the best evidence.  I then had the audio played (it did not work during the SFSTs) when the client was in the police car as the in-car audio worked.  His speech was clear, intelligent, and there was NO slurring of any kind.  Now the State got to cross the officer.  She tried to go into the areas she missed on direct examination that I had pointed out on my Motion at the end of the State's case and the judge sustained my objections because I NEVER came near those areas and her questions were beyond the scope of what she was allowed to ask.  

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It is extremely rare when a judge takes a case away from a jury and acquits the defendant.  It happened last week in the Circuit Court for Cecil County.  This was a DUI involving a high breath test.  The client's career depended on the outcome.  He suffers from an extreme medical condition where whenever he eats, he regurgitates the food and has to chew it again and again. He was just coming from dinner when stopped for speeding.  The receipt from the restaurant showed one beer and all that he and his family had eaten.  He explained his GERD issue to the arresting officer, who told him it was not an issue.  Well, it is an issue!  We hired Ronald Henson, PhD. to testify that the breath machine would basically add the alcohol coming from his stomach into his esophagus to the alcohol from his deep lungs and give an unreliable and high reading.  The mouth alcohol detector, if working, would not differentiate because of the constant amount of alcohol interfering with the deep lung air.  

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Announced today that I have been selected for the 13th straight year.  

This case is the same one my most recent review references.  My client takes Morphine during the day and an Oxy at night because of multiple surgeries. The dosage of each is small as it has decreased over the year since an accident.  His roommate drives with him all the time and the client is fine on the present therapeutic dose.  The client takes the morphine in the AM and then goes about the days business.  The client  goes to a friend's job for a while and then goes to White Marsh Mall for lunch.

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That is the title of the AVVO review from my client.  The arrest was an absolute disgrace.  The client was stopped for an inoperable headlight.  When I got the video, I was so angry I was going to take it to the State's Attorney's Office to show them how absurd the arrest was as well as the client's treatment.  Instead I decided I would teach the officer a lesson.  The prosecutor called me the day before to offer a guilty plea.  I asked him what did she do wrong?  He couldn't answer it except to say he thought he had enough.

I had the judge watched the video before the officer testified so that the trial and cross-examination could proceed smoothly.  The judge was clearly disturbed by what she was.  The officer testified that the client swayed during the HGN.  I said to him I have watched the video ten times and never saw a sway.  He wound up testifying that his eyes are better than the video camera on his shoulder.  I asked the judge if I could get him out to the witness chair to demonstrate. She was too through at that point and basically let me go after the lies.  He had the audacity to "show" that she swayed all the way to the right and then all the way to the left.  She didn't move, much less go where she would have been out of the camera.  He totally butchered the Walk and Turn.  He then wanted to argue with me that even though he instructed her incorrectly and she did as he said, that it was still wrong.  It was her fault that she did it the way it was instructed.  The One Leg was perfect.  

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I got the email today that I have been selected again.  You take nothing for granted and each case is as important as the next.  Each case involves someone's life and maybe liberty.  You want to be one of the Best lawyers in America then you better be the best lawyer in America for each and every client.

Clients sometimes want to create a new reality.  They do this by not telling the lawyer the truth or all the facts.  They hope it gets hidden that way. I tell everyone I need to know exactly what happened..  I am a really good lawyer according to my peers and clients, and I can deal with the worst facts.  I cannot make chicken salad out of everything, but I can keep us from getting splattered with the alternative.  I don't want your family to be embarrassed about what may come out in court.  I can control the narrative much of the time.

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Well for at least the 3rd time I have had a DUI case dismissed with the same officer.  The video did not corroborate his written report.  The prosecutor suggested last week that he put the case on and let me crush the guy so he would learn not to do it this way.  I told him today it was not my job to educate the police.  He said he had already agreed to dismiss the case with the approval of his supervisor. and let me vent for a few minutes before he laughed and told me to relax. 

Had a trial in Essex yesterday that resulted in an aquittal.  The back story is funny.  I am sitting on my patio one Friday night enjoying the autumn air when I hear a BOOM and the power in my house goes out.  I say "some drunk just hit the BGE pole."  Two hours later power is restored.  You know what is coming next.  The following week a new client comes in and explains how he was travelling on Greenspring Avenue when the guy in front of him stopped suddenly and he had to hit his brakes and pull to the right to avoid colliding with the car…..instead he knocked my lights out.  I told him about my comment and he went home and told his wife who also found it hilarious.

There was a video and I thought it helped.  His head hit the windshield and it was a mess.  He had a previousl leg injury and was constantly holding and rubbing his leg (including in the station), so no SFSTs.  He attempted to take the breath test but could not provide a sufficient sample.  He was subjected to sarcasm from the technician who thought he was fine.  The video showed him holding his rib area while trying to blow.  HE HAD A FRACTURED RIB.  I thought the State had "bupkus"- NOT DICK BUTKUS of  Chicago Bears fame.  It is a commonly used Yiddish word for "nothing"- no I do not speak Yiddish either.

The Judge, who is not Jewish, also thought they had "bupkus" and found my client not guilty.  The good news is he has moved south of my BGE pole so the next time a moron stops suddenly in the roadway in front of him, someone else's light will get knocked out.

My client in this case just posted a wonderful review on AVVO.  This client was innocent and had a horrible set of circumstantial evidence that could have caused a conviction.  The police treated her horribly based on what they believed the circumstances to be.  They were wrong.  No video again of the SFSTs and interaction with the client because the Senior Deputy had the camera facing the wrong direction.  There was rear seat video that was exculpatory when you saw the client.  I provided the name and location of the witness who saw the client cold stone sober (0 alcohol consumed) 32 minutes before the stop.  It was a sales person who remembered the client and who emailed me her statement.  I turned the email over to the State and the first contact they had with her was on cross-examination.

Because of the career implications for my client, I turned over to the State her written statement, typed immediately after her release from jail, along with the receipts for all the stores where she had been shopping.  I told the State I was providing Open File Discovery.  You have to be real careful and fully confident of what you are doing when you make that decision.  It was the right decision.  The State introduced her entire 3 page statement and the Judge was able to consider it without her testifying.  Although she was prepared and intended to testify, the State's introduction made it unnecessary.  Whatever benefit they thought they got was completely offset by the totality and detail in the statement.

This was a life that would have been totally totally ruined if there was a conviction. Justice was served and the client can move forward.

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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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