Gary S. Bernstein, P.A.

Call Toll-Free: 866-435-2795

Locally at: 410-415-9219

Blog

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.

New client came in on Thanksgiving day after having been charged the night before with a DUI.  She was the designated driver and was out with her sister who was the drinker.  She gets stopped for an illegal U-Turn and is taken to the State Police Barracks that has a camera without audio in the breath test room.  Now the way she looked that evening and her attempts to take the test were important since she could not provide a sufficient sample. She arrives at the barracks within an hour of the stop so her appearance and actions in the room are relevant.  Was she steady on her feet, was she swaying, did she look DRUNK?

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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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