KEEPING THE BREATH TEST OUT OF EVIDENCE IN THE DUI CASE IN MARYLAND

Because of defects in the procedure for the administration of breath tests, I have been successful in having judges refuse to admit DUI breath test results. This requires the knowledge of all aspects of the procedure and how various statutes and regulations intertwine. It took three hours a few weeks ago in Howard County District Court to try this issue, with a result of Not Guilty. The police officer was “certified” to administer the Field Sobriety Exercises, but did not know the procedures outlined in the NHTSA training manual, and substituted his own procedures. It is hard to “fail” an improperly administered test, especially when the NHTSA manual states that their procedures are the only procedures. The Howard County District Court Judge, a former prosecutor herself, had no choice but to enter a verdict of Not Guilty. In argument before the Howard County District Court Judge, I used the example of the facts of our first jury trial against one another to show why the statute why I was correct about the procedure for breath testing. Last week a second case before the same Howard County District Court Judge resulted in a plea to a lesser offense because the same issue was presented. In a trial in Baltimore City District Court, the judge refused to admit the breath test and rendered a Not Guilty verdict. Some Baltimore County prosecutors are not calling the breath technician because they recognize that the Baltimore County District Court Judge is not going to allow the breath test into evidence. Rather than have the entire courtroom and attorneys educated in this defense, it is easier and wiser to try the case without the test. On June 29, 2009 in another Baltimore County DUI the State decided to proceed without the breath test because it was not admissible.  Although the judge learned of the test result for sentencing, it was agreed that it might be inflated because of the procedural problem.  The high result was not held against the client, and he received a Probation before Judgment to the reduced charge.