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.
I explained all of this to the jury in my opening statement including telling the the .17 on the breath test. Well as one of the court personnel said later, “the State got dusted.” The trooper got killed on cross-examination, and this is not bragging- as the judge agreed and tossed the case. He agreed that everything my client did other than the SFSTS was PERFECT- too many to list here. He could not remember much else, and what he did remember was wrong. I had him explain that he was certified by the State Police and that he took the NHTSA course using the same manual I had and that we both had the same certificate. Anyone can take the course and get a certificate if you pass. So now he knows that I know how the exercises are to be done. I then pinned him down on his instructions for the walk and turn and one leg stand- which were incorrect. I exposed what he did wrong and he didn’t remember if it was on his training book. When he said, “I don’t have my Manual here,” I said “Well luckily I have mine.” I showed it to him and he agreed he didn’t do the tests correctly and that you cannot grade them on a curve like in high school. Because of the My Cousin Vinny part I will explain later, I could have said, ” I got no more use for this guy” when I finished.
Now to the breath tech. This was his first test ever. Well we never got to cross because the State did not have all the certifications and the judge sustained my objection and would not let the State have a continuance to get them. So now no breath test but THE JURY KNOWS THE NUMBER. The State rests and the judge tosses everything except the Driving While Impaired. I put my clients fiance on the stand to corroborate the only thing left from my opening statement that he was wearing his socks and not boots when performing the SFSTS. I renew the Motion and the judge goes through all the evidence and tosses the during so we have the speeding left. She excuses the jury and he gets a PBJ for the speeding.
Had she sent the case to the jury, I told the judge at the bench that I was going to adapt Joe Pesci’s opening statement in My Cousin Vinny. If you remmber, Vinny fell asleep duing DA Trotter’s opening statement. When the judge woke him up to give his opening he walked up to the jury and said “Everything that guy said is bullshit.” The judge struck Pesci’s opening statement. Wel I had told the jury about a .17- double the legal limit breath test- that they have to now disregard. I was going to remind them about Vinny’s opening statement and the judge’s ruling, and tell them that applied to mine and to disregard it. I figured when they stopped laughing, they would be ok with that “instruction.”
Now the prosecutor who tried the case had it handed to him at 3:30 the day before. There was a voluminous medical record that he spent the night reading. Because he is new to the office, and it was dumped on him, the Deputy State’s Attorney sat in for part of the case- the prosecutor did not need his help as he is a good lawyer. However the ASA who dumped it was/is an asshole. He specially assigned the case to himself in November. I called him beginning in November to go over the issues in this case and he never called me back. Voicemail, messages left with his secretary- no response. I looked him up last week to see if I recognized his face and didn’t recognize him, but saw he was reprimanded after an Attorney Grievance Complaint about false and misleading statements in his campaign to be the elected State’s Attorney for Cecil County. Well the wanna be elected SA did not prepare the case correctly for the rookie prosecutor he dumped it on- after 3 months. I did hear from him at 3:32 PM the day before trial when he called and told me he was dumping the case and doing a different case in a different courtroom. End of call. After court closed the day before trial, he filed a Motion to Exclude the Expert on a totally bullshit basis, that he would have known was bullshit if he had read the medical records that were sent to him in November. The new prosecutor and the Deputy SA withdrew the Motion. This was a complicated DUI and you don’t dump it on a new prosecutor at the last minute, especially when you have assigned yourself to it and supposedly read the medical records, the experts’s report, et… This behavior by a prosecutor is unusual, but the most important thing is that the outcome was correct. My client’s career moves forward.