Tough Times Call For Tough Representation

Photo of Gary S. Bernstein

It is around 2:00 AM when the phone rings and a former client is at a police station taking a breath test.  He tells me he has blown twice and they wants a third sample.  I tell him either one blow was insufficient or the two are too far apart.  He says no the machine is reporting mouth alcohol.  He puts me on speaker and the officer confirms it is the machine aborting.  If my client does not blow again they will consider it a refusal.  Forget about the legitimacy of that conclusion, I tell him to blow again and the machine aborts again for mouth alcohol.

The video of my client is not too bad.  The police officer tries to sneak in the PBT result and admits he knows he is wrong for trying to testify to it.  He is their big DUI officer in Howard County and failed to record the minor traffic infractions.  I am able to explain both of them away.  I argue that if my client refused the test the State would argue an inference that he did so knowing he would not pass.  On the other hand, my client blows 3 times so he should get an inference that he believed he would pass the test.

The judge rewatches the SFSTs and agrees that they were really good under the circumstances and that there is a reasonable doubt on all the DUI charges so Not Guilty.