August 24, 2007

Experience absolutely counts

I was in Prince George's County, Maryland for a DUI trial last week. The Defendant was a multiple offender hence he had a lot riding on the outcome of his case. I approached the prosecutor to discuss the matter, she, in their typical cavalier attitude told me what she wants the defendant to plead guilty to the Drunk Driving charge. I told her, in my typical response attitude, no dice; we're set for trial. The state's police officer is present and ready. The state did have a case and the defendant had prior DUIs so we were not in the best position. However the state had one other thing, a highly inexperienced prosecutor with an attitude!

Many times the prosecutors on these DUI matters are so inexperienced that they don't know what they don't know, better yet, they don't seem to care much. So the trial begins. The prosecutor can't seem to ask an appropriate question, I start objecting. "Sustained!" she opens her mouth to ask another question, objection, "sustained", this went on for some 20 minutes, it was really quite humorous. The prosecutor was trying to get the results of the horizontal gaze nystagmus test into evidence but she didn't have the first clue how to do so under the Schultz case. Objection- sustained! Ultimately, she gave up trying as she was squirming around trying to figure out what she was doing wrong. Then she moved onto other questions in a leading fashion, objection- sustained! This had to have been one of the most fun trials in a long time.

At one point I even offered to help the prosecutor and take her out of her misery. I offered to plead the case to a lower charge that did not involve alcohol. She in her typical prosecutor attitude said "no way", I said fine. The trial continued.... I didn't even have my client take the stand to testify because at the end, the state had proved nothing. I wonder if the prosecutor could appreciate that fact.

When the government stopped rambling on with its nonsense, I told the judge that the state had proven nothing- the judge agreed, the state proved nothing, other than the client was speeding. Verdict: NOT GUILTY!! Client very pleased because he gets to sleep at home tonight.

The message, experience counts for a lot. Prosecutors everywhere put on their attitude that everybody is guilty, but some times, the prosecutor doesn't know how to get there from here. Inexperienced defense lawyers may fall for that crap. Some time experience costs a little more money, but having your case handled properly the first time is priceless when you consider the alternative.

August 12, 2007

Wake up and smell the coffee beans

It's getting a little scary out there folks- come on wake up! I saw a blurb of an article that a DUI attorney in Minnesota successfully petitioned the court for the source code of the breathalyzer machine on behalf of his client. This is a challenging discovery request which, to my knowledge (at the time of this writing) has only been successfully advanced in Florida and now Minnesota. The importance of the source code in Maryland drunk driving breath cases is that the code is the brains of the breath machine that yields a BAC (breath alcohol content) number. The breath machine is essentially a computer with a place to provide a breath sample. Therefore, in fairness to a defendant, one might actually want to know how the computer determines a number in order to know if he is being fairly accused of DUI. Remember, having a drink and driving a car is not enough to be convicted of DUI (well, it's not supposed to be enough).

So I'm reading the short article, and thinking that's progressive and it's good! Then I began reading the comments underneath the article. Most of the comments make sense, they say that the machine is built around a very old computer chip which had run the Radio Shack computer TTRS-80 from twenty plus years ago; the comments say that the code is probably relevant to see how the machine is programmed in order to determine if it is fairly and accurately yielding a number, etc.

However, then I read a thread of comments from that article and a linked article wherein people are missing the mark. They suggest that the machine programming is of no consequence, that the defendant is simply using the discovery as a stall tactic in his case, that if the machine says he's an .08, then he must be an .08. One comment that I had to reply to suggested that "if the defendant took the test, it's because he knew he was guilty!" I was compelled to respond to that comment to help the writer understand that the police coerce suspects into taking the test by threatening them with the loss of their driver's license and with jail! I also explained that in every state, if you elect not to take the test, that you will be summarily punished with enhanced penalties against your driving privilege. Therefore, in the overwhelming number of cases, a breath sample is provided, and in the few cases where one is not, it is generally presumed by the court/jury that the suspect was in fact under the influence.

The downright scary concept was the number of comments suggesting that the magic box is correct and that's that! That the box should not be questioned, that it's a stall tactic to request the code, that if a suspect had a drink then he's guilty anyway, that the defense attorney is merely scrambling to defend the client. This type of thinking is lazy and detrimental to our system of justice, and I pray that it does not represent main stream thinking on this subject. That we should not bother to look at the man behind the black curtain. DUI is a crime, like any other crime it has serious and long lasting ramifications. If a suspect is guilty of the crime, then he's guilty of the crime. But for crying out loud, is it too much to ask that the government, its witnesses and its machines be held to the same scrutiny that we would hold any other criminal evidence?

Why is there an underlying current that if a defendant is charged with the crime of DUI/DWI that he must be guilty? Police have a strong motivation to arrest as many drinking and driving suspects as possible. A suspect can blow a .02 and still be arrested and charged, I know because my client has such a case next week in Baltimore City. If the police have such strong motivation (quotas, overtime pay to appear in court, advancement in the ranks, bonus money as happened in Florida [until many cases were subsequently thrown out] ), we really need to be more skeptical and critical thinkers when it comes to evidence offered by the government in DUI cases, just like we would in any other type of criminal matter.

Continue reading "Wake up and smell the coffee beans" »

August 11, 2007

But I'm not guilty......I have rights!

I can go to dinner Saturday night and have two drinks and not worry about driving home. I won't be drunk and therefore I won't have any DUI/DWI issues. I live in America and in this country we have rights! We are innocent until proven guilty in a court of law, and that applies to all cases, even DUI/DWI cases in Maryland.

Well, you might want to think twice about that. First of all, I have to say it's probably not safe to even have two drinks and drive home; depending on the size and quality of those two drinks; it could be enough to get you in hot water. One drink, one lousy drink is enough to get you arrested, but chances are even in the present climate they might let you go at one. The thing is, if the officer smells alcohol on your breath, that's it, he's more likely than not going to arrest you. Their standard question is, "have you had anything to drink tonight?" You say yes, that's it- field sobriety tests and a ride to the station. You say no, and if he smells it, same result. I (like most DUI defense attorneys) am not an advocate of the field sobriety tests or police coordination exercises as I like to call them. These exercises are engineered for you to fail so I do not recommend to my clients to engage in their exercises, which they "grade" in order to find a reason for them to arrest you.

But anyway, that is not the subject of this entry. This post is about being arrested, blowing below a .08, being charged and going to court. You might find it interesting to note that the world is against DUI drivers, juries and judges are against DUI drivers however, you now have another entity to deal with in court in your pursuit for justice. MADD is now the recipient of a $400,000.00 grant from the Federal Government to "monitor" DUI cases in New Mexico. It is their job to sit in court and "monitor" what the trained prosecutors and elected judges are doing in court with these cases; as if the prosecutors and the judges were not under enough pressure to convict, convict, convict. Did you know that our elected jurists and the government selected prosecutors, who have all earned legal degrees and must have impeccable credentials, require "monitoring" from some third party organization who wishes the Constitution was never drafted and considers defense lawyers protecting your rights as American citizens to be a part of the DUI problem?

I was in court in Howard County Maryland last week on a DUI. I walked up to the prosecutor's desk to tell them we were ready for trial. While I was talking to the prosecutor, sitting right on the desk in front of me was a fire engine red business card stating "MADD Court liaison". I said to the prosecutor, what the hell is this! Right here in our home state of Maryland, MADD is sitting in court and "monitoring" what our elected jurists are doing with DUI/DWI cases. Now we enjoy an open system of justice in America, court rooms are open and anybody is welcome inside to listen. However, I don't recall seeing any other organization's representative at a murder, rape, arson or first degree assault case. They apparently are only interested in making their presence known in DUI cases.

Continue reading "But I'm not guilty......I have rights!" »

August 4, 2007

GERD- Acid Reflux & the DUI breath machine

Another question regarding the ubiquitous DUI breath machine, in Maryland the EC/IR; soon to be replaced by the newer and more advanced EC/IR II. Question: what about if I burped before I blew in the machine? What if I have GERD, acid reflux, or other digestive issues?

GERD and/or acid reflux are medical conditions that cause a person to suffer heart burn types of pain in their chest which often results in belching gaseous stomach contents up through the esophagus and into the mouth. These gas contents can include stomach acid which burns the chest, ie., heart burn, and can include alcohol that resides in the stomach or upper digestive tract.

Ok, so what? There can not be enough alcohol in the upper digestive track to actually influence the alcohol reading on the magic box, right? Consider this: as you know from earlier posts, the machine extrapolates blood alcohol content in the body by measuring the perceived breath alcohol content and then multiplying that number by 2100! Therefore, if the magic box perceives the slightest degree of breath alcohol, whether it be real or as a result of acid reflux, it then multiplies that number by 2100 and the box states that you are drunk. Once the box states that you are drunk, the cops say you are drunk and you have a steep uphill battle to disprove the results of the magic box. Well wait a second, how can a box state I'm drunk and what about being innocent until proven guilty in a court of law? That's a post for another day, but the short answer is- too bad! The government has determined that if a machine states that you are drunk, then that's good enough for them, you are presumptively drunk and the only way off the charge is for you to prove your innocence.

Getting back to the subject at hand, mouth alcohol is correctly perceived to be enough of an issue that the police are required to watch you for 20 minutes prior to providing a breath sample. Their "observation" of you is actually recorded on the magic tape that comes out of the magic box. Additionally, the Maryland toxicology regulations require that there be a 20 minute time period and that no foreign matter be placed in your mouth during this time period, not even water. Any mouth jewelry or removable dental items should also be taken out of your mouth 20 minutes prior to providing a breath sample as these items can and will trap small amounts of alcohol in your mouth which can be detected by the machine.

The point being that mouth alcohol or items that can trap alcohol in your mouth, even in small amounts, can multiply and turn into big problems- unfair problems. Acid reflux can be a serious contributor to these types of problems because if you burp shortly before blowing in the machine, you can unknowingly provide the alcohol either in the esophagus or the mouth that will shortly be delivered in to the machine and factored into the machine's results. This is how you can drink 1 beer and end up in big trouble. This is why Maryland, and every other state's "presumption" of guilt based on a number, typically .08, generated by the magic box is really a bad idea.

Just a word for the wise....