We recently finished a hard fought three day DUI jury trial. The results were mixed, that is, we won certain charges, like the 21-902(a) 1 – NOT GUILTY but lost other charges. It was a hard case because the defendant had a blood alcohol level of .243 secondary to a result of a hospital blood draw following a car accident.
As an aside, hospital blood draw cases without forensic testing by Maryland’s Crime Lab are an entirely different kettle of fish. The rules are different and the state has to jump through many more hoops to prove its alcohol case. If you have a hospital blood draw case, you must be sure that your attorney is well versed in these issues. I will highlight these issues in a subsequent post.
This particular case was interesting because while there was a high BAC reading on the hospital toxicology report, the hospital records were otherwise void of any other signs of intoxication. This was a case therefore that we were optimistic could be won on all charges. We brought in our own toxicology expert to help explain the evidence in the case since the State was going to produce its own expert, Dr. Barry Levine, the State Toxicologist.
The recurring problem that we see as defenders of your Constitutional rights is when the charge is DUI/DWI or otherwise alcohol related, people start turning their thinking caps off.
Most judges are fair and impartial, even on DUI matters, but there are too many nightmare stories of judges, as well a jurors (where one might expect this behavior) that when they hear the letters DUI/DWI, the defendant is considered guilty before the case even begins. DUI stands alone as the red haired step child charge where everybody wants to convict, convict, convict without listening fairly, impartially and intelligently to all the evidence.
It is ironic that so many prominent people stand on their soap boxes espousing the evils of drinking alcohol and driving, yet the act of drinking and driving IS legal. Moreover, the same people that are so tough on drinking and driving turn around and get charged! Just do a Google search on drinking and driving arrests, you will find sports figures, politicians, law enforcement officers by the droves, congressmen, judges, jurors, presidents, and the list goes on and on.
This blog is not intended to condone drinking to excess and operating a vehicle. This blog is however intended to ask judges and jurors (in particular) to approach these cases with a fair and impartial mind. To hear evidence as it is presented and where reasonable doubt exists, to understand that the defendant must be found innocent of the charges.
A DUI charge should not be considered a scarlet letter by jurors. People need to understand this charge is the same as any other charge, if the evidence is not present, then there cannot be a conviction. The other point is everybody can get this charge, and a high number of people in ANY walk of life do get this charge. The reason is, the .08 legal BAC is a misnomer. The real story is there is a zero tolerance policy! As I have previously written, if you are pulled over and LEO (law enforcement officer) smells alcohol on your breath, you are going to be arrested. If you then blow a number of roughly .04 or more, give or take, (depending on LEO’s mood) you are going to be charged with this crime.
Anybody can be, and will be charged, from the President, to law enforcement officers, judges, prosecutors, congressmen, MADD representatives, to you and I. If there is going to be a zero tolerance and we are all susceptible to being charged and left to fend for ourselves in a court of law, it is imperative that all fact finders (judges and jurors) begin treating these cases fairly and impartially as you can never be totally sure which table you might be sitting at in the courtroom.
While writing this entry I am reminded of Governor Eliot Spitzer’s case in New York. This is a Governor and former Prosecutor who has stood on his ethical soap box and espoused venom for unethical behavior for years. He has made many enemies with his unfaltering rhetoric for higher family values, then low and behold, we find out he is actually one of the bad people, a complete hypocrite, and guilty of the very same behavior he has been so critical of. Like I said, we should all be fair in our evaluations of others because you never know which table you might be sitting at.