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.

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.

There are recent cases out of Florida and now Illinois with cops making up evidence in order to arrest innocent people and charge them with DUI. In fact, an officer in Illinois was recently sued by a citizen that was arrested and charged with DUI as he left an establishment and prior to driving his car. He was given field sobriety tests at the station and they were inconclusive. He sued and the cop was suspended for a day and subsequently placed on a desk. Many of the cops cases were dismissed.

I have defended persons charged with DUI after having blown a .04 and in one instance a .02! The .02 was quickly dropped in court and then changed to a drugged driving charge (with no evidence whatsoever) and then subsequently dropped all together in a subsequent court appearance.

Ask a Cop, there are no quotas for DUI arrests, but the overwhelmingly aggressive attitudes towards citizen drivers says otherwise, especially when it comes to BAC numbers less than .07. The law may say the legal limit is .08 but I can surely attest to the fact that the police utilize a zero tolerance policy and arrest on any number and let the court and the lawyers sort the details out later after the arrest, embarrassment and all the attendant circumstances. After all, while your number maybe low- but after attempting field sobriety tests on the side of the road, under close "objective" police scrutiny, there will plenty of evidence with which to attempt to convict you.

Bear that in mind next time you have a drink with dinner and think you are OK to drive. Remember, there is no legal obligation to perform roadside agility exercises and if you do, you perform at your own peril, under dubious circumstances, before a biased audience.

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.

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.

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.

The point is, now that MADD is being paid very significant money to "monitor" court proceedings and even in those localities, like Maryland where they may not be receiving big money, (yet), I wonder if there is any influence being exerted on our elected Judges sitting on the bench or on the government prosecutors hearing these DUI cases?

Next time you are contemplating being an American, having legal rights, and being innocent until proven guilty in a court of law, you might wish to think twice.

For me, it's one drink and that's it....

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....

What's interesting is that when the average person hears the words DUI or DWI they might think this area of the law is not as complicated as others or that this is an easy field, they might not understand that this area is a sub-specialty unto itself. The truth of the matter is, the more one gets involved with seriously defending persons charged with DUI and DWI, the more one appreciates that this truly is a specialty of criminal law. That is, there is so much information to stay abreast of regarding the constitutionality of vehicle stops, the reasonableness of pre-arrest investigations, including field sobriety tests, and the legality of post arrest testing, including breath testing and blood testing. Interestingly, both breath testing and blood testing in DUI and alcohol related cases are very expansive in that they spill over into a variety of other sciences.

The breath test machine, as has been discussed in earlier entries, is effected by such things as the suspect's partition ratio, which the machine takes for granted at 2100:1 and many times is simply wrong, the suspect's hematocrit level, which the machine does not even take into consideration, the suspect's breathing pattern which the police are all to happy to help you with, the machine's built in error rate and on and on. You will recall that the machine essentially operates by taking a breath sample and shining a light through the sample and evaluating how much light comes out the other end of the magic box.

Conversely, with blood draws there are a number of issues including hematocrit, pre-absorption versus post-absorption, venous draws versus arterial draws, hospital draws versus police draws, vials used, preservatives in the vial, storing conditions, custody, etc. They involve many issues involving an understanding of science.

If a DUI lawyer is to provide the best defense possible to a DUI/DWI suspect, that lawyer needs to have a firm grasp not only on the constitutional issues which he learned in law school, but on the scientific issues which are learned outside of law school at continuing legal education seminars and various text books on the subject like Larry Taylor's Drunk Driving Defense, presently in its 6th edition. For me personally, I believe it's important to continually stay fresh on the latest scientific articles and research in the fields that effect DUI suspects. I have just now returned from the National College for Drunk Driving Defense Lawyer's annual continuing legal education seminar at Harvard Law School where I am reminded that the police and the court system are very happy to accept evidence as presented by the government and draw the expected conclusion; however, if that is not consistent with what a client needs, then the lawyer must be prepared to and capable of pulling back the black curtain in order to expose the scientific truth. Knowledge of the science is the truth, the truth leads to fair and equitable results in the defense of DUI cases.

Some important thoughts to baer in mind regarding late night driving and DUI are 1) the cops are on heightened alert because it's nighttime. When the sun goes down the police ramp up for more stops and more DUIs. They go out of their way at night to pull people over for any infraction, such as a burnt out tag light, high beams on too long, driving 5 miles over the speed limit, touching the shoulder line of the road, etc., in order to effectuate that stop.

2) Once they pull you over, even the faint odor of an alcoholic beverage will get you in trouble for drinking and driving because once they smell it, you are likely going to be arrested. The police officer's favorite question is: have you been drinking tonight? You lose no matter what you say. "Yes, I have been drinking, I had a beer at the restaurant." Busted, you are going to the station house because you admitted to consuming alcohol and they won't believe what you told them. Or, "No officer I haven't had anything to drink tonight." Busted, he knows you are lying because he can smell it on your breath. Either way, you lose.

Now, the fun is just beginning! Your body keeps its own internal clock, it's called a circadian rhythm. This internal body clock, according to researchers can effect your ability to engage in mental and physical exercises at night such as DUI roadside field sobriety tests. Therefore, when you are most vulnerable to attack by the police secondary to it being late at night, or being tired, or driving a long distance, the police are on high alert to look for you. Mix that with only one beverage and you have a recipe for disaster. Under these circumstances there is little chance, if stopped, that you won't be charged with a DUI even if you blow under Maryland's legal limit for DUI, which is .08. Remember, according to a recent conversation I had with a Maryland State Trooper, "If we hook 'em, were going to write 'em." That means, if you are arrested for the crime of DUI, it is highly likely you will be charged even if you blow under .08.

For me personally, if I'm going to be on the road for a while or driving late at night, I don't consume any alcohol at all. It seems to me that's the only way to assure that you make it home on time without a detour to a police precinct. The bad news is this is basically a defeatist attitude where the government and MADD get what they are pushing for, complete abstinence on the nation's highways, but the good news is, it is a safe alternative.

Bruce Robinson
Defending DUI matters in Maryland

Anyway, in court the suspect's attorney elected not to try the case based on these facts. Instead the attorney simply plead the defendant out to a guilty charge and it was over. The client was placed on probation and had to complete all the requirements of same and may or may not have even known what type of case he had. (By the way, while in the process of pleading the case out the attorney engaged in a loud and heated argument with the judge's bailiff on two separate occasions. The judge was very nice, a different judge may have knocked the lawyer back on his heels for this type behavior.) Frequently when I'm in court I'll see cases that are plead out that really should not be. Cases where client's plead guilty but instead should plead not guilty and should fight their case. Many cases can actually be won if an effort to fight is made. That is, if you do not fight, you cannever win.

The point of this entry is that you really need to know something about the attorney you are hiring. You need to be prepared to spend a descent amount of money for fair representation. That is, if you do not pay enough to be represented, you won't be, you will just be plead out. Now sometimes a good result may be reached by pleading, there is nothing wrong with that if 1. there is a decent deal on the table and 2. you don't have a decent defense. But in cases like the one I saw today, there was a decent defense and it should have been tried. Heck, if the attorney lost the case, he would have ended up right where he started and at least he would have taken a "shot at the ring" on behalf of his client.

I had a DUI case with this very same judge earlier this year. My facts were much worse in that my, under the age of 21 client, had an accident, there were drugs found on him and he blew a .15. I tried my case before this judge and got the drugs suppressed and I kept the .15 out of evidence. Result: Not guilty of possession and not guilty of DUI. My point is- one has to be ready to fight in order to accomplish anything worth while.

Anyway, here are some useful thoughts when looking for a decent Maryland DUI Attorney:

1. Research the lawyer, check the Internet thoroughly. Read about the person, what they have done, what they have written, what testimonials have been written about him, how much DUI do they do. Compare that lawyer's website to other DUI defense sites. Look at what's written in the site, the content of the information and what other things are reflected in the site. Is there one page regarding DUI or voluminous pages? Is DUI defense a sideline or is it the attorney's primary business. One way you can tell if the attorney is seriously invested in DUI defense is if he is a member of local and national organizations for the defense of DUI cases.

2. What is the lawyer's ability and tendency? Do most of the cases get plead out or does he like to try cases? Does he know how to try cases? Will he let the government push him and you around?

3. Is the lawyer charging a reasonable amount of money for what you want him to do? There are bottom basement fees out there and if that's all the money you have to pay, that is fine, but if you have the means for a proper defense, then you should find an attorney who charges you an adequate and reasonable amount of money to provide you with a proper defense. You really do get what you pay for, that applies in life and it applies in selecting an attorney.

4. All attorneys are not equal. Do NOT select an attorney simply based on convenience of location. Select an attorney based on quality of representation and skill. This is a DUI charge, it carries jail time and significant points, enough to get you in very hot water! It can have very long term and lasting ramifications on your license, your work and in your life. You should consider retaining counsel that does this work all of the time and knows how to defend, knows when to hold 'em and when to fold 'em. You can't have a feel for that if you do not know the nuances of DUI law and how to apply it.

5. Lastly, if you find a lawyer who is willing to call you back on the weekend, let alone see you on the weekend, for your convenience, that lawyer is probably invested in you and your case. If he meets the criteria enumerated above, that lawyer is probably a pretty decent choice to help protect your rights and your liberty in this important matter.

Bruce Robinson
Maryland DUI Defense Attorney
Helping clients in Baltimore, Howard, Anne Arundel, Frederick and surrounding counties.

I must say the degree of enthusiasm and the extent to which the government machine is willing to sacrifice our legal rights strikes me as rather ironic when considering the large variety of people who actually get charged with DUI cases. That is, the very law makers who seek to limit your rights and place the iconic letter on your back are also the very same law breakers. Starting with the President, charged with DUI, police officers, prosecutors, law makers, countless congressional representatives, doctors, lawyers, and Indian chiefs. A Google search on the topic would reveal countless DUI cases involving any group, for example today, July 4th, 2007 the Chicago Tribune has a piece on a police deputy stopped for suspicion of DUI and wouldn't you know it, there was a prosecutor in the car with him. The story continues that they were processed and released without charges. Whoops, somebody forgot to charge the police deputy with DUI, how could that happen? Now everybody is suspended and it's all being reviewed for procedural errors which they admit occurred.

How about the Delaware State Representative who was pulled over in December 2006 and flashed his legislative I.D. card and was released without charges by two Ocean City Maryland police officers-whoops. It's just more than ironic, perhaps hypocriticalthat everybody wants to hammer the DUI suspect, limit their rights, convict as quickly as possible until it happens to somebody in the spot light or somebody with some authority, then it's time to drop charges, run the other way, and turn the other cheek.

Not concerned about your rights yet? Alright. You are driving home from dinner on Friday night, wife and family in the car. You are driving perfectly because you not impaired. You had a glass of wine with your dinner, maybe two. You are herded into a police sobriety checkpoint or road block which is set up on the road you take home. After sitting in a backed up traffic line for 5-10 minutes while the cops engage each driver in conversation, it is your turn. You are not concerned because you are not drunk. Good evening Sir- have you had anything to drink tonight? Your heart jumps into your throat, you know you are not drunk or impaired so you answer truthfully, a couple of glasses of wine with dinner. Sir can you please pull over to the side for field sobriety tests.... guess what? Unless you are a gymnast you are going to jail right now, in front of your wife and children who are horrified. You are going to be charged with a DUI, you have to hire a lawyer, go to court, complete an alcohol class, be on supervision and pay all kinds of money for lawyers and, you guessed it, government fees and fines.

Why? You only had two glasses of wine at dinner, you were driving fine how could this happen? Heck after taking you to the station you only blew a .06 which is below the legal limit of .08. What happened? Well in today's climate nobody gives a darn. If you admit to drinking alcohol you will be stopped and asked to do field exercises. If you perform those exercises, you will undoubtedly fail them because they are foreign to you and you are nervous and scared. Once that happens, you are going to be charged no matter what, whether you blow a .04, .08 or more. I know because I see it every day. I had a lady involved in a serious single car accident who blew a .04, she had wine with her Mother over lunch. She was charged. I got her off the charge, but she still had to go through all the emotional turmoil and expense of the process.

The point I want to advance here is that 1) this can easily happen to any person any time no matter who they are- unless you just do not consume any alcohol and more importantly 2) this should not happen at all and here's why.....

The problem is that the Supreme Court of the United States saw fit to condone this type of warrantless intrusion known as a sobriety check in the 1992 case of Michigan v. Sitz wherein the Court essentially held that notwithstanding the fact that this type of stop is a breach of the 4th amendment, the calling of limiting DUIs is sufficiently important so we shall side step the constitution. This is an example of your rights being eroded right under your nose. If this does not concern you, it probably will when it actually happens to you. For more information on this topic read this http://www.foxnews.com/story/0,2933,171383,00.html fox news article.

A client came in to see me and said the "the officer told me to hold my breath and blow hard into the machine until he tells me to stop." The officer actually went so far as to write these instructions down on the DR-15A officer's certification and temporary license. I must say, I have never seen that written down before. The officer may not have even known what he was doing, they may just be trained that way, but here is the result of that action.

There have been a number of scientific studies which have determined that the breathing pattern of a driver absolutely impacts the resulting number. Accurate Measurement of Blood Alcohol Concentration with Isothermal Breathing. 51(1) Journal of Studies of Alcohol 6. If a driver holds her breath for 30 seconds before exhaling she can unknowingly increase her BAC (breath alcohol content) by as much as 15%. Conversely, hyperventilating for a similar period of time before blowing can have the effect of decreasing the BAC by as much as 10%. Keeping your mouth closed for several minutes before blowing versus simply opening your mouth and breathing regularly or with short quick exhales can have an impact. How can this be you ask?

Remember that the exchange of alcohol from blood to breath takes place in the alveolar lung air. If a driver holds their breath they are allowing whatever alcohol is in their mouth and airways to build up right before exhaling in the machine. Additionally, sustained deep hard breathing into the machine extracts the maximum alcohol content from the lungs into the machine as opposed to more shallow breathing which will not have such a high level of alcohol content. The machine has a gage on it that monitors exhaled air flow which has a tendency to require a certain air volume but it does not take much to meet the requirement of the machine.

Maryland law and the toxicology regulations Section III Appendix J require that the two blows that are required must be within .02 of each other and if they are not, a third sample is required. One of the reasons for that is because different techniques employed while blowing into the machine can have dramatically different results. Thankfully, the State does use the lower result against the driver.

Therefore, if you can not remember how to blow into the machine when asked to do so by Maryland's finest, simply employ a technique directly contrary to what the officer who is trying to convict you, asks you to do, and you should be alright.

When in Court, many officers (not all) seem to take great pleasure, and bend over backwards, to obtain a conviction as opposed to simply telling the story like it is and let the fact finder determine for themselves if the driver is guilty or not. A driver would do well to bare this in mind when determining what to do and what to say when arrested for DUI.

1. The tests are subjectively graded by the officer. As far as the court is concerned, what the officer says happened, is what happened. When it's a driver's word against the cop's word, the cop wins- after all, you were impaired how could you possibly remember what happened right?

2. The driver is attempting these field exercises in a highly emotional state. It is typically night time, on the side of the street, and if you are human, your blood pressure is through the roof because you have been pulled over by the police, you face possible jail based on how you do (at least in your own mind), you are in public trying to do these tests, and you may not be all that physically coordinated.

3. Different people have different abilities, both physically and mentally. Some people are coordinated, faster, balance better, some people have medical issues, some people can function better under pressure, etc. I do not see, nor have I seen, where sober people under these conditions can perform these test adequately. How many times have you heard "I couldn't do these tests sober!" Don't say that either, they will use that against you as an admission. Essentially, the test are engineered from the word go for you to FAIL. By the way, you better wait for the word GO to begin the tests or that will be construed as a clue against you.

I won an interesting case on Friday (today is Saturday morning) on the eastern shore, Maryland and I think it is noteworthy regarding field sobriety tests- here's what happened....

I defended the possession of cocaine case and the DUI in court and won them both, and I defended the refusal on Friday and won that too, so the client is a happy and free man. By the way, he was stopped for having a tag light out.

The important part of this story and why I'm relaying this in a post about field sobriety tests is that the driver blew a PBT of .15 (twice the legal limit) and apparently passed the field tests. Conversely, I have a tremendous number of clients who are less than or equal to .08 and are alleged to have failed the field sobriety tests. So, in the final analysis, what good are these darn exercises, what do they prove, other than to allow the police to develop evidence which is utilized against the driver in almost every single case.

Well, these facts are good for the defendant and bad for the MVA and/or the court. I requested an MVA hearing for this client (where I may not have otherwise done so based on the BAC number) on the denial of counsel issue. Following an MVA hearing on the merits, the administrative law judge agreed that the defendant had the right to an attorney prior to blowing in the machine and therefore took no action. Very nice result for a .18. This particular issue is a strong one at administrative hearings and when properly proven, has won the day in each instance except for once, for which the matter is presently on appeal to the Circuit Court for Carroll County.

Be that as it may, we appeared in the District Court for Montgomery County today with the .18 and I anticipated the State, based on the facts, would drop the case to the "b" offense. The State, however, had other plans and declined to do so. We had a fair judge today and I think the issue would have been successfully tried, except for two things: 1. The client was not in favor of a trial as she just wanted it to be over so she could go home and 2. There were underlying traffic tickets that still had to be dealt with in addition to the DUI charge. So, at the client's direction, the matter was not tried but rather plead out. She essentially received an unsupervised probation, having already completed alcohol education, all the traffic tickets were dropped and the client was happy. So in this case, being right and proving it at trial may not have been the right thing to do as it may have resulted in additional problems for the client at the end of the day.

The point to bare in mind here is that despite the possible trial on the right to an attorney issue, the better resolution was reached as a result of entering into a plea agreement with the State. The prosecutor said they normally do not drop the traffic tickets but since we did have an issue, she was willing to drop them here. As a result of that, the client was able to make a very clean exit. It's true that she got probation for the "a" offense as opposed to a possible "b" if we would have won in trial, but she walked away with no points whatsoever, and a short period of probation without the stress of a trial and she avoided the traffic tickets which she would have otherwise received. The better result was obtained without the fight.

Now, how does a depressed blood sugar level present itself? Known as hypoglycemia (low blood sugar) a person will have slurred speech, poor balance, impaired motor control, staggering, drowsiness, flushed face and will possibly be disoriented. All of the normal things the cops look for. They see it in a person suffering from this condition and then make an arrest for DUI. In my case, the lady told the officer why she was racing home and what she needed but naturally her claims fell on deaf ears.

So off to the station house we go for a breath test which will surely exonerate our young client right? Wrong! As previously discussed the infra red device in the intox is designed to pick up the molecular structure of ethanol alcohol. Unfortunately for this driver, a similar molecular structure exists in a wide variety of breath constituents known as the "methyl group" and will be picked up and identified by the magic box on the cops desk as ethanol alcohol and used against the driver.

In this case, the diabetic has acetone on her breath. Acetone on the breath is a well documented by-product of hypoglycemia. The machine will register the acetone in the breath and yield a BAC reading when the driver may have consumed no alcohol or it will magnify the BAC where she has consumed alcohol.

The result for this particular driver was that her BAC number was thrown out at the administrative hearing and she received an unsupervised probation in Court.

Did you know that if you were convicted of the worst crime possible, murder, that you have more rights and Constitutional protections than if you are charged with the misdemeanor of drinking and driving? That is, as soon as the murderer is taken into custody the first thing that happens is that he is read his Miranda rights; he is essentially advised to shut up and get a lawyer (albeit many people never heed this warning). Every step of the way thereafter, due process mandates that a suspect have a lawyer present to protect his legal rights, despite the fact he may have killed another human being and deprived that person of their rights.

Your government has the right and the ability under law to deny a citizen of their property, their liberty and their life. If a government agent, the police, charges a citizen with a crime, another government agent, the prosecution picks up the ball and prosecutes the citizen. Then a judge, another government employee, or a jury hears the evidence which is offered by the government. The government has an endless amount of resources, financial and otherwise to obtain evidence and to support its version of a case. The ONLY THING standing between the police, the prosecution and government, the only thing an accused has to rely on to protect him from losing his liberty, his property, or his life, is his defense attorney. His attorney is his key to bring to bare the case law, the statutes, and the facts in order to contradict the awesome power of the government. His criminal defense attorney is all he has to protect him from the system.

In any individual case the system may be correct, the defendant may have done what he is accused of doing and may therefore need to be punished (unless he is a friend of the President like Scooter Libby, in which case the rule of law does not matter and he will be set free). If this "system" is correct, then so be it, let the system prove its case to the satisfaction of a jury and punish the defendant accordingly. However, there are also countless times when the system is not correct; where the wrong defendant has been accused, where the crime has not been committed as charged. It is in these cases where the defense attorney is needed the most and in order for the defense attorney to be effective on the part of an innocent person, the attorney must also defend the guilty defendant. That is, both defendants, those actually guilty of the crime and those innocent of the crime have the absolute right to and a need for a defense. Both defendants have the right to an even playing field under the Constitution because if a defendant is in fact guilty, the State should be able to prove its case beyond a reasonable right, right?

Then you get arrested. Now that you are arrested the Miranda rights apply because you are in custody. However, many times they are not read to you because that would increase your suspicion of the process and may cause you to invoke your right to a lawyer which is a right they will never tell you that you have. So you are taken to the police station, you are read certain administrative rights that you have and you are asked to blow in the machine. At no time will you be told that you have a right to speak with a lawyer before making the decision to blow, but you do have such a right or so said the Maryland Court in Brosin and Sites.

So what is the point of all of this? The point is as a citizen in this country you have rights; important rights that people have fought hard to protect. Everybody gets the benefit of those rights whether you are a simple murderer or a heinous DUI suspect. The Constitution says it does not matter what you’re charged with, you are protected. The government however, with the benefit of MADD applying significant pressure says it does matter. DUI suspects have fewer rights. DUI defense attorneys say it should not matter and we are here to protect your rights the best that we can on an increasingly unlevel playing field.