First thing back after the Independence Day holiday I'm in Montgomery County, Maryland for a DUI . In this case the defendant was stopped for a traffic violation and read her DR-15 rights prior to blowing in the machine. She did not understand her rights as they can be somewhat confusing so she asked to speak with an attorney, on more than one occasion, which is a good thing to do in any case. Unfortunately, she had been arrested by an officer who did not appear to understand that the defendant has rights (there's a shocker). She has the right to speak with a lawyer when she asks as long as it does not interfere with the timely administration of the breath test. Notwithstanding, this officer said NO. The defendant subsequently ended up providing a breath sample and blew a .18.
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.
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