November 4, 2013

Nuance of DUI/Criminal Defense

Maryland DUI defense is similar to criminal defense and even civil trial work in that one has to be careful when determining what witnesses to put on the stand and what they will say. In DUI defense, generally speaking it should be a rare occasion that the defendant takes the stand to testify on his own behalf. The reasons for that are 1) defendants have the absolute right not to testify in court with the judge inferring nothing negative from that decision and 2) when a defendant does testify it gives the prosecution the opportunity to ask him a variety of punishing questions which more likely then not gives the impression to the judge of guilt rather than innocence. The way to protect against this line of questioning is to not have a defendant testify at trial.

Another interesting nuance concerning who testifies in court and who does not is that the focus of the trial will be upon the testifying party(s); thus when the state puts on its own witnesses such as the arresting officer and that officer is cross examined by the defense, the focus of the trial will be upon what that officer did/did not do during the stop/arrest. It will be less upon what the defendant may have done.

Expanding on the defendant testifying in his own defense or even at sentencing, aside from realigning the focus of the case back upon himself, there is frequently the concern that the defendant may say something that is unwise, illogical or untrue under fire of cross examination. Once that mortal sin has been committed, there may be little chance that a successful defense can be resurrected from the ashes.

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March 31, 2013

Ready to Fight your DUI case!

We had a very interesting DUI trial last week in Baltimore County, Maryland. It was the defendant's second DUI offense at a young age, he blew over twice the legal limit, rear ended at a small sports car and forced that car into a truck. I advised my young defendant before Court that this was a serious case and he needed to prepare for the likelihood of going to jail. However, unlike many Maryland DUI lawyers, we were not going to simply plead the case. I told the prosecutor we were ready for trial- call the case. The young cocky prosecutor was more then happy to call the case for trial. He had many witnesses to the accident and all the police officers all lined up and ready to go (well almost all, he had to get the breath tech there from another state only to have his testimony quashed by me, but oh well).

So the trial begins and the Government (through the young prosecutor) focuses the majority of his effort on the accident. We stipulated (admitted) to the fact that there was an accident and that the Defendant caused the accident, but the Government persisted on calling every witness he had to prove the same issue over and over again. This wastes the Court's time and does not please the judge. The judge is busy and wants the cases moved. They will listen to whatever gets put on the stand, but they would prefer not to have their time wasted. The Court could easily see we were trying not to waste time and the State just didn't know what he was doing.

Ultimately we moved through the accident and the 5 witnesses called to prove the same damn thing and all the poignant pictures they had. Then it was time to get back to the nuts and bolts of proving the DUI case. The State next had to get the high BAC number into evidence, had the State done this simple task the case would have been over and the Defendant would have gone to jail. This should not be too much of an issue except for the fact both the cops and the prosecutor both screwed up the breath test.

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December 7, 2012

Ready for Trial Your Honor!

When seeking out a DUI law firm, it is important that you retain a law firm with a DUI team that actually fights for you in Court; by that I mean, lawyers that are not afraid to try your case. If you go to one of these volume places because you received a letter from them in the mail or because they offered to defend you for $750, you are not doing yourself any favors. In fact, you are doing yourself a significant injustice. Why? Because your lawyer has to be ready to tell the Judge "Ready for trial your Honor" and mean it. He has to be taken seriously by the Judge and the Government lawyer.

A few months ago we won an "un-winnable" manslaughter case in Anne Arundel County ( a very difficult and conservative jurisdiction). Everybody, including the prosecutor thought we could not win. We prepared the case in our normal comprehensive fashion and determined we could win. The State was seeking well over a year for our young client in the Maryland Department of Corrections. We were not deterred. Following a two day jury trial, the jury found our client NOT GUILTY in a matter of hours.

More importantly, this week, only days ago, we represented a lovely young lady who was arrested for DUI after going through a red light, T boning another car and blowing a .19 into the police breath machine in Baltimore County. The prosecutor was emboldened by these facts and was not interested in any plea- he wanted jail. We said, "Ready for Trial your honor."

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December 27, 2009

Jurisdiction v. Baltimore County DUI

The jurisdiction in a DUI case is where the DUI was effectuated; which is essentially where the police pull you over and make an arrest. The local police, such as Baltimore County or Howard County Police are charged with the responsibility to protect their given jurisdiction; they are not authorized in normal DUI/DWI cases to travel into adjacent jurisdictions to arrest except in special circumstances. The Maryland State Police conversely have jurisdiction throughout Maryland and therefore are not limited by County.

I was recently hired to defend a DUI case in Baltimore County. The arresting officer (an off duty Baltimore City Cop) was driving home and stopped my client in Baltimore County. After the alcohol stop he called the local police who came and proceeded with the arrest, field tests, etc. The defendant was taken to the Baltimore County Police station and blew an illegal blood alcohol content whereupon he was charged with DUI, DUI and related offenses.

At the trial of this Defendant I explained to the State's Attorney that they had a jurisdiction issue. That an off duty Baltimore City police officer may not effectuate a stop in Baltimore County because he lacks the authority, he must instead call the local authorities or a State Trooper to make the stop. That is to say, an off duty cop out of his jurisdiction has the same rights that a regular citizen has. If he exceeds those rights, as he did in this case, the stop and subsequent arrest become illegal. Once you have an illegal stop, any evidence flowing from that illegal stop may be suppressed. Once the state or the Judge agrees, the case can be dismissed, as it was in this instance.

When defending a DUI charge, there are many nuances both prior to the actual arrest and the procedure of the arrest itself that must be properly identified by experienced DUI counsel in order achieve the best possible result in any given case.

June 28, 2009

Howard County DUI - Serious Case -Serious Defense

Luckily the overwhelming majority of DUI cases in Maryland are relatively bland, that is, the driver had a little too much to drink and was stopped by Maryland's law enforcement for speeding or driving on the shoulder; nobody gets physically hurt. However, occasionally a very serious case comes along which necessitates an extremely high level of defense or the Defendant is going to jail for a very long time.

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In this very serious Howard County DUI case, my client mistakenly proceeded the wrong way on the highway and struck a Mac truck head on. The driver of the truck escaped with very minor injuries, however my client was brought back to life at the scene of the accident by the highly skilled Howard County Medics. She was taken to shock trauma where she spent the next month having multiple surgeries and clinging to life from her life threatening injuries including breaking almost every bone in her body. Following a month of Shock Trauma it was off to a rehab facility to learn how to walk.

Unfortunately for this client, her BAC (blood alcohol content) was in the .20 range which is very high. She is a professional and had never been in trouble with the law before. She retained Robinson & Associates to provide her defense in this very serious case and we were able to comb through her case and find several weaknesses in what appeared to be a very strong case against this defendant.

On the day of her trial, following pretrial motions and several meetings with the State's Attorney, we were able to walk our client out of court that day with no conviction and unsupervised probation, a Herculean result in Howard County. If you have a DUI in Howard County Maryland and need experienced and aggressive counsel to protect you and your family, give us a call, anytime, we'll be glad to discuss your case at no charge.

October 25, 2008

The Government doesn't play fair- there's a shocker!

I was in Baltimore County District Court this week representing a pleasant out of state client on a Maryland DUI/DWI charge. This client had never been in trouble before and was very concerned about the outcome of his case (obviously desiring to keep his record untarnished by a bogus DUI charge).

We proceeded to Essex District Court and I advise the prosecutor that we can stipulate to the facts of the case but that I will be arguing the legality of the stop under the omnipotent Atkinson case. The Government responds that if I wish to argue the facts of the case, then we must have a full blown trial. I told her that's a ridiculous waste of the Court's time and resources but if that's what you want, that's what we'll do. The next thing that happens is that the senior prosecutor comes over to me and asks me if I want the breath tech to stay for the trial. I told her that since they are insisting on a needless trial then yes we will need the breath tech to be present for the trial. She turns around in a huff and walks away.

Roughly an hour later as the docket thins out, the case is called by the Judge. The first thing that happens is the Judge inquires of the Government why the Government earlier filed a motion to postpone this case as a result of a police officer not being available for trial, when the officer they noted had absolutely nothing to do with the case whatsoever. Woops, the state has no answer at all, just a deer in the head lights stare and a meek "we are ready for trial judge"

The State then indicates that they only have one police witness for trial, the arresting officer and that the breath tech (who I required to be present) was not present in court and never was there the entire day. This is the officer that the senior prosecutor asked me if I wanted for trial and I said yes and she damn site knew he was not there and was not going to be there at all.

Be that as it may, we proceed to trial, the DUI arresting officer testifies to the facts, to which we agree and then the Judge says, "why are we having a trial if the facts are stipulated too?" I say, Judge I don't know, I already told the state I would stipulate to the facts of the case but they insisted on a trial. I suppose it was a matter of inexperience on the part of the prosecutor, oh well, what's the difference if we waste the tax payers money on court time and police officers overtime. Perhaps if the Government is so eager to waste tax payer money, they might want to consider investing more of it in training new prosecutors.

So the case moves forward and the officer finishes testifying, I cross examine the officer on the basis of the stop and subsequently make a motion to suppress the .13 BAC (blood alcohol content) based on an illegal stop. As it was, the trial judge completely agreed with me that the police engaged in an illegal stop of my client and all evidence was suppressed and the client was found not guilty! Client is happy and goes home with a clean record; I am happy but go back to the office quite concerned.

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September 29, 2008

Experts and Expert Training

A Maryland DUI defendant needs two things in order to maximize his/her chances of a successful resolution of his case. He needs a lawyer that has the proper DUI training and expertise and he needs access to appropriate experts in court. The defense of a DUI case is a sub-specialty of criminal law, just like cardiology is a sub-specialty of medicine, and if you want to win your case, you should treat your case the same way you would treat your body.

The National College for DUI Defense (NCDD) trains attorneys in quarterly seminars, classes and related formats to properly defend citizens charged with this criminal offense. Such specialized training includes courses in the administration of field sobriety testing, ie. what the police officers are supposed to be doing in the field, instructor level training in order to teach police officers how to administer field sobriety testing (this writer holds both certifications), Drug Recognition Evaluations (DRE), Intox machines classes and more. Many attorneys nationwide and a few statewide hold these various certifications, if you are serious about the defense of your case, you should consider an attorney that holds these certifications.

In addition to engaging the services of an appropriate advocate to defend your case, you should also consider the importance of engaging experts to assist in the defense of your case.

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September 29, 2008

DUI Plea Deals

The proper defense of a Maryland DUI charge is a complicated matter. A DUI/DWI defendant does not always realize this when seeing the number of Maryland DUI cases which are plead out in court, but when a DUI matter is properly worked up for trial it gets complicated and generally requires experts to come to court to help the judge or jury find the truth.

That's not to say that all cases should be tried, on the contrary, some cases/defendants may benefit from a properly secured plea arrangement. Such cases can severely limit or completely exclude a defendant's exposure to jail time which is generally an important goal. I recently had such a case in Carroll County Maryland with a 2nd DUI offender, still on probation for his first offense. Pretrial suppression motions were filed for trial resulting in an appropriate plea arrangement in the Circuit Court which successfully limited my client's exposure to significant incarceration. This was a proper plea arrangement and the client was pleased with the outcome.

Conversely however, sometimes plea arrangements are entered into by counsel who may not be fully versed on DUI/DWI law and therefore said counsel may not be in a position to advance his client's case to trial. In that case, the Defendant comes to the court in a position of weakness and can not expect to achieve the best result possible in the case.

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March 13, 2008

Jury Trials and DUI Defense

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.

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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.