A DUI defendant came to see me yesterday from across the bay bridge; she blew a .12 in the breathalizer and a .15 on the PBT (preliminary breath test offered on the street to determine if a DUI arrest is warranted). She was wondering how her BAC (breath alcohol content) could drop in the matter of minutes that it took to get from the street to the barracks. She was also concerned about the results of her field sobriety tests. I told her not to worry because it was very unlikely the case would ever get that far; you see, she was the victim of a particularly nefarious type of transaction- the DUI/DWI pretextual stop. A Queen Anne’s county police officer stopped this citizen because her license plate had that black plastic border around it that you get from the dealer when you buy a new car. That black plastic border was the entire basis for the stop!
A pretextual DUI arrest is one that is made, not necessarily for the purpose of a DUI investigation or arrest but rather in order to stop the car to see what the police may be able to come up with. Some times pretextual stops are executed with a “legal basis” but many times, they are not even legal stops and therefore are in complete violation of the people’s 4th amendment right to be free of illegal searches and seizures. The strange thing is that the police do not seem to understand that if they stop a car with no cognizable legal basis, such as in this case, all evidence that is subsequently acquired is considered “fruit of the poisonous tree” and subsequently suppressed at trial. Once that happens the entire case goes away.
Unfortunately, this bizarre and evil behavior is not isolated. I was recently speaking with a doctor who was traveling across the bridge with an african american passenger/friend. His automobile was stopped because allegedly there was dirt on the rear license plate which inhibited the police from reading the plate. Once stopped, the doctor told the nazi officer to show him the dirt on the license plate and poof, it was gone- no dirt. The doctor actually told the nazi that he was stopped because he had african american passenger. The officer let the doctor go. Fortunately, I have not seen too many of these totally bogus and illegal stops on this side of the bay bridge but they do happen and citizens need to be vigilant about their rights. One completely pretextual stop, but nonetheless legal, is the burnt light out over the license plate. This is a favorite of the police because it happens quite a bit, it’s easy for them and its a legal stop for an equipment violation. These often time illegal pretextual stops are another reason why a citizen is not guilty of any crime until the judge says they are guilty, this is why its important to retain competent DUI counsel.
The people’s right to be secure and protected from their government under the 4th amendment to the United States Constitution has been and continues to erode quite a but as it pertains to DUI/DWI stops in Maryland and most other states. Thankfully, most judges will recognize where there has been a complete bastardization or neglect for the law and will suppress such illegal evidence.