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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.

Take for example the recent case of Delegate Don Dwyer. He is the state congressman who had a blood alcohol content in excess of .20 when taken to the hospital as a result of a boating accident which sent himself and others (including children) to the hospital. It seems that Mr. Dwyer thought it would be wise to testify at his District Court hearing and attempt to persuade the judge that despite having a .20 BAC the boating accident was not his fault. This is one of those nuance situations were, despite the dubious accuracy of such a claim, when you have a .20 or more BAC, you will not be convincing a judge that you are not guilty of DUI, particularly when others are seriously injured. That is one of those times when you are better of shutting your mouth. In this case, the congressman may have learned his lesson as he was sentenced to 30 days in jail which he appealed to the Circuit Court for Anne Arundel County. Unfortunately, he violated rule #2 which is, while your pending a DUI charge, do not go out and get another DUI charge- which he did in car this time. Thus when he appeared back in the Circuit Court he was then sentenced to 60 days in jail which may have been a light sentence for him under the circumstances.

Getting back to the point, in most cases (not all) it is better to not testify and let the focus of the court proceeding be where it belongs, upon the state and the arresting officer. There is an old adage that applies well “It is better to remain silent and be thought a fool, then to open one’s mouth and remove all doubt.”