I had an interesting DUI victory today in Baltimore County District Court. Unfortunately my client was in a wheelchair and paralyzed from the waist down due to a pre-existing condition from years ago. He was stopped driving home in Baltimore County for speeding wherein he told the officer that he had five beers and a shot of fireball whiskey, he was charged with a Maryland DUI. One challenge that we see a lot when dealing with the police is that defendants are a little too talkative regarding what they have consumed prior to being arrested. Remember, in any other form of criminal arrest the police are constrained to read Miranda warnings which is advice to the defendant to keep their mouth shut until contacting an attorney. Unfortunately, these same protections do not typically apply in the traffic/DUI scenario. Consequently, it is wise to be aware of your legal rights to keep your mouth closed and to practice that philosophy.
The police in this case could not perform the normal field sobriety tests for obvious reasons; however the police officer was able to perform the single test of the horizontal gaze nystagmus or HGN. Remembering that the HGN test is nothing more than an indicator that one has consumed alcohol, this test was relatively meaningless in this case because the defendant admitted that he consumed alcohol throughout the evening. This defendant was arrested by the police as a result of the HGN test and his red glassy eyes in addition to minimal speeding. Once back at the police station he blew a .14 BAC into the breath machine and that was the end of the game.
Fast-forward to Baltimore County District Court today where I tried the case and was able to exclude the BAC number from coming into evidence. Once the number was excluded due to the police officer’s technical failure in the case, something the prosecutor was not aware of, the case took on all whole new light. Many times there are technical failures on the part of law enforcement or the prosecutor’s office and that is how these cases are won.
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