Posted On: November 4, 2010 by Brian G. Thompson

DUI/DWI Repeat Offender Successfully Defended

As an Aggressive Baltimore Maryland DUI/DWI Attorney I have represented hundreds of people who were charged with their second, third or even fourth DUI or DWI. These individuals are known in the legal system as repeat DUI/DWI offenders. These are very serious matters in which the defendant faces the very real possibility of incarceration even for a second offense. For instance, I wrote about a case in Baltimore City recently where a defendant, who was represented by an attorney who does not appear in criminal court on a daily basis, received a sentence of four months in jail for a second offense. And this was a case in which there was no accident and the defendant's prior conviction occurred more than 10 years prior to this case.

Needless to say, repeat DUI/DWI offenders need to take these matters very seriously and make sure that they are represented by an attorney who specializes in these matters. There is a very easy way to do this and that is by checking your attorney out on Maryland Judiciary Case search. http://casesearch.courts.state.md.us/inquiry/inquiry-index.jsp. On this web site an attorney's court record can be researched to determine whether or not that attorney regularly handles these cases.

I represented a repeat offender in Baltimore County District Court this week who had been to a previous attorney didn't have very much experience. That attorney told my client that he would have to plead guilty and was likely to do some jail time although he believed that he could get him weekend incarceration. I reviewed the case and immediately recognized that there was a substantial issue surrounding the probable cause, or in this case the lack there of, for the stop. Here are the facts:

My client was driving southbound on I95 just South of the Fort McHenry Tunnel. He was stopped by a MDTA Officer who claimed that he had observed him weaving within the lane and crossing twice into the lane beside the one in which he was driving. There were no further details in the statement of probable cause. Once stopped, the officer smelled alcohol on my client's breath. He failed the field sobriety tests, was arrested and blew a .15. It was clear that for the case to be won, the stop would have to be attacked as the rest of the case was very solid against my client.

The facts of this case are controlled by a very well known case, although apparently not well known to the client's previous attorney, Rowe v. State. In Rowe, the police officer observed the defendant cross over the white line separating the far right lane from the shoulder by 8 inches. The driver then crossed back into the travel lane and then drove on the white line for a short distance without crossing over it. Based on these observatons, the defendant was stopped and ultimately arrested for DUI. The Court of Appeals ruled that these "momentary" crossings of lane dividing lines do not amount to a violation of the traffic code and therefore do not support the stopping of the vehicle.

The facts in my case were almost exactly on point with the minor exception that my client crossed over the broken white line dividing the lanes instead of the solid line separating the travel lane from the shoulder. My client also allegedly weaved within his lane for a short distance. I figured with the right judge, my client had a better than average chance of winning the case although those odds could change depending upon what the officer testified to on the stand given the dearth of details in his report. If he testified that my client crossed over the line by half the width of the car and weaved dramatically within his lane, we would probably lose. If no additional details were provided or the details did not make the observations seem worse, we would probably win.

Of course, the first thing I had to determine was whether we drew a judge who would both give us a fair hearing (some judges are simply so pro state that a defendant can never win in front of them) and that he or she would be unlikely to exact a "trial penalty" on my client for trying the case. A trial penalty is essentially the reverse image of a plea bargain. The argument for giving someone a worse sentence is that the defendant is not receiving the reduction in sentence that he would have had he accepted responsibility and spared the state the time and expense of proving the case by pleading guilty.

On the trial date this week, we drew a brand new judge of the District Court which usually is not good because an attorney has nothing to base his prediction on as to how the judge will rule. This particular judge was also a former prosecutor who generally speaking are not the best judges for defendants. However, I knew this judge for many years prior to him/her being appointed to the bench. I had a great deal of respect for this judge's knowledge of the law and fairness from many prior dealings with him/her as a prosecutor. Based on this knowledge, I opted to advise my client to waive his right to a jury trial and proceed to trial in the District Court.

Again, the only real variable as I saw it was whether or not the police officer would add (or embellish) additional details that were not included in his report. As it turned out the details actually helped my client's case and there were two very important omissions. The officer testified that my client had crossed over with "the entire tire" on the first occasion and with just half of the tire on the second. I viewed this as quite good for my client as he seemed to minimize the crossing over. Under questioning by the prosecutor, he also failed to describe the weaving within the lane at all. Finally, while he did testify that there were other cars in the area, he failed to testify that any other car had to take evasive action or was in any way effected by my client's weaving or crossing over the lane divider. This lack of testimony turned out to be crucial to the judge.

In a rare move, at least for me, I opted to ask no questions of the officer or offer any other evidence. I simply calculated that the risk of hurting my client's case outweighed any benefit we might get from me questioning him. In the court's ruling, the judge indicated that had there been any testimony that other cars were effected by my client's actions that he/she would have found himguilty but without it, the court ruled that the the Rowe case was on point and that therefore, the stop was illegal. The evidence was suppressed and my client was found not guilty thus sparing him the possibility of jail not to mention the dramatic consequences that he would have faced at the Motor Vehicle Administration.

The outcome for him would have been far different had he stayed with the inexperienced lawyer whom he initially retained. Fortunately, in the era of Maryland Judiciary Case search in which all of the information about an attorney's experience is so readily available, hiring the wrong lawyer is really a mistake that never needs to occur.

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