Posted On: February 26, 2013 by Brian G. Thompson

DUI Repeat Offender is Second Not Guilty This Week in DUI Case

As an Aggressive Baltimore Maryland DUI Attorney I have handled literally thousands of DUI cases both as a former prosecutor and as a defense attorney. I have written several times in this blog that it is extremely difficult these days to secure a not guilty in a DUI case on the issue of whether in fact the client was under the influence or impaired. I have won more than my fair share of DUI trials over the last 15 years since I left the State's Attorney's Office but the overwhelming majority have been on technical issues such as an illegal stop or the State's inability to prove that my client was the operator of the vehicle.

I published a blog last week about a DUI trial that I won on the impairment issue but that was only one of two that week. I won a second on this issue in spite of the fact that my client had 3 recently consumed beer cans in the car when he was stopped and told the police that he would not do the field sobriety tests because he "would fail them". That case was scheduled in the District Court for Baltimore County last Friday. Here are the facts:

My client who was admittedly suffering from a combination of psychiatric and alcohol issues, was operating his vehicle in the Catonsville area of Baltimore County one day last summer. It was in fact a few days after the first big wind storm we had when many people lost power for a week or more. He was unfortunately one of those people so he decided to sit in his car to listen to the radio and drink beer. After a few beers he decided to take a drive to survey the damage which was needless to say a mistake.

A police officer randomly ran a check his tags and found that that they were suspended for failure to get an emissions test. He activated his lights and got behind my client's car. My client did not immediately pulled over but after traveling a short distance, stopped at a traffic light. The officer got out of his car and approached the window at which point the light turned green and the client drove away. The officer got back in his car and pursued the client in what he termed a "low speed chase". Eventually my client did pull over and the officer immediately placed him under arrest.

The officer noted in his report that the client had a moderate odor of alcohol emanating from his breath and person. He noted in his report that there were three empty beer cans in the passenger compartment of the vehicle. My client's appearance was also noted to be "disheveled". The officer asked him if he would be willing to perform field sobriety tests to which he replied "no, I will fail them". He was then asked if he had consumed any alcohol and he stated that he had drunk the beer that was in his car outside of his home. Importantly he did not specify when he had consumed the beer or whether the three cans in the car was all that he drank. The officer did not inquire further into these issue. The officer then transported him back to the precinct where my client refused to take a breathalyzer. He was arrested and charged with fleeing and eluding.

The danger in this case to my client was the DUI charge, not the fleeing and Eluding charge. The reason for this is that my client had not one but two prior convictions for Driving Under the Influence. I advised him of the fact that incarceration is pretty much automatic in a third offense DUI unless the person has entered into long term inpatient rehabilitation. The fleeing and eluding charge was not as worrisome as he had not endangered anyone given the slow speed nature of the fleeing.

The testimony came out in a manner consistent with the reports and I essentially did not dispute it. Instead I focused on what was missing from the reports and ultimately the testimony. I then argued to the judge that officer's observations were more consistent with someone suffering from a psychiatric episode than a person who was under the influence. Specifically I argued that the evidence produced by the State showed that at best he had consumed 3 cans of beer with absolutely no evidence as to whether he had consumed them 5 minutes prior to be arrested or 5 hours. The officer's observations did not indicate that he was stumbling or in any way unsteady on his feet. There was no testimony that he was incoherent or had any difficulty at all communicating or understanding directions. He was not speaking with a "mushed mouth" or slurring his words as people under the influence typically do and he did not drive in a reckless or negligent fashion.

I argued to the court that in the absence of field sobriety tests or a breathalyzer result, the court had to focus intently upon the observations made by the police officer of my client's condition. I argued that the smell of alcohol notwithstanding, the observations were more consistent with a person suffering from a psychiatric episode who may have consumed a small amount of alcohol. At a minimum, I argued, the state had failed to prove beyond a reasonable doubt that he was under the influence and that he should therefore be found not guilty. The court agreed finding him guilty only of the fleeing and eluding count and placing him on a period of unsupervised probation.

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