Posted On: February 22, 2013 by Brian G. Thompson

Not Guilty in DUI Case Where Defendant Blows .15 on PBT

As a Baltimore Maryland DUI/DWI Lawyer, I have handled more than 5,000 DUI cases. I have blogged many times about the new laws that have been passed in recent years, particularly the DUI Per Se law, making it increasingly difficult to get Not Guilty verdicts for clients in these cases. More often than not, if the police have probable cause for the stop, it is a relatively easy matter for prosecutors to prove the balance of their case. particularly if the person submits to a breathalyzer and the result is .08 or greater.

I represented a client in Baltimore County District Court this week whose case proved to be one of the exceptions to the rule. In spite of the fact that she blew a .15 on the PBT at the scene, I secured her not guilty verdicts on each of the alcohol related offenses. Here are the facts:

My client was driving on the inner loop of I695 in Baltimore County one night last summer. She had been at a party most of the day and had consumed some alcohol. The police officer wrote in his report that his attention was drawn to her because she was changing lanes erratically. He conducted and pace of the vehicle and found her to be traveling at 75 MPH in a 55 MPH zone. It was also a work area.

He conducted a stop of the vehicle and approached it from the passenger side to stay clear of the traffic. Although could not smell alcohol on the client due to the fact that she was operating a convertible, he suspected that she had been drinking. He asked her to step from the vehicle which she did. The officer wrote and later testified that at this point he could smell a strong odor of alcohol coming from her breath. He also note that she stumbled as she exited the vehicle and had to grab onto the car door to stop herself from falling.

He then requested that she perform field sobriety tests and she complied. She did not perform them to his satisfaction so he asked her to take a PBT at the scene. She agreed and the result was a .15 blood alcohol content. (PBT's are notoriously unreliable and for that reason are inadmissible in court). He arrested her at this point and took her back to the precinct where she refused the breath test. The officer made particular efforts to describe my client's demeanor claiming that she told him she was an attorney, that she was argumentative and ultimate that she began crying hysterically. She was charged with Driving Under the Influence, Driving While Impaired, Speeding, Reckless Driving, Negligent Driving and Failure to Obey and Traffic Control Device.

When I first reviewed the reports I was struck by the fact that a few things were missing that we typically see in these reports. For instance, the officer made no mention of my client's speech. Typically they will note that it was slurred. He also made no observations of her personal appearance and other than the initial stumble coming out of the car, did not note her to be swaying or stumbling or in anyway unsteady on her feet. A close review of the particulars of her performance on the field sobriety tests also revealed that although he claimed that she had failed overall, she managed to complete many individual aspects of the tests satisfactorily or at least he did not indicate otherwise in his report. He noted for instance that she had not stepped off the line or raised her arms for balance on the walk and turn. He also noted that she had only put her foot down once on the one leg stand and that she had counted correctly and not swayed. He did say that she raised her arms for balance but did not specify how far.

We elected to try the case to a judge in District Court as opposed to a jury. I made this decision for several reasons. First we drew a judge who I knew to be strong on the issue of guilt or innocence. Judges' opinions of what does and does not constitute evidence beyond a reasonable doubt varies and I knew this particular judge to believe this to be a very high standard as do I. I also recommended a court trial because I knew the judge would not jail her if we lost and we could appeal and get a brand new "de novo" trial in the Circuit Court if we did.

During the trial the prosecutor elicited testimony such as that she raised her arms for balance during the one leg stand but failed to ask how far. He got the police officer to testify that she had missed heal to toe but did not nail down by how much. He then spent a good deal of time focusing on my client arguing with the police officer and her emotional response to being arrested. The obvious implication from his perspective was that she did so because she was drunk.

On cross I did not ask a single question about the things that my client supposedly did wrong and instead focused my questions one by one on the parts of the FST's that she had performed correctly according to his report. The focus of the prosecutor on my client's emotional response also gave me the opportunity to get the specifics of my client'semployment and what she stood to lose if convicted out in front of the judge without it seeming gratuitous that I did so. I will not disclose those details here in the interest of protecting her identity but I was then able to argue that it was this legitimate fear of losing her career that caused her hysterics and that it was an understandable reaction under the circumstances.

I then argued all that she had done correctly on the FST's, pointed out the lack of specificity on her supposed failings and argued that all of this added up to reasonable doubt. The judge agreed and found her not guilty on the DUI and DWI and guilty only of speeding and negligent driving.

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