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DUI Subsequent Offender Receives Probation

As a Baltimore Maryland DUI/DWI Attorney I often represent people in DUI/DWI cases who have previously been convicted of a DUI or DWI in the past. These defendants are known as repeat or subsequent offenders in courthouse vernacular. Over the past few years prosecutors have begun to seek and judges have started to impose, harsher and harsher penalties including incarceration, even for defendants with only one prior offense. It is now pretty common for second offenders to receive 30 days or more and defendants with two or more prior convictions to serve sentences of six months or longer.

I blogged about a case a few weeks ago that I got involved after the sentence had been imposed and tried unsuccessfully to reverse the damage. In that case the defendant did not get into an accident, blew a .16 and had only one prior occurring 11 years prior to the second. He received a sentence of 4 months to serve in the Baltimore City Jail after the case was badly mishandled by his attorney. I represented a similarly situated second offender in the exact same court last week with a completely different outcome. Here are the facts.

My client was pulled over for weaving and crossing onto the shoulder on I – 895 by a Maryland Transit Authority Police Officer. After failing the field sobriety tests he was arrested and blew a ..26 BAC. Like the defendant I blogged about a few weeks ago (I will refer to him as D1 hereinafter), my client had one prior DUI but my client’s prior occurred just 4 1/2 priors to this case. This is obviously substantially more recent than the 11 years in between D1’s two incidents. Again, like D1, my client had no other record and the case did not involve an accident. The bottom line is that my client was actually in a slightly worse position than was D1 because his BAC was much higher and his prior was more recent. However, my client walked out of court last week with probation and didn’t serve a single day in jail.

As I indicated in my blog about D1’s case, I believe his attorney badly mishandled his case. This is because he accepted the State’s offer on the very first trial date in Circuit Court after praying a jury trial and because the case was not properly prepared either for a defense or for mitigation. The prosecutors who handled my case were the very same ones who handled D1’s case and their initial position was that they would demand a lengthy jail term for my client. But I did a few things differently than did D1’s attorney.

First of all, I exhaustively prepared a plausible defense which was that the officer was lying about the probable cause for the stop. Ordinarily in a case like this I would send a private investigator to the scene to take video and still pictures of the area. In this case my client chose to do the leg work himself rather than pay for an investigator but the result was the same – we developed photographic proof that the police officer, at minimum, exaggerated my client’s poor driving. I conveyed the gist of my defense to the prosecutor and I believe this made him at least consider the possibility that he might lose the case. Putting this kind of doubt in a prosecutor’s mind about his case almost invariably improves the plea offer that he makes.

The second thing I did was take advantage of the crowded nature of the court’s docket and allowed the case to be postponed for almost a year due to court unavailability. Sooner or later if a case is postponed enough times, the State will almost always have a problem with their case and that is what happened here. The arresting officer was out of town but had failed to submit notice ahead of time so the prosecutor was in a position of having to ask for a postponement which he knew could have been denied. Although I suspect the court would have granted his request, he would have no choice but to dismiss the entire case if his request was denied. This was a chance he did not want to take.

Ultimately the prosecutor made the calculation that between the defense that we prepared and his witness problem, that it was in the interest of the State to secure the conviction rather than risk losing the case altogether. He offered probation and my client gladly accepted it. I believe this was a just result in this case but it is not what would have happened if I had simply showed up in court and accepted whatever offer the State made like D1’s attorney did for him.