As an Aggressive Former Baltimore County Prosecutor and DUI/DWI Attorney, I have prosecuted and defended well over 5,000 DUI’s in my almost 20 year career. These cases are prosecuted very aggressively in Maryland with few dismissals and even fewer acquittals. The police have been trained to write highly detailed reports describing their interactions with defendants too include their performance on field sobriety tests. These detailed reports are then testified to in court and are very often viewed as sufficient evidence to convict, at least of Driving While Impaired, even with low blood alcohol readings such as .05 or .06.
I handled a case in Baltimore County this week in which my client blew only a .06. The prosecutor initially refused to dismiss the case. However, after speaking with me in detail about the circumstances of the police officer’s stop of my client and his performance on the field sobriety tests, I convinced her that she would be unable to prove the case. Here are the facts:
My client was driving home from a party on Route 40 at around 2am one night. He was following his cousin who was pulled over by a State Trooper for speeding so he (probably foolishly) pulled over a few hundred yards down the road to wait for him. At this point another State Trooper drove up behind my client and activated his emergency equipment. My client was legally pulled over on the shoulder of the road. There was no sign saying no stopping and he was not in anyway impeding traffic.
The Trooper wrote in his report that he was just on routine patrol, omitting the fact that his colleague had just pulled over another vehicle. He then wrote that he was just checking on his welfare – which under some circumstances could justify the stop, although I don’t believe this is such a circumstance given that he watched him pull over and presumably knew why he did so. He then put my client through the battery of standardized field sobriety tests and concluded that he was under the influence of alcohol. He charged my client with Driving Under the Influence, Driving While Impaired and, curiously, Negligent Driving. My client agreed to take a breathalyzer and blew just a .06.
In Maryland, if a person blows a .08 or greater the law says the the person is “Per Se Under the Influence”. At .07 the person is presumed to be impaired. At .05 and .06 there is no presumption either way, also known as a, “Neutral Presumption” and at .04 or below, the person is presumed not to be under the influence. The Assistant State’s Attorney who was assigned to the case believed that based on the Trooper’s description of my client’s performance on the field sobriety tests, she could overcome the neutral presumption and convict my client of Driving While Impaired. I advised her that I believed that I could call the Trooper’s credibility into question based on the discrepancies surrounded the stop. First the Trooper left out the fact that he was working with another Trooper and saw my client pull over when the car he was following was stopped. Second he claimed in his report that he was pulling the client over for a “welfare check”, which again makes no sense under these circumstances and finally, he charged my client with negligent driving with no basis whatsoever for doing so. I argued that these discrepancies along with the low reading and my client’s testimony about his actions that night would easily create reasonable doubt in the judge’s mind.
The prosecutor, to her credit, agreed that these discrepancies were troubling and dismissed the DUI and DWI charges.