As a Baltimore Maryland Criminal and DUI Attorney, I defend people charged with DUI and DWI almost every day. It takes many years of experience to determine which cases should be taken to trial and which cases should be plea bargained. I had a case falling into the former category last week in the District Court for Baltimore City.
My client was found not guilty after I attacked the credibility of the MDTA Police Officer’s depiction of my client’s performance on the field sobriety tests and perhaps more importantly, pointed out the court what he left out of his report. Here are the facts:
My client is a 57 year old woman who has owned and tended a local bar for 28 years. She had never before been in trouble with the law and had certainly never been charged with DUI or DWI. Those facts together caused me to be predisposed to believe her version of the events as I found it difficult to believe that someone who had worked in the bar industry for that many years could have avoided being charged with DUI if she weren’t very careful about her alcohol intake while working. Few industries have higher instances of DUI and DWI arrests than does the bar and restaurant industry for the simple fact that these workers are around alcohol so often.
My client was working on the day of an important Raven’s football game at the end of the season. She told me that she rarely drinks while working but made an exception on this day because the bar was very crowded and everyone was in a celebratory mood because of the game. She advised me that she was certain about the amount and timing of her alcohol intake that day and that it consisted of just two, four ounce glasses of wine. The first she had the first glass “at the end of the second quarter” and the second at the beginning of the 4th quarter which would have been at roughly 3pm. I have rarely in my career had a client who was this adamant about how much she had to drink, or a client who was this credible.
She closed and left the bar at around 1130PM – over six hours after her second and final drink. She was travelling Southbound on I95 about a mile north of the Harbor Tunnel. She advised me that she was driving very near the 55 MPH speed limit but may have been 4 or 5 miles per hour over. At this point she advised that a vehicle approached her rapidly from the rear and proceeded to drive very close to her bumper. She advised that the lights were very bright and that she was “very frightened” by his actions. She told me that she changed lanes only to have the car change lanes with her. She then sped up to approximately 70 or 75 mph to try to get away from the vehicle but it sped up with her. At this point the vehicle activated its emergency lights and for the first time she knew it was a police officer. In his report he noted as the reasons for stopping her that paced her at 75 in a 55 zone and that she had weaved and changed lanes several times. My client insisted that she did none of those things until he began tailgating her.
She advised that when the officer approached her she immediately inquired as to why he had driven in that manner and told him that she had scared her. She said that he basically ignored her complaints and immediately began asking her if she had been drinking. She told him exactly what she told me but he was intent on “investigating” the matter further. He instructed her to get out of the vehicle. She complied, but advised him that she suffered from severe arthritis and had been working for 14 hours that day. Additionally, it was quite cold that that, she was wearing slippers and the tests were conducted right on the side of I95 with trucks blowing by every few seconds. Throughout the tests she repeated the reasons why she knew she could not perform the tests and asked several times if he would just give her a breathalyzer. Eventually he did call for another officer to give her the test but refused to tell her results. He then took her into custody and transported her back to the police station. Needless to say she was in shock as she knew she was not under the influence. I issued a subpeona to the MDTA for the video from the officer’s on board dash camera but was advised in writing that camera was not operational that evening.
In addition to the fact that I found my client so credible, I also noted some glaring omissions in the officer’s report. For instance, he left out my client’s repeatedly demands to take a breath test. He left out her repeated admonishments to him about her arthritis. He noted in her report that she spoke with “slightly slurred” speech but left out the fact that she wears dentures. He left out the fact that he gave her a breathalyzer on the side of the road but in a conversation prior to the trial, claimed to remember the result being .12. I was able to keep this alleged result out of evidence although the State’s Attorney tried to admit it after I questioned the officer about my client’s demands to take a test.
The officer more or less admitted these discrepancies on the stand and it damaged his credibility. He really acted and sounded more like someone who was looking to get DUI arrest that night than a police officer conducting an objective investigation. After all of the evidence was heard I argued that lack of credibility to the judge who noted that she could hear a slight slur in my client’s speech in court where she quite obviously was not under the influence. I also pointed out that my client was very credible and argued that the fact that the officer’s dash camera was not working should be held against the State as it prevented us from having an objective “witness” of the roadside investigation. The judge agreed with these arguments and the client was found not guilty of all charges.
This was obviously a good result but it must be stressed that an attorney has to know which cases to take to trial and which cases to plead out as the result of an unsuccessful trial is very often a sentence much harsher than was offered by the State as part of a plea bargain. This may sound unfair but offering a bargain to those who don’t force the State to trial is really the only way to keep the system from becoming hopelessly bogged down.