Articles Posted in Proof

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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:
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As an experienced Maryland criminal defense attorney, friends are always asking me “how do I beat a DUI?” Ironically, this question most comes up during, you guessed it, cocktail parties. My first response is automatically “don’t drink an drive.” Of course, no one wants to hear that response and the inevitably follow-up question is “seriously, what do I do if I am pulled over?”

This is a complex question, because the question of “what do I do?” begs the question of “how much did you have to drink?”.

Assuming the answer is “allot” or “too much”, the law allows for just about any Maryland driver to beat an otherwise certain DUI, albeit at a price (which we will get into later).
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I recently had two similar DUI cases with very different results. Each case involved a drunk driver who was involved in a one car accident. One driver ran into a parked train and the other driver hit a tree. In each case the driver was alone and there were no witnesses to the accident.

The drunk driver of the vehicle that hit the train stayed at the scene long enough for the police arrive. He told the police when asked that he was driving and he agreed to submit to field sobriety tests. He was found to be intoxicated, went to court and was convicted based upon his admission to the police and the subsequent field sobriety tests.

In the case of the defendant who hit a tree, left the scene and his car behind, jumped in a cab and went home to sleep it off. The next day when the police tracked him down by his license plate, he refused to talk to them without a lawyer present. He did not admit to driving, causing the accident, or to drinking. He was charged with leaving the scene of an accident involving property damage, but not DUI. When he went to court, the State could not prove he was driving that night and the defendant was acquitted. His only repercussion was the costs to get his car out of the Baltimore City yard.
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Often times in Maryland DUI prosecutions, there is an issue of whether the defendant was actually behind the wheel or driving. This often comes up when the defendant pulls over to “sleep it off”.

The term “drive” as used in the Maryland drunk driver statutes means to drive, operate, move or be in actual physical control over a vehicle. This includes control over the steering of a vehicle that is being towed.

The seminal Maryland case on this issue is Atkinson v. State, 331 Md 199 (1993). In Atkinson, Maryland court of Appeals has determined that in situations where the driver is simply using his car for shelter until sober enough to drive, the driver can not be prosecuted for DUI. As long as the occupant is totally passive and has not made any attempts to actively control the vehicle. he is immune from a DUI prosecution in Maryland.

What constitutes “actual physical control” includes 1) whether the vehicle is legally parked or on a public roadway, 2) whether the vehicle’s headlights are on, 3) whether the ignition is on and the engine is running, 4) whether the driver is awake, 5) where in the vehicle is the occupant (driver’s seat or back seat makes a significance difference), and 6) the physical location of the ignition key.
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https://www.mdattorney.com/lawyer-attorney-1300822.htmlAs a full time Baltimore County Maryland DUI/DWI Attorney I am mindful of, and quite frankly troubled by, the fact that many attorneys handle criminal and serious traffic cases in spite of the fact that they are clearly not qualified to do so. I began to notice this fact when I was an Assistant State’s Attorney in Baltimore County where I regularly tried cases against attorneys who were in private practice. Many if these attorneys were highly experienced and effective criminal lawyers. Many were not.

Indeed at the time I was shocked at the level of incompetence of some of the attorneys. When I asked around, I found that many of these attorneys were domestic attorneys or had practices focusing on civil litigation. It seems that if one of their client’s came to them charged with a criminal or serious traffic offense, they would simply handle the case themselves instead of referring the matter to a criminal attorney. As I said, I prosecuted cases against these attorneys on a daily basis for five years and the clients were usually not well served. I have made the same observations from the other side of the aisle in 12 years I have spent as a full time criminal attorney and I witnessed a particularly egregious example last week.
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I am experienced Maryland criminal defense attorney who has counseled hundreds of criminal defendants and DUI suspects charged with fleeing the seen of an accident, Whether the driver has run into a tree and ditched his car, or ran someone over and sped off, experience shows that 90% of the time the responsible driver flees the scene because he is impaired by alcohol or drugs.

It is very easy for the police to prove a vehicle was in an accident. Often there are paint, blood or hair follicles that can be matched to the object or person hit. In cases where the vehicle is not ditched, police are often able to track down enough evidence to make a case against the owner/ driver. Sometimes the investigation takes days or weeks.

In these instances, however, it is almost impossible to prove the operator of the vehicle was impaired. This is because in order to convict a person of drunk driving, the police need to establish that the person was 1) behind the wheel, 2) had alcohol or drugs in his system, and 3) was above the Maryland legal limit of .08 or otherwise impaired.
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As a Maryland DUI/DWI Attorney/lawyer I represent many individuals who are charged with DUI or DWI while they are on probation for another crime. That person may be on probation for a prior Maryland DUI or DWI case or they may be on probation for a criminal case. The latter situation was what I was confronted with in Baltimore County Circuit Court last week. In this case my client was on probation for domestic violence and was facing up to six years in prision if he were to violate his probation. There is no easier way to violate one’s probation than to receive a subsequent conviction, even for a serious traffic matter (generally speaking court’s will not violate probation for non-jailable traffic offenses such as speeding). In this case the stakes were even higher than normal because the client was very much on the domestic violence team’s radar and they were chomping at the bit to request a violation of probation if he were to be convicted of the DUI and had let me know that they intended to seek the entire 6 year sentence on the violation. Needless to say, a plea bargain was not an option in this case.

Actually the case went back much further than last week and had in fact been postponed a number of times. I will get into the procedural background of the case shortly but first the facts: My client was driving his brand new Cadillac Escalade in Baltimore County one day last year. While admittedly driving approximately 50 mph in a 40mph zone my client claims he was clipped from behind by a as he began to negotiate a curve. According to my client, the car was tailgating him and when my client slowed down slightly to take the curve the car struck his rear bumper. This impact caused my client to lose control of the vehicle and strike telephone pole totalling the vehicle.
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In Maryland, DUI/DWI Attorneys are often confronted with cases in which a client was found not to be driving while impaired or under the influence, but instead was found to be sleeping in his or her vehicle while under the influence of alcohol. This situation implicates the so called “shelter defense” in Maryland. Unlike in some other states, Maryland legislators have chosen not to make sleeping in one’s vehicle an absolute defense to DUI/DWI charges. Some states have decided that as a matter of public policy, they want to encourage people who are driving under the influence to pull over and “sleep it off” so to speak, rather than continue to endanger the public by continuing down the road while under the influence. In these States, it matters not where the person was parked, how long they had been there or whether or not they admit to driving the vehicle to the location while under the influence. If the person made the decision to pull over and park their car rather than continue to drive under the influence, they simply may not be prosecuted for DUI/DWI in these states. Not so in Maryland.

In Maryland, the law essentially states that a person may use his or her car as a shelter while under the influence of alcohol so long as he makes no attempt to control the vehicle and does not present an imminent danger of doing so. A person in this situation can only be prosecuted for DUI/DWI if the facts and circumstances under which the person was discovered in the vehicle indicate that the person operated the vehicle while under the influence prior to using it as a shelter or that the person is imminently going to operate the vehicle in that condition. The leading case on this issue is Atkinson v. State. In that case the court laid out a 6 factor test to determine whether or not the person had driving the vehicle while under the influence or was simply using the vehicle for shelter.
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Maryland drunk driving offenses are charged as either DUI, DWI or both.

-DUI: Under Maryland law, driving under the influence (DUI) can be proven by a test result of .08% alcohol or more or by evidence showing that the driver’s normal coordination has been substantially impaired as a result of the consumption of alcohol. The maximum penalties are 1 year and $1000 for a first offense, 2 years and $2000 for a second offense, and 3 years and $3000 for a third offense. DUI also carries 12 points with the MVA and at a hearing the driver’s license may be revoked.

-DWI: Driving while impaired (DWI), although a lesser offense under Maryland law, is still a serious crime and can be established by evidence showing that the driver’s normal coordination was impaired to some extent as a result of the consumption of alcohol. This offense can be proved by evidence of a test result of .01% or more, but less than .08%. The maximum penalty is 60 days and $500 for a first offense and one year and $500 for a subsequent offense. DWI also carries 8 points with the MVA and at a hearing the driver’s license may be suspended.

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Maryland Criminal and /DUI/DWI Attorneys frequently represent individuals who are charged with driving under the influence of alcohol, DUI, or driving while impaired by alcohol, DWI, by Maryland Transportation Authority Police or Maryland State Troopers. In many of these cases the entire stop is videotaped by the State Trooper or MTA Officer and this video tape can be subpoenaed by the Maryland Criminal/DUI/DWI Attorney. In a recent DWI case that I had in Baltimore County District Court, my client had blown just a .07 and insisted that he had not failed the field sobriety tests as the MTA Officer who stopped him had claimed in his report. To be fair to the officer, he did not claim that my client had done terribly on the field sobriety tests but had nonetheless concluded that he had failed. After being retained by my client I immediately issued a subpeona decus tecum for not only the video tape but for the MTA’s General Orders regarding the operation of dash board video cameras known as MVR equipment.
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