Fifth Time DUI/DWI Repeat Offender Successfully Defended of the most difficult Maryland DUI/DWI cases that Maryland DUI/DWI Attorneys are called upon to handle are cases in which the offender has prior convictions for Driving Under the Influence or Driving While Impaired. These people are known as “repeat offenders” and are, as one would expect, generally treated far more harshly than people charged for the first time. State’s Attorney’s typically seek jail terms for people with one or more prior convictions and file enhanced penalties which allow for sentences of up to 3 years instead of just 1 year which is the maximum penalty if the State has not filed the enhanced penalties. This week I kept an offender with four prior convictions out of jail in spite of the fact that the State had a virtually bullet proof case against him. I will explain momentarily but first a few general observations about representing repeat offenders in Maryland.

Judges are generally very open to requests for jail from prosecutors for repeat offenders and are usually only deterred from sentencing someone to prison if significant steps have been taken by the offender to address the underlying alcohol problem so the court can be confident that the defendant will not re-offend. Judges often require home detention monitoring, long term inpatient treatment, half way houses, frequent testing for alcohol and drug use and in some extreme cases, 24/7 monitoring of the person to ensure that he or she is not drinking. This can be done now by fitting a person with an ankle bracelet that monitors the person’s sweat for the presence of alcohol. For each subsequent offense a Maryland DUI/DWI Attorney must require the client to take more and more elaborate measures to put him or her in a position where the attorney can argue to the court that a jail sentence is not appropriate and have that argument be taken seriously by the court.

In addition to ensuring that the client takes some or all of the steps listed above prior to the court date, it is of equal if not greater importance for the Maryland DUI/DWI Attorney to ensure that the client appears in front of a favorable judge. For this reason, it is imperative that a person charged with Driving Under the Influence or Driving While Impaired and in particular subsequent offenders, research the background and qualifications of an attorney prior to hiring him or her. I have blogged about this subject in the past but I cannot stress the importance of making sure that the attorney has BOTH substantial experience handling these types of cases and has substantial experience in the jurisdiction where the person is charged.

It is simply not sufficient to determine that the attorney has handled large numbers of DUI’s or DWI’s over an extended time period if the client does not bother to take the further step of making sure that the attorney is experienced in the jurisdiction where the person is charged. This because it is vital that the attorney have an intimate knowledge of the tendencies of the judges on that particular bench.

It is equally insufficient to determine that the attorney appears regularly in the jurisdiction without also determining that he or she regularly handles alcohol related driving offenses.

As I noted above, I represented a 66 year old man on his fifth offense this week and kept him out of jail. This in spite of the fact that he was still on probation for his fourth offense and the State had a rock solid case against him. The facts of the case were that a police officer on foot patrol watched my client drive down a street in Northeast Baltimore County and park his car illegally (he parked against the northbound curb with his car facing south – in other words facing in the wrong direction).

The officer walked over to the defendant who was by the time he got there, out of the car and told him that he needed to either turn the car around or move it to the other side of the street or that he would give him a ticket. During this brief encounter, the officer noticed a strong odor of an alcoholic beverage on the defendant’s breath and noticed him to be swaying from side to side as he spoke to him. He asked the client to perform the standardized field sobriety tests and after my client performed very poorly on them, arrested him and charged him with driving under the influence and driving while impaired. The worst part (or the best) about this arrest from my client’s perspective was that he had driving only about one block before being arrested. His home is only a block away from the bar he was drinking in and the only reason he drove instead of walking is that he has very poor circulation in his legs which causes significant pain when he walks more than a few steps.

Certainly not the most egregious facts to be sure but the case is basically indefensible. There would be no argument that the officer illegally stopped the defendant because there was no stop. A police officer can walk up to anybody he wants to talk to them in public and it is not considered a stop by the courts. Instead these interactions between cop and citizen are know as “mere encounters” that do not require probable cause or even reasonable articulable suspicion to be developed by the officer. There was also little doubt that the defendant was under the influence based on the officer’s observations of the defendant, his poor performance on the field sobriety tests and my client’s admission that he had “too much” to drink.

Recognizing that the State had a strong case and that my client was in peril of going to prison for up to 3 years, I immediately arranged for him to enter 28 day inpatient treatment program. I also insisted and he agreed, to go directly from the inpatient program to a halfway house and to remain there until the court date. My theory on this is that it would less likely that a judge would pull him out of a halfway house to send him to jail than if he had simply completed a program and was sleeping in his own bed. I then put together a mitigation presentation to highlight all of the positive accomplishments of my client’s life as well as a list of his medical problems including the poor circulation issue noted above.

Still, I knew that none of these measures would be enough to spare him a lengthy jail term if I were unable to maneuver him in front of a favorable judge. This is where my intimate knowledge of the Baltimore County District Court bench came in very handy for the client. I was a prosecutor in Baltimore County and have appeared on a daily basis in both the District and Circuit courts for over 15 years, so I know the judges well. I have also handled thousands of DUI/DWI’s so I know which judges are receptive to which arguments in this cases.

Fortunately for my client I didn’t have to do much maneuvering because on the very first trial date he ended up in front of the best judge he could have possible drawn. Had this not been the case I would have taken a series of tactical steps, including postponements and possibly jury trial requests to get him in front of a favorable judge. At any rate, because of my knowledge of the bench, I was able to recognize that it wasn’t going to get any better for him than appearing before this particular judge. I entered him into a plea and as I expected, the judge agreed with my argument that my client was well on his way to recovery and did not send him to prison. Instead he placed him on probation and required him to remain in the halfway house for an additional 2 months. A very good result considering his record and the strength of the State’s case against him.

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