https://www.silvermanthompson.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.
The client was charged with driving under the influence of alcohol, driving while impaired by alcohol and negligent driving. I was out in the hall before the case and couldn’t help but overhear the client discussing (actually it was more like arguing) the case with his attorney. I had seen this particular attorney a few times but could not put a name with a face. Because of this, I was pretty sure he was not a full time criminal defense attorney. I overheard the attorney explaining to the client that he had to accept a plea because “he would definitely lose” if he took the case to trial. The attorney also explained to the client that he ” had a good judge” which he was actually correct about. I could tell that the client was not happy about pleading guilty but could not hear why. I found out why a few minutes later inside the courtroom.
It turned out that this was the client’s third DUI offense so he was definitely facing a jail sentence if convicted even with a “good judge”. I listened to the attorney do a reasonably good job qualifying his client for the plea and then listened to the facts of the case. The police responded to the scene of a disabled vehicle. When they arrived they found a car that had slid off of the road and become stuck in the mud. The defendant was in the vehicle but not in the driver’s seat. He was in the passenger seat listening to the radio. The keys to the vehicle were in the ignition but the engine was not on. The police found a half empty bottle of vodka in the vehicle and the defendant was clearly under the influence. The defendant admitted to drinking but claimed that he had not had anything to drink until after the car got stuck. He was never asked by the police if he was the driver. As the statement was read some of the other attorneys in the courtroom began to exchange knowing glances as this case had an obvious defense.
Under Maryland Law a person is entitled to use his motor vehicle for shelter, even if he is under the influence of alcohol. The leading case on this issue, Atkinson v. State, lays out several factors including the defendant’s position in the vehicle and whether the motor is running, for the court to consider in determining whether the vehicle was being used as a shelter as opposed to driving or attempting to drive the vehicle while under the influence. In addition to the so called “shelter” defense there was also the defenses that he was not the driver and even if he were, that he had not been under the influence when he was operating the vehicle and only drank after he became disabled.
Needless to say, the attorney did not pursue any of the defenses and instead plead the defendant guilty. He presented decent mitigation but only had his client in an outpatient program which is almost universally considered insufficient for a third offense anywhere in Maryland. The defendant was sentenced to one year suspending all but sixty days to be served in the Detention Center. I have certainly seen much longer sentences for a third offender but this defendant had a very good chance at an outright walk had the attorney recognized the obvious defenses to this case. Not only that but had the attorney really been familiar with this particular judge he would have know that not only is he a “good judge” in the sense that his sentences are on the lenient end of the scale but he is also a “good judge” in the sense that he doesn’t assess a trial penalty. In other words he will sentence the person to the same sentence if he has a trial as he would have had the person plead guilty. This is not always the case and because it is true of him there was simply no reason not to take a shot at winning the case in trial. In other words, the attorney really did get much of a bargain in exchange for his client’s plea.
After the case was I was told by another attorney who was present that as I suspected the attorney did not specialize in criminal defense or serious traffic matters. Instead he was primarily a real estate lawyer. I have no idea how the client ended up hiring him but I can only surmise that he failed to investigate the attorney’s qualifications before hiring him.
The real tragedy here is that this result was completely avoidable had the client taken just a few moments to investigate the qualifications of the attorney before retaining him. If the client had simply asked the attorney what percentage of his practice was criminal or how many DUIs the attorney handled each week or month, he would have become aware of his attorney’s lack of experience in criminal and serious traffic matters. The are also many other ways to investigate an attorney’s background to include contacting the bar association or researching the attorney’s case experience on Maryland Judiciary Case Search – http://casesearch.courts.state.md.us/inquiry/inquiry-index.jsp.
Criminal and jail able traffic cases are serious matters that can result in serious negative consequences for the the person charged. Researching an attorney’s qualifications is a relatively easy thing to do these days and a person really ought to spend at least as much time doing so as they would spend researching what movie they are going to watch on pay per view tonight.