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.
The police arrived on the scene shortly thereafter and questioned my client. The arresting officer claimed that my client gave two different stories at the scene. The first story, according to the officer, was consistent with the above account. The second story was that he finally admitted that he was not struck and had just lost control because he was going to fast. The officer noted that my client had bloodshot eyes and dilated pupils and was acting in a nervous and excited manner. She called in another police officer who was trained to conduct field sobriety tests and arrested my client based on those results. The police then transported my client back to the police station where he agreed to take a breathalyzer and blew a 0.0. They then called in another officer who was a trained “drug recognition expert” who ran my client through another battery of tests and concluded that was under the influence of a narcotic and a central nervous system depressant. The officers’ then asked my client to take a blood test which he refused. The police recovered a prescription bottle in my client’s name that was half full with the drug suboxone.
Getting back to the procedural history of the case, because DUI’s are misdemeanors, the District Court is vested with original jurisdiction to hear these matters. This case was actually set for trial twice in the District Court. On the first trial date we drew a judge whom I knew had great difficulty putting the word “Not” before the word “Guilty” so I requested a postponement in the hopes of getting a better judge draw on the next trial date. Unfortunately, on the next trial date we drew a judge who, while certainly willing to say Not Guilty, was known as one of the toughest sentencers on the best and in particular on violations of probation. I believed that I had no choice but to remove the case to Circuit Court by praying a jury trial.
Once in Circuit Court I had to postpone the case several more times before finally drawing a good judge. The case was at this point, more than a year old. On my advice, my client waived his right to a jury and selected a court trial. The first witness called by the State was the arresting officer who admitted on cross examination that my client was able to follow directions, did not slur his words and was not unsteady on his feet. Ultimately she admitted that she called in the other officer to conduct field sobriety tests only because my client “was acting a little weird”. The prosecutor tried to get her to testify as to what suboxone is but I objected that she was not qualified as an expert and therefore could not offer such testimony. The judge agreed and sustained the objection.
The next witness was the officer who conducted the field sobriety tests. He was not well prepared by the prosecutor and did a terrible job. In his report he said that my client exhibited 4 of 8 clues on the walk and turn. My first question on cross was to ask him to name the 4 clues that my client did not exhibit. He couldn’t do it and it threw him back on his heals. I then attacked the details (where the devil always resides) of the clues that he said my client exhibited and he could not recall them. All in all he was a very ineffective witness.
The last witness was the DRE or Drug Recognition Expert. This was the witness that I was most concerned about because he would potentially be able to offer opinion testimony as to what my client was under the influence of and identify the prescription Suboxone as a narcotic for the court. Unfortunately for the State, they had not complied with the new discovery rules (these are detailed in our criminal blog in a 6/25/08 entry) which require the state to disclose the identity of the expert along with a synopsis as to what opinion that expert will offer and a copy of any reports generated by the witness. The DRE, as I was certainly aware, had generated a detailed report of his examination of my client but this report was never disclosed in spite of my demand for it. The State was unable to qualify the DRE as an expert and was therefore unable to elicit opinion testimony from him. As a result there was no evidence as to what suboxone is and no evidence that my client was under the influence of a drug.
My client was found not guilty of all counts with the exception of negligent driving – a one point non-jail-able citation that cannot violate his probation.