Handled by Leonard R. Stamm
This listing of cases is not meant to imply or represent that all cases end favorably for all clients. There are no guarantees, express or implied, as to a result in any particular case.
Sample Case #1
The client was not feeling well, had feelings of vertigo, and called his physician for an appointment the day before his arrest. The day of his arrest, he called his doctor and canceled the appointment because he was feeling better.
Later that night he was pulled over by a Maryland State Trooper for excessive lane changing and weaving on the Capital Beltway, Interstate 495. The trooper followed him for a quarter of a mile before the client would pull over. The trooper detected a very strong odor of an alcohol beverage on the client. When exiting the vehicle the client had extremely poor balance and had to be assisted. He did not respond to the officer's commands and was arrested and put in the back seat of the trooper's car.
While in the car, the client defecated in his pants. At the station he submitted to field sobriety tests and his performance was poor.
At the station he blew a .18 on the first test and then refused the second test, required by Maryland regulations. He was deemed to have refused the breath test.
Three days after his arrest he saw the physician, who diagnosed him with viral labyrinthitis. The physician testified at trial that the diagnosis was confirmed by the presence of residual horizontal gaze nystagmus and was consistent with every observation the officer made except for the odor of an alcohol beverage. The breath test was not offered by the State because the client had only submitted to one test.
The judge found the client not guilty of all alcohol related charges.
Sample Case #2
The client had been to a bar and was on his way home with 2 women when he pulled over to relieve himself. A police officer seeing this stopped and investigated a possible DWI. The officer detected an odor of an alcohol beverage on his breath and administered field sobriety tests which he said the client failed.
At the scene, the officer offered the client a breath test at the station. The client asked what would happen to him if he submitted to the test, to which the officer replied that he would have to accompany him to the police station, and if the test was .10 or more, he would go to a commissioner and stay in the lock up for 3 hours until he sobered up. The client asked what would happen if he refused the test. The officer said he would release him at the scene. (To promptly go home with the 2 women!). The client refused to take the breath test.
At the hearing to determine whether the client would lose his license for 120 days for refusing the breath test, the Administrative Law Judge held that the officer had given the client improper advice and took no action.
The officer recommended the prosecutor drop the case in court.
Sample Case #3
The client passed a Maryland State Trooper northbound on I-270 who was traveling at 65 mph. The speed limit on that part of I-270 is 55 mph. He pulled over the client, who had recently moved here from Belarussia. Field sobriety tests were conducted and the client did not perform to the officer's satisfaction. At the station, the client submitted to a breath test with a result of .10.
The client did not request a hearing within 30 days of arrest to contest the administrative suspension of his driver's license at the MVA as a result of a test result of over .10 and received a 45 day suspension of his license.
Even though it was more than 30 days after arrest, we requested a hearing and alleged that the client had failed to timely request a test in part as a result of the language barrier and in part because the officer did not offer the client an opportunity to request a hearing while he was still at the police station. The hearing request was denied and we appealed to the Circuit Court for Montgomery County, Maryland.
The circuit court reversed the suspension and ordered the MVA to give him a hearing. At the hearing the officer was subpoenaed to attend but failed to. The client testified he did not fully understand the implied consent advisement and a no action was entered.
In court, after numerous pre-trial motions to exclude the breath test were denied, the trooper testified that he based his stop of the client on the speed registered on his speedometer and nothing else. However, he was unable to locate any document to verify that the speedometer had been properly calibrated. He could not prove that the speedometer was reliable and accurate. As a result the court sustained an objection to the speed the trooper was driving, and therefore the State could not prove the speed the driver was traveling. Since the State could not prove the client was speeding, the motion to suppress all evidence as the result of an illegal stop was granted, and the client was acquitted of all charges.
Sample Case #4
The client was stopped by an officer operating stationary radar on Maryland Rte. 50 southbound for going 75mph in a 55 mph. The officer detected an odor of an alcohol beverage and had the driver exit his car to perform field sobriety tests. Field sobriety tests were conducted and the client did not perform to the officer's satisfaction. At the station, the client refused to submit to the breath test.
Before trial, which was begun around 4:00 p.m. after waiting in court since 8:45 a.m., the judge announced that he had to leave at 5:15 p.m. Both sides indicated that the remaining time should be sufficient with a one police officer trial.
At trial, the prosecutor turned out to be extremely inexperienced and unprepared. He asked numerous leading questions for which objections were sustained by the court.
At 5:15 p.m., as a result of vigorous objectioning by defense counsel, the speed of the client's vehicle had still not made it into evidence. The judge announced he had to leave and the case would be reset on a different day in 1 or 2 months. As the judge was about to leave the courtroom, defense counsel objected to the case being postponed and argued that although resetting the case would technically not violate double jeopardy, that it would violate double jeopardy as a practical matter because the prosecutor would have 1 or 2 months to figure out how to get the speed in evidence. He would get an unfair second chance to prove his case. The court agreed and granted a motion made right then for a judgment of acquittal.
Sample Case #5
The client was stopped by an officer who followed him for about one half mile. The client had been weaving all over the road, a one laned highway. When the client was observed, the officer detected a strong odor of an alcohol beverage and had the driver exit his car to perform field sobriety tests. Field sobriety tests were conducted and the client performed extremely poorly. At the station, the client refused to submit to the breath test.
At the hearing regarding the potential suspension for 120 days for refusal to submit to a breath test, the client testified that he refused to submit to a breath test at the scene and when he got to the station, but that the DR-15 Advice of Rights Form, containing the advice regarding the penalties to be imposed for failing and refusing the test, had been signed by him when he was getting ready to be released from custody after having been there for over an hour. He thought the times on the tickets must have been in error, that he was stopped about an hour earlier than the tickets stated. If that was the case, he was right, the DR-15 Form was read later, not right after arrest as it should be. The officer was subpoenaed and the hearing continued.
The Montgomery County police communications tape revealed that the client was right, the officer had transposed 2:30 and 3:20 (approximately), meaning that the client had signed the form on his way out, at (approximately) 3:35 a.m., after he should have been given his implied consent rights.
At the next hearing the officer appeared and testified. He stated under oath that the time of arrest had been 3:20 a.m. and that he had given the advice of rights at 3:35 a.m., shortly after they arrived at the police station. After reading the form, the client refused the breath test.
On cross-examination, the officer was shown the citation he wrote, indicating the time of arrest was 3:20 a.m. He was shown his report sent to Motor Vehicles indicating the arrest was 3:20 a.m. And he was shown his police report showing the time of arrest as 3:20 a.m. He admitted under oath that all of these forms stated accurately the time of arrest, and that the client had been advised of his implied consent rights promptly after arriving at the police station and refused the test.
The administrative law judge (ALJ) allowed us to play the communications tape in her cassette player. When I removed it and the officer testified again, he admitted that all of his prior testimony had been in error. He stated that he transposed the numbers and the time of arrest was really 2:30 a.m. and not 3:20, and he apologized. The ALJ took no action on the MVA's proposed suspension.
When the case came to court, the officer did not want to testify. The case was reduced to reckless driving, and the client received probation before judgment, a fine without points or a record of the conviction.
Sample Case #6
The client was found passed out in his car at a gas station, next to the pumps, with the motor running. The passenger compartment was filled with smoke. The officer opened the driver's side door and smelled a strong odor of alcohol beverage on the driver's breath. The officer attempted to wake the driver and when he spoke, his speech was incoherent. The officer asked the driver to exit the car and he gripped the steering wheel and would not let go. The officer attempted to forcibly remove the client from the car and eventually he was able to do so. The client was arrested and charged with driving while intoxicated, driving while under the influence of alcohol, and resisting arrest. At the police station, the client refused to take a breath test.
At the hearing to contest the refusal to take a breath test, the officer was cross-examined about the arrest.
Q: Officer, I assume that one of the reasons you wanted to wake my client from the car and remove him, is because your were concerned about the possibility of carbon monoxide poisoning?
Q: And you did not know at the time whether the driver was suffering from carbon monoxide poisoning?
A: That is correct.
Q: And you still do not know whether the driver was suffering from carbon monoxide poisoning when you encountered him?
Q: And you cannot testify whether the observations you made of the driver were as a result of the consumption of alcohol or carbon monoxide poisoning?
A: That is true.
The administrative law judge took no action against the client's license, and in court, the officer recommended that the prosecutor drop the case.
Sample Case #7
The client was traveling northbound on New Hampshire Avenue in Montgomery County, Maryland. He was observed weaving in and out of his lane, almost hitting a curb. He was pulled over by an officer from the Maryland National Capital Park and Planning Police Department and given field sobriety tests. His performance was poor on the tests he was arrested. At the station he submitted to a breath test with a .12 result.
At trial, the officer conceded that he was not on a roadway that was adjacent to Maryland National Capital Park and Planning property (numerous park areas within Montgomery and Prince George's Counties). However he claimed that his jurisdiction to make the stop came from a concurrent jurisdiction agreement between Montgomery County and the Maryland National Capital Park and Planning Commission authorizing enforcement on "serious traffic offenses." He also claimed that a Montgomery County Police officer had written him a letter giving him county wide jurisdiction in addition to his other authority. Since the officer did not have either of these documents in court, it was not necessary for the court to decide the merits of these arguments and it sustained the objection to the stop of the client.
The client was acquitted of all charges.
Sample Case #8
The client was traveling northbound on New Hampshire Avenue in Montgomery County, Maryland. He was recorded by a laser going 62 mph in a 35 mph zone. The officer pulled out and activated his emergency equipment. The client pulled into a parking space in front of a beer and wine store. The officer approached him and detected the odor of an alcohol beverage. The client denied drinking although there was a cup with a yellow liquid that smelled like an alcohol beverage in the car. After providing his license and registration, the officer asked him to exit the car to perform field sobriety tests.
On the one leg stand test he put his foot down at 1004 and 1007. Then at 1017 he started counting 18, 19, 20, 21 and put his foot down. He also started the test during the instruction phase.
On the walk and turn test he lost balance during the instructions, started during the instructions, started on his left foot in front of his right instead of vice versa, and made an improper turn.
He also submitted to a horizontal gaze nystagmus test and the officer detected 6 clues, lack of smooth pursuit in both eyes, onset of nystagmus prior to 45 degrees in both eyes, and nystagmus at maximum deviation.
He was arrested. At the station he submitted to a breath test with a .10 result. The officer took a picture of the client, a 57 year old executive, wearing a T-shirt that said on the front, "BEER IS LIFE."
Before trial, the court ruled that the State could not present the breath test because the court (a different judge) had earlier ordered the toxicologist to respond to a subpoena duces tecum requesting initial certification records of the Intoximeter 3000 used in this case and the toxicologist had not complied.
At trial, the court overruled objections to the laser and the speed came in evidence as well as the stop of the client. The officer conceded that other than speeding the client committed no traffic violations. He also parked the car properly and properly provided license and registration.
The State was unable to get the horizontal gaze nystagmus test in evidence. The officer admitted that on the one leg stand there was no swaying or hopping or raising arms. The officer also admitted that on the walk and turn test the client took the proper number of steps, did not stop walking, did not raise arms, did not miss heel to toe, and did not sway. The officer also admitted that the walk and turn requires a line that the suspect can see and that there was none.
The State was unable to offer the opinion of the officer after he blurted out that it was based on the horizontal gaze nystagmus test.
The defense produced medical records going from 1987 up until 10 days before the arrest in June 1998, documenting a history of problems with his right ankle which "could limit his ability to walk in a straight line" diagnosed as "post traumatic degenerative arthritic process" and problems of balance resulting from gout arthritis in the left foot marked by swelling with severe pain.
In light of the medical records, and the State's case hinging on the performance of the two balance tests, the client was acquitted of the driving while intoxicated and under the influence charge. He was found guilty of speeding and given a small fine.