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Dealing with a 2nd DUI

DUI, Jail Alternative

The first thing we advise clients is not to despair and surrender to fear. In this regard, one of the most important decisions to be made is whether the DUI charge is defendable. Remember, a second, third, or whatever DUI charge is still nothing more than an accusation by a police officer. The evidence is not stronger simply because a person has priors. As with all DUI’s do the normal aggressive trial preparation.

It is always best to have a two-step approach. Prepare for trial but have a proven and respected treatment program like IMPACT DUI in your back pocket as insurance. The side benefit is that treatment is always in your best interest regardless of whether you ever need it for court!

Beating the charge to avoid jail.

1. What was the basis of the traffic stop?

Did the officer make a traffic stop because he observed the client simply leaving a bar near closing time? Yes, there are police officers that “sit on bars” meaning that they actually hang out around drinking establishments waiting and watching individuals leaving late at night for the precarious drive home.

A number of DUI cases are successfully defended where the traffic stop is based upon a momentary crossing of the white edge-line, to check on the benefit of the driver for failing to drive in a single lane. The law under cases like Rowe v. Maryland is that a minor traffic violation that causes no danger to either the driver or others is insufficient as a basis for a traffic stop. Importantly, police officers in Maryland are no longer permitted to make traffic stops to check on drivers’ welfare.

Similarly, traffic stops due to equipment failures often create opportunities. The non-functioning third light is a good example. While cars are equipped with a third brake light, it is not required that this light actually function. Older cars frequently have a broken tag light. But the illumination of the license plate only requires that one of the tag lights function. Most vehicles are equipped with two tag lights.

2. How did the client perform on the field sobriety tests?

A thorough understanding of the field sobriety testing is vital in evaluating the quality of the officer’s testing and assessing the accuracy of his conclusions. In this regard, our long-term membership and active involvement with the National College of DUI Defense is vital.

In Montgomery County, police officers are trained to follow a specific protocol in administrating field sobriety tests. Opportunities are generated to attack the quality of the testing when a police officer deviates from these required protocols.

Environmental factors are incredibly important. For example, performance on field sobriety testing will be adversely affected by factors such as weather, lighting, temperature, and physical conditions such as a sloping roadway. One of the most common mistakes made by police officers is conducting testing in front of their vehicles with the flashing emergency lights directed at the driver. There is ample evidence of the dilatory effects caused by “strobe effect”.

3. Is the Breath Test valid?

There are a number of important issues presented in assessing the validity of the breath test.

  • Did the officer observe the client for 20 minutes prior to administrating the breath test? This is an absolute requirement as part of the Code of Maryland Regulation (COMAR) governing the admissibility of breath tests.
  • Is the certification of the testing equipment and testing sample valid, up to date and present in court?
  • Does the breath-testing officer have all his required certifications and are they present in court?
  • Did the defense lawyer make a proper pre-trial demand for the presence of the testing police officer and any other qualified testing personnel?
  • Does the client have any health conditions that can cause the presence of mouth alcohol? Frequently, we discover that a breath test reading may be unreliable due to the client suffering from Gastroesophageal reflux disease (GERD). This is a condition in which food or liquid travels backwards from the stomach to the esophagus (the tube from the mouth to the stomach). GERD often causes mouth alcohol to be present which will result in a high breath test result.

These and other issues are present in every Maryland DUI case. So, whether it’s a first, second or third DUI case, these issues need to be carefully and thoroughly investigated. Often, through effective trial preparation, a case can be won and jail and other possible consequences are avoided.

Alternatives to Jail in Maryland DUI Cases

However, there are cases where the evidence is such that a person must prepare for the consequences of being found guilty of DUI. In this regard, the most important advice I can offer is: If you can present a solid plan to a judge that makes sense and the plan is already working, then the judge won’t feel a compelling need to try to fix the problem himself.

Maybe you have been suffering, sometimes for years with the devastating disease that is alcoholism. In fact, one of the most challenging aspects of this is that most people facing DUI charges are incredibly successful, highly educated and wonderful members of our community.

You are a great parent and have the support of family and friends. Bring these important qualities into the courtroom.

Another important rule that should always be followed is that our clients may have a problem. It may even be a significant problem but we never let the prosecutor define the client by the problem!

Present a full three-dimensional picture of who you are. Come to court with a sound and reasonable plan that appropriately and comprehensively addresses the alcohol issue. Again, if the plan makes sense, and is actually working, it becomes much easier for a judge to endorse it.

Sometimes, it becomes necessary to delay a case. We may need time to fully create and implement the plan.

We have forged effective and close relationships with wonderful organizations such as IMPACT DUI, and Alcoholics Anonymous.

An important consideration for judges is that voluntary participation in the Weekend Alcohol Treatment program gives a reasonable and fair alternative to incarceration.

Take the time to strategize and create a comprehensive program designed to address what may be significant problems. Additionally, take the time to fully implement and integrate the program into their lives. By the time we actually do go to court, we can demonstratively show the court that we have a credible, intelligent and transparent plan that addresses our clients issues without the need for jail.

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