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Dealing with a 2nd DUI
Got a 2nd DUI? Read this.
By Gary Gerstenfield, Esq.
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.
i. 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.
ii. Is the certification of the testing equipment and testing sample valid, up to date and present in court?
iii. Does the breath-testing officer have all his required certifications and are they present in court?
iv. Did the defense lawyer make a proper pre-trial demand for the presence of the testing police officer and any other qualified testing personnel?
v. 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.
Gary Gerstenfield is a Maryland criminal defense attorney that focuses on DUI defense.
Where did our best thinking get us? We concocted new ways to keep things going and the shame hidden. But at some point, the scorn of the ones who loved us most rang true. We had that moment when we quietly admitted to ourselves: “I’m stuck. And I can’t break free.”
So we tried everything that our best thinking offered — to fix ourselves. We tried quitting. We tried control. We tried tapering. Some of us even tried moving. But there we were, everywhere we went. Geography didn’t cure. Control didn’t work. Tapering? What a joke. We had to come to the end of ourselves to get to the beginning of recovery.
“I’m always ready to learn,” quipped Churchill, “I just don’t like being taught.” Addiction’s schools are different than ours. We wanted Princeton; addiction gave us prison. We prefer Yale. Addiction chooses jail. Just as addiction’s power — greater than ours — kept us in prison (“We admitted we were powerless…”) it would take a Power greater than ourselves to set us free. That’s what the second of twelve steps is all about:
“We came to believe that a Power greater than ourselves could restore us to sanity.” –Step 2: The Twelve Steps
After his second DUI, Michael Phelps — the most decorated athlete in history — found himself in rehab. No one but Michael can say what the full extent of his relationship with addiction is, but we do know this: Every swimmer in the world wants to beat Phelps. He’s the one to beat. But there’s something even stronger than Phelps. Addiction swims longer, and eventually faster, every time.
So what is a Power greater than ourselves and what does it involve? Is it treatment? Is it rehab? Is it therapy? Is it religion? What is it? Stay tuned to this blog to learn all about it — more will be revealed.
You’ve probably heard sad stories about people who relapsed. Bob had 2 years and he relapsed. He took one drink went down hard, and fast. He lost everything all over again. And this time he lost his wife for good. We’ve all heard stories of relapse. Maybe it’s even been your story.
Or maybe you heard that a certain person slipped. They had a one night stand with a drink or a drug. But they managed to make their way back into recovery the very next day. It was a slip. That’s all it was.
So it got you to thinking. Maybe you could do that. Maybe you could slip. There’s an occasion coming up when no one would ever have to know. A business trip. Or the wife is going away for a couple days.
There’s no small amount of debate about that word slip. Some people in recovery really dislike that word. They get seriously bothered by it. They say there’s no such thing. A slip to them is nothing short of a relapse. Go get your 24-hour chip or key chain again. Start all over. Debates have their place I suppose. But I’d rather not quibble over words.
It’s true that people on occasion do survive the so-called slip. But famously, many don’t. One drink or drug was all it took to set them back on the path to active personal destruction. Once again they found themselves stuck in the despair of addiction.
Whether you like the word slip or not doesn’t really matter. The reality is simple. Every relapse in history began with a slip. Every trip down to a new bottom started with a single bad decision.
The lottery is a tax on people who are really bad at math. A slip is a gamble and the odds are colossal against anyone who has ever struggled with addiction. A slip is a bit like playing the lottery. With your last dollar. So is a slip worth losing it all, all over again? Think about it. For yourself.
But here’s another very important thing to consider. Maybe you slipped last night. Reading a piece like this could get you thinking, why bother? You feel so demoralized by yesterday’s bad decision that you think it’s a forgone conclusion that you’ll automatically plummet into the abyss.
Hey. While it’s still today, you don’t have to let yesterday’s failure determine today’s success. Or tomorrow’s. Whether you decide to tell someone about it or not, get a new coin or not, know this: YOU CAN GET THROUGH THIS. Just start over. Today.
I’m a fan of telling on myself. I would. I would tell someone. And it’s always better to tell on yourself before any kind of slip. Tell on yourself for even thinking about it. But that’s just me. That’s my philosophy. I know that the power of recovery community is what I need to get through any kind of trouble, large or small, before or after anything ever even happens.
So. Thinking about a slip? Think that slip all the way through. Know where it can take you. But know mostly that you never have to play with that fire in the first place.
“We came to believe that a Power greater than ourselves could restore us to sanity.”
–Step 2: The Twelve Steps
It seems reasonable to assume that the phrase, “restore us to sanity” implies something we didn’t want to admit while stuck in active addiction: Alcohol went in, sanity went out. It’s one thing to admit that we did some pretty unconscionable things. But to imply insanity?
The old Latin proverb, “in vino veritas” means, “In wine there is truth.” It’s easy to understand what that can mean: As inhibition is lowered, secrets come out. The Babylonian Talmud says: “Wine enters, secrets exit…” It continues: “In three things a man is revealed: in his wine glass, in his wallet, and in his wrath.” The point? These are things that expose the true you.
Drugs and booze exposed the truth about our condition at that time. Our hiding was futile. Obviously, we didn’t tell the truth, but the truth was made clear, at least to everyone else: We lost all connection with sound thinking, wisdom, love, honesty, and truth to self. “To thine own self be true” was a maxim we could not keep. Let’s face it: We lost our sanity.
I was listening to an attorney make a defense for his client in court for DUI. He said, “Your Honor, alcohol went in, and logic went out, as it does with anyone who drinks too much.” Things like legal problems, losing friends, jobs, respect, trust, and the like, are all signs that a person is “losing it.”
It’s easy for many people to forget the rest of the Latin proverb. The phrase is often continued thus: “In vino veritas, in aqua sanitas“, meaning, “In wine there is truth, in water there is health.” Maybe the second half of the proverb isn’t quoted as much because wine will always seem sexier than water. But water is essential to health. 70% of your body agrees. The greatness of recovery is that it’s healthy for anyone regardless of their background.
The restoration of our sanity means that we get to regroup, recoup, and realize our real potential. But this requires “a Power greater than ourselves.” Many of us have balked at this notion. But our best thinking in active addiction got us in the mess we found ourselves in. There a higher way and a power greater than ourselves. We’ll talk more about that in the next post. Stay tuned.
So we tried everything that our best thinking offered — to fix ourselves. We tried quitting. We tried control. We tried tapering. Some of us even tried moving. But there we were, everywhere we went. Geography didn’t cure. Control didn’t work. Tapering? What a joke. We had to come to the end of ourselves to get to the beginning of recovery.
It seems reasonable to assume that the phrase, “restore us to sanity” implies something we didn’t want to admit while stuck in active addiction: Alcohol went in, sanity went out. It’s one thing to admit that we did some pretty unconscionable things. But to imply insanity?