SUCCESSFULLY FIGHTING A DRIVING WHILE INTOXICATED CASE
I recently tried, and won, a driving while intoxicated case in the District Court. Every good criminal defense lawyer examines the facts of every case to see if it is defensible before ever considering a plea.
In this case I had a client from out of state who after a long day of work stopped for a few drinks before heading home. A police officer working in the area received two calls from his dispatcher advising that a truck matching my client’s vehicle description was driving erratically. Interestingly, in his report, the officer only indicated there was one call. The officer located my client and started observing her. In his report he wrote that she started to turn the wrong way down a one way street but then corrected herself, did not move her truck for ten seconds after a light changed at the next intersection and when she did move, she spun her wheels. He then pulled the client over, asked her to step out of the car and administered the field sobriety tests to her. The field sobriety test used in Maryland, and in most states, includes the horizontal gaze nystagmus test, the one leg stand and the walk and turn test.
The horizontal gaze nystagmus test requires the officer to make three separate observations:
- Does the eye lack smooth pursuit;
- Is there distinct nystagmus at maximum deviation;
- Is there nystagmus onset before forty-five degrees?
When the officer began to testify about this test, I was able to “Voir Dire” him. This means that I had the opportunity to challenge whether or not he was an expert in administering the horizontal gaze nystagmus test.
It turned out that he had only been a police officer for four years and had, in his words, approximately twenty DWI arrests. I believe, based on his later testimony, that this was the first time he had ever been challenged. I was able to convince the judge that the officer did not know enough about the horizontal gaze nystagmus test to be considered an expert. There were numerous inconsistencies between the officer’s written report and his testimony on the stand all of which I was able to bring to the judge’s attention. Thus, at the close of the State’s case, I made a motion to dismiss the case and the judge granted it.
This was despite the fact that the officer testified that my client had failed the other two tests and had refused to take the breathalyzer.
I often counsel my clients, especially if it is a first offense, to take the breathalyzer test simply because the administrative sanctions for not taking the test can often be more severe than what will happen to you if you don’t take the test. If you take the test and your breath level is not in excess of a .15, you are most likely going to receive, at worst, a forty-five day suspension of your license which will be modified to allow you to work, attend school, attend alcohol education and/or doctor’s appointments. If you refuse, there is a flat out suspension or you may be given the alternative to have the ignition interlock, commonly known as the “blow and go” placed on your car for one year. This, of course, is a fact specific decision that is pretty hard to make especially if it is late at night and you have had anything to drink.
More on this in a subsequent posting.
