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Not guilty of DWI, with a collision, bloodshot eyes, and wobbling

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A vehicle collides so hard into the one in front of it that the struck vehicle suffers substantial damage, and the struck vehicle then collides into the next car ahead. Police arrive to find my client with bloodshot and watery eyes, all upset about a personal matter. He is so unsteady on his feet that the police do not even attempt the junk science field sobriety tests. The police arrest my client for driving while intoxicated, driving under the influence of of drugs, and moving violations for the collision. In the end, the judge at this bench trial finds my client not guilty on all counts, except to convict him on the non-jailable charge of failure to control speed to avoid a collision.

This acquittal was not a shoe-in. We did have a compelling story, and a theme that nobody got hurt — only vehicles — to reduce a feeling of dissonance in the judge over acquitting a defendant who may well have, possibly in the judge’s mind, been under the influence of alcohol or medicine to have caused this significant collision on a major roadway.

Our Maryland courthouse for this case was among the courthouses where it often is best not to discuss the bench trial case with the prosecutor before the trial date, lest the prosecutor be reminded to line up his or her witnesses and to be otherwise prepared for trial. Here, the prosecutor had present on the trial date the two other drivers, the first-arriving police officer, and the reporting police officer.

The two other drivers testified to little that was significant against my client other than that he had caused the accident. They confirmed on cross examination that they experienced no physical injuries; I knew they would confirm no physical injuries, because I confirmed that with them in advance of trial.

The first-arriving officer said that my client had an odor of alcohol and was upset. That officer quickly turned my client over to the next-arriving, reporting officer.

The reporting officer testified that my client had an odor of alcohol on his breath and was upset, and presented the rest of the above description. On cross examination, the officer confirmed that his report on the case assured that my client had no odor of alcohol on his breath, in direct contradiction to his direct testimony and the testimony of the first-arriving police officer. Perhaps the reporting officer thought that denying any alcohol odor in his report might help make for a stronger case of driving under the influence of drugs. However, no evidence was presented about finding drugs nor about my client’s mentioning using drugs, which he did not mention.

The prosecution rested his case. I moved for judgment of acquittal, and the judge then turned to the prosecutor to start asking some questions. I was right that the judge’s asking the prosecutor questions about my own motion was a good sign. For instance, the judge asked whether any testimony had been presented whether my client did or did not have any orthopedic issues that might have made him unsteady on his feet. No. The judge asked whether my client’s eyes could have been bloodshot from his having been upset rather than as a result of alcohol use. Yes. The judge then proceeded to acquit my client of the charges of driving under the influence of drugs (seeing that no evidence had been presented about drugs) and driving under the influence of alcohol, leaving intact the less serious but still jailable charge of driving while impaired by alcohol.

The defense presented no evidence. In closing argument, I already had the judge’s own words to help, which is that no evidence had been presented about any orthopedic challenges, or not, that would have made my client unsteady on his feet. In case the judge was wondering whether the reporting officer had made a typographical error in writing that my client had no odor of alcohol, I pointed out that the first officer, who claimed an odor of alcohol on my client, was claiming something not claimed by the reporting officer. I also pointed out that the first officer did not classify the alcohol odor, for instance as weak, moderate or strong. I also pointed out that even some non-drinkers’ breaths smell of some alcohol even when they have had no drops of alcohol. With that, the judge started nodding in agreement. Yes! I pointed out that the police arrived when my client was already upset about a personal matter, that could have caused the bloodshot eyes, and that his demeanor and balance could have been exacerbated by the startling and upsetting event of the collision.

The judge ended up only finding my client guilty of the moving infraction of not controlling speed to avoid a collision. Not bad. Not bad at all, unless one is on the opposite side of me and my client.