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Rowe to the rescue

Apr 08, 2009 Rowe to the rescue

Image from National Institute of Standards & Technology.

Where I usually practice law in Maryland, a drunk driving defendant with a good driving record and nothing unusual in his or her case is a good candidate for a probation before judgment after any guilty verdict. A PBJ prevents one from losing points and driving privileges so long as probation is not later found by the court to have been violated.

Many defendants feel particularly enticed to plead guilty to drunk driving in Maryland when the prosecutor offers a guilty plea with the dual enticement of no opposition to a PBJ and a dismissal of the driving under the influence charge (carrying up to a year in jail with twelve points off one’s license) for a guilty plea to driving while impaired (carrying up to sixty days in jail with eight points off one’s license).

My clients with no prior drunk driving convictions rarely are charged with violating drunk driving probation in Maryland. Therefore, when it looks like a judge will give a probation before judgment even if my client goes to trial, I advise a trial. This is in line with my advising a trial for any criminal charge whenever the risks of a worse outcome at trial seem not much higher than the risks of pleading guilty.

The defenses against a drunk driving charge are many, and I generally detail some of them here. Maryland has some particularly beneficial drunk driving defenses from court opinions and other legal authorities that are not all found in the other courts where I practice. One of them is the Rowe rule that a mere allegation of an unsafe lane change, by itself, is not sufficient to stop a car. Rowe v. Maryland363 Md. 424, 769 A.2d 879 (2001). Once the stop is suppressed, the defendant wins the drunk driving prosecution.

One police officer told me that he follows a car long enough for it to make multiple traffic violations, to minimize the chance of suppressing the stop. The corollary to that is that many cops seem to tailgate suspects in a foul effort to draw a traffic violation foul, including getting the suspect to speed to get away from the tailgating.

Recently, I went to court for a drunk driving case expecting that the grounds for the stop would be an "abrupt, unsafe" lane change without signaling, and speeding. I came armed with Rowe for the unsafe lane change charge. For the speeding claim, I expected more of an uphill battle, because judges routinely allow traffic stops for allegedly reasonable articulable suspicion of excessive speed without requiring a showing of properly calibrated and operated speedometers, lasers and radars.

In this particular trial, I obtained suppression of the stop — and thus an acquittal — after the following cross examination of the stopping police officer:

JK: When you saw my client’s car, you were coming from part-time security work at a store?

Police: Yes.

JK: Have you ever written any reports or notes on this case?

Police: No.

JK: Officer W______, who was not present before you stopped my client’s car, is the one who wrote a report on the case?

Police: Yes.

JK: When you first saw my client’s car, were there any cars directly to his left headed in the same direction?

Police: I do not recall.

JK: When you first saw my client’s car, were there any cars directly to his right headed in the same direction?

Police: I do not recall.

JK: When you first saw my client’s car, did you see any cars in front of my client’s car in his same lane of travel?

Police: I do not recall the precise positions of any cars that evening.

I had not asked the police officer for "precise positions", so I continued my questioning in the same vein, until the judge asked the cop if he cop remembered anything about any cars being around my client’s car. Witnesses usually are less willing to weasel around a judge’s question, and the cop forthrightly answered "no," aside from his earlier testimony that there was a car to the right and left of the cop’s own car.

I thought the prosecutor was then going to transition to try to show reasonable suspicion to stop my client for exceeding the speed limit. I was ready for that, expecting no evidence to show a properly operated and calibrated speedometer, radar or laser; no evidence to show steady pacing of my client’s car; and no evidence to show a sufficiently traveled distance interval to determine that my client was speeding. Although the cop previously talked about excessive speed, over my objection, the prosecutor did not obtain more details than that from the witness stand other than the cop’s testifying over my objection that the cop was traveling fifty miles an hour (but was silent about whether he was matching the speed of my client) and that the speed limit was 35.

I moved to suppress the stop under Rowe. The judge pointed out how the facts in Rowe were more sympathetic than mine, because Rowe was stopped for briefly driving over the white line separating the shoulder from the driving lane, whereas my client was stopped after going into the lane to his left. The prosecutor tried to isolate Rowe to those facts. I replied that Rowe directs trial judges to consider the totality of the circumstances as to whether the allegedly unsafe lane change presents any real risk of a collision with other cars. The judge interrupted me and asked the prosecutor’s response, which suggested he was leaning in my direction and wanted to save time if the prosecutor was not able to change that, which the prosecutor was not able to do.

The judge suppressed the stop without needing further argument from me. Otherwise, I might have pointed out that whether or not we like Rowe (criminal defense lawyers love the opinion), we are stuck with it and bound to follow it unless and until the appellate courts modify the opinion.

The drunk driving laws are draconian, rely heavily on unreliable breath testing machines and often unreliable operators, and create a per se crime for driving with a blood alcohol content exceeding 0.08, which is a level too low for a huge percentage of people to recognize that they are even buzzed or drunk. Consequently, the drunk driving laws erode respect for and confidence in the criminal justice system and in police. When defendants have the resources to do so, they should fight such prosecutions tooth and nail. Jon Katz 

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