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“Why doesn’t your client pray a jury trial?,” the cop asked. We answered with an acquittal

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Image from National Institute of Standards & Technology.

For years in one of the Maryland counties where I practice, one judge has been the first stop in the Circuit Court for all appeals and jury trial demands from the District Court, except for handgun, civilian assault, and employee theft cases. 

Whatever this judge’s motivation for doing so —- whether to let the Circuit Court focus on more serious cases, to at least give people with clean or light records a short enough sentence (often without any jail time nor probation) so as not to lose livelihoods, or for some other reasons —- this Circuit Court judge has been manna from heaven for criminal defendants, constantly offering sweet sentencing plea deals at a dizzying pace. Better stated, he is manna for defendants with good lawyers to advise what to do with the judge’s offers and who are still willing to try cases in District Court seeing that an acquittal or dismissal is better than a guilty in front of this or any other judge even if the sentence is low. I am not aware of any such judge anywhere else that I practice law. 

This judge is beyond mandatory retirement age for full-time judges. He sits part-time. One day he will leave the bench, but that announcement has not yet been made. What happens to those criminal defendants who are still awaiting a hearing in front of this judge when he no longer is sitting? Will any replacement judge replicate his sweet sentencing deals, in a state where judges stand for re-election every fifteen years? 

In this county, I usually resolve my cases in the District Court, usually not needing to go before this or any other Circuit Court judge, but it is comforting to know that if a District Court judge convicts and slams my client with a harsh sentence, within a week or two I will be before this Circuit Court judge either to plead guilty before him or to set the matter in for a trial de novo with or without a jury, at the sole choice of the defendant. 

A few weeks ago, I was in a District Courthouse in this judge’s county for a drunk driving trial. Whether disingenuous or not, the cop expressed surprise that my client was not just praying a jury trial to get in front of this Circuit Court judge, where he certainly would have gotten a probation before judgment (involving no points off the license) with a guilty plea before this Circuit Court judge, without having to do a day of probation. I told the cop we were going to trial right here, in District Court. He asked why. I answered: “We might win.” Moreover, our District Court judge likely was going to give a probation before judgment had we lost the trial. And win we did. 

During the significant wait for our trial to start, in the hallway I chatted informally with the police officer about this and that, and about my client’s case. In a state with plenty of informality among criminal defense lawyers, prosecutors, judges, and police (for better or worse), this particular county very much underlines such informality. 

Sometimes police officers testify to damaging humdingers that are found nowhere in their police reports nor the other evidence obtained pretrial. Here, in the hallway and on the witness stand, fortunately, the officer confirmed that the closest he came to seeing my client driving was his constantly turning the key in the ignition, with no results, not even a whimpering spark. 

At this bench trial, the officer testified that he arrived at the scene due to a call of an alleged drunk driver. The judge overruled my objection to the reason the cop arrived, but limited that testimony to the issue of probable cause and not to guilt-innocence. 

The officer said that he saw my client in a car on the side of the road, several times trying to turn on the ignition with no results. He smelled alcohol, conducted the junk science field sobriety tests (the judge overruled my objection that reasonable articulable suspicion was absent to conduct such tests). He offered a breath test at the police station, which my client declined. 

In moving for judgment of acquittal, which the judge granted, I pointed out that the key element of driving or attempting to drive were absent from the prosecutor’s evidence. Yes, the car was on the side of a busy street with the left-side tires blown out. However, the prosecutor’s only witness, the cop, only saw the car stationary. Therefore, we had no way to know how long the car had been there, whether and when (if ever) my client had driven it there, or whether someone else had driven it there only for my client to be trying to drive it for the first time when the cop arrived. The evidence did not establish whether my client drove the vehicle to that location while sober, and later returned to the car after having imbibed and with the car inoperable. No evidence was presented about the identity of the car’s owner. 

I also argued that the charge had not been proven, because all the charging documents alleged a February 20, 2010, incident, but the officer’s testimony — led date-wise by the prosecutor -“ was about events from February 18, 2010, two days earlier. 

The judge agreed that the prosecutor’s evidence did not satisfy the requirement of driving or attempting to drive, where my client merely was trying unsuccessfully to turn on the ignition. He said the two-day variance between the charging documents and the police testimony was problematic, but did not reach that issue head-on. 

In arguing for acquittal, I relied principally on two appellate cases. The first is  Atkinson v. Maryland, 331 Md. 199, 627 A.2d 1019 (1993), which provides several factors to consider about whether a drunk driving defendant has been driving or attempting to drive a vehicle while under the influence of alcohol, including whether the ignition is on and the engine is warm. Under Atkinson, merely sleeping drunk in a car’s driver’s seat with the ignition off but the keys in the ignition is not sufficient to obtain a drunk driving conviction. 

Atkinson does not deal with a defendant who is in an inoperable car. From Idaho, though, is an appellate decision that directly addresses whether a drunk driving conviction may be entered where the vehicle is inoperable. Idaho v. Adams, 142 Idaho 305, 127 P.3d 208, (Idaho Ct. App. 2005). Adams affirmed the trial court acquittal where:

After the close of evidence, Adams moved for a judgment of acquittal on the ground that the car was not a motor vehicle for purposes of the DUI statutes because it was not capable of being self-propelled [even though the ignition was on, but Adams presented testimony that the transmission did not work]. The district court agreed and entered an acquittal on the ground that the State had not established that Adams’ vehicle was subject to being driven or controlled. The court noted that if the vehicle had been reasonably capable of being put into operation or if it had been parked on an incline making it capable of coasting, the ruling would have been different. The district court reasoned that the driving under the influence (DUI) statutes are designed to prevent risk to the public from persons operating or controlling motor vehicles and that such risk did not exist where the vehicle was inoperable.

Adams, 142 Idaho at 208, 127 P.3d 311,

Referencing Adams, a federal magistrate judge in the Western District of Virginia acquitted a defendant of drunk driving where the car was inoperable, having run out of gas. U.S. v. Stephenson, 2007 U.S. Dist. LEXIS 60518 (W.D. Va. 2007). 

Considering the foregoing law and circumstances, this case should not have been prosecuted in the first place. Praised be the trial judge for putting the brakes on the prosecution.