Law Offices of Elan B. Rafael, LLC.

3604 Eastern Avenue
Suite 100
Baltimore, MD 21224

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Law Offices of Elan B. Rafael, LLC.

Its important to remember that as a defendant you are presumed innocent and the state of Maryland has the burden of proving your guilt beyond a reasonable doubt. In deciding which defenses could apply in your case, I will look at all the evidence produced by the police and interview witnesses. Here are some common defenses:

Police Testimony About Your Driving

The prosecutor always relies (sometimes exclusively) on the arresting police officer’s testimony about your driving behavior, including:

  • Very fast speeds (speeding)
  • Very slow speeds
  • Uneven speeds (very fast, then very slow, for example)
  • Weaving from one side of a lane to the other
  • Crossing the center line of the highway
  • Running a red light
  • Hesitation in going through a green light

After we talk and I learn what happened, I may be able to present explanations for these driving behaviors that did not have anything to do with being alcohol-impaired.

Police Testimony About Your Behavior

A police officer may also testify about your appearance and behavior when questioned, including:

  • Slurred speech
  • Bloodshot eyes
  • Inappropriate joking or incoherent speech
  • Stumbling or not being able to walk very far
  • Pupil enlargement

Defenses to what the Police Office May Say

Some defenses include:

  • Lack of sleep
  • Allergies
  • Contact lenses
  • Stress due to personal circumstances
  • Medications
  • Foods recently ingested
  • Nervousness over being stopped by police
  • Physical impairments

Field Sobriety Test Defenses

When an officer suspects you may be too intoxicated to drive, he or she will likely ask you to perform what are called “standard field sobriety tests.” These tests are designed to assess your physical and mental alertness. There are three standard field sobriety tests:

  1. Horizontal Gaze Nystagmus test: This is a test where you track the officer’s pen, finger, flashlight, or some kind of stimulus moving just your eyes and not your head. What the officer is looking for there is a wobble in the eye, something called Nystagmus.
  2. Walk and turn test: There are two phases to the test. There’s the explanation phase when individual has to follow instructions. If they can’t that provides the officer evidence of possible intoxication. The other phase that can provide possible evidence of intoxication consists of numerous ways that the individual might not follow the officer’s exact instructions. The possibilities here are numerous.
  3. One Leg Stand Test: In this test, an individual is asked to stand on one foot and count to 30. What the officer is looking for is balance: do they hop, do they sway, do they use their arms for balance, or do they put their foot down?

In addition other non-standard field sobriety tests can include reciting the alphabet backwards and finger to nose test.

You do not have to do field sobriety tests: You are under no obligation to perform the roadside field sobriety exercises. They can be used against you in court if you are charged with DUI. The field sobriety exercises that Maryland police officers use are designed to be difficult and confusing. The goal of these exercises is to divide your attention and test your ability to listen to instructions and perform a task at the same time. The officer will judge not only your performance on the actual tests, but also on your ability to listen to the complex instructions. It is difficult for even someone who is sober and coordinated to perform these exercises the first time, much less someone who as consumed alcohol and is under the stress of a police officer watching.

You can politely decline: Very few people know that they can decline Field Sobriety tests. Understand that it will probably infuriate the police officer and will likely require you to spend a night in jail because the officer has already made up his mind that you had alcohol while driving. The good thing is that you depriving the police officer of evidence of your impairment.

The defenses to field sobriety tests are often the same as with officer observations. Medications and lack of sleep can make it considerably more difficult to perform these tests. Many people also have physical impairments caused by injuries – or simply aging – that make it impossible to perform these tasks under ideal conditions.

Your lawyer may cross-examine the arresting officer in detail as to whether the officer asked you if you had physical impairments or there were particular circumstances that would make it difficult to perform the tests. Your lawyer may also point out to the jury that many jury members may have similar difficulties performing the tests, such as by asking the jury if they could recite the alphabet backwards under the best of circumstances.

Elan Rafael

Call now for a free case review that will include
a report you can use even if you do not hire me
(410) 500-0000