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JB Umphrey
JB Umphrey, Lawyer
Category: Criminal Law
Satisfied Customers: 20232
Experience:  Handling criminal and probation matters for over 14 years.
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I have a question regarding a recent DUI/DWI Charge. I live

Resolved Question:

I have a question regarding a recent DUI/DWI Charge. I live in MD and the case is handled in two different arenas - the District Court (for criminal charges and fines) and the Administartive Hearings (DMV - for driving privileges).

The night of the incident I was told by two officers that there was a time limit, which they could not make me aware of (which now I've found out is 2 hours) where I had to make a decision as to whether I would take the breathalyzer. I was given the DR-15 form which explained my rights. I was also told my the two officers that neither of them could administer the test and that a technician would have to be present.

Long story short, the time expired, they said I refused to take the test. My lawyer is now telling me that things are not looking good because although there was no video tape, which would show that the police report is not true, the vehicle didn't have a camera installed which means the officers did not violate procedure. Any help?
Submitted: 5 years ago.
Category: Criminal Law
Expert:  JB Umphrey replied 5 years ago.
Thank you for using JustAnswer!

What is the basis for your lawyer's opinion that things do not look good?

The law does not require police officers to have camera in or to have the cameras "on" in their units.

Please remember, that I was not on the scene and I do not have the benefit of reviewing any police reports. What is your specific question that you would like assistance with?
Customer: replied 5 years ago.

His basis is because according to the Bi-Laws (not sure the exact verbiage he used) if a camera is installed in the vehicle, the officers have to make sure that it's functional and on during a stop such as a DWI. So when he sent in a request to receive the tape, they stated that there wasn't one. This led him to believe that they didn't follow their own protocol and we could use this in court, but later he found out that the car wasn't installed with a camera which means that his line of reasoning would not work.


I guess my main question is what can I do? The officers told me that night that if I took the test and was under the limit, I would be able to go back to my vehicle and not have any charges. The fact of the matter is that they were not able to get a technician over within the 2 hr limit, thus they stated that I refused to take the breathalyzer test, which if anyone reads the DR-15 form carries a heavier penalty that taking the test and blowing over .08.


I have already went through the Administrative Hearings and received my liscense, the judge believed my case and I had no problems, but now I'm not sure what to do. The officers wrote up a very incriminating police report, stating that I was slurring, stumbling, etc; all which could have been disproved by the tape, or brought doubt if the officers didn't follow protocol with having the tape on as directed in their procedure.


No my lawyer is telling me that it's going to strictly be my words versus the officers, and that the judge tends to lend on the side of the officer. The only thing I have going for me is that there is not a signature on the form by the Technician stating what my BAC level was or acknowledging the fact that I refused the test.


My lawyer lawyer stated last month when my case was continued for the 2nd time that I should consider taking a Probation Before Judgement, but to me this would be an epic failure because I am innocent and the officers committed an injustice that night and I feel that justice needs to be served.


What makes this situation even more interesting is that I am a government worker, and I am in process of getting my clearance and they are watching this situation very closely and I need this case to be dismissed, ortherwise I may be denied my clearance which would mean I would have to find new employment.


Last but not least, I was just wondering if there is anyway I could set up an appointment to speak to the judge on my own and at least explain to him what happened before my court date.



Expert:  JB Umphrey replied 5 years ago.
Thank you.

The judicial canons do not allow the judge to have a one-on-one meeting with you. That would be illegal ex-parte communication and the judge would be committing judicial misconduct if s/he did that.

If, for you, the only acceptable outcome is a dismissal, then you only have one option: T-R-I-A-L. Instruct your attorney to demand and prepare for a jury trial. It will be up to a jury to decide who to believe and whether or not the prosecutor can prove their case "beyond a reasonable doubt."

You know where the prosecutor's weak points are. Roll the dice and go to trial. It's the ONLY chance you have for a dismissal.

Good luck and best wishes! I hope that you find this information to be helpful and this answer to be ACCEPTable!
Customer: replied 5 years ago.

I will accept your answer, just one more quick question....can the judge speak with me with my lawyer present? I understand that you said a one on one meeting is not allowed.



Expert:  JB Umphrey replied 5 years ago.
Thanks. The judge can only speak with you if BOTH your attorney and the prosecutor are present. Both sides of the case must be present and in the room.

Good luck!
JB Umphrey, Lawyer
Category: Criminal Law
Satisfied Customers: 20232
Experience: Handling criminal and probation matters for over 14 years.
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