Yesterday, the NJ Appellate Division ruled on the case of Penn National Insurance Company v. Costa. This NJ personal injury case involved an injury on land which Frank Costa owned and lived. Next to Mr. Costa’s house was his business. An employee of his business walked over to Mr. Costa’s driveway (on his personal property) where Mr. Costa was working on a vehicle and was injured when he slipped on ice and fell on a “bumper jack” causing serious injuries.

The Appellate Division analyzed NJ law on the topic and stated that because the injuries were directly related to the maintenance of the vehicle, the NJ car insurance company must pay for the personal injuries.

N.J.S.A. 39:6B-1 requires owners of motor vehicles to have liability coverage “insuring against loss resulting from liability imposed by law for bodily injury, death and property damage sustained by any person arising out of the ownership, maintenance, operation or use of a motor vehicle.”

Homeowners’ Company Wins!

Another question regarding the ubiquitous DUI breath machine, in Maryland the EC/IR; soon to be replaced by the newer and more advanced EC/IR II. Question: what about if I burped before I blew in the machine? What if I have GERD, acid reflux, or other digestive issues?

GERD and/or acid reflux are medical conditions that cause a person to suffer heart burn types of pain in their chest which often results in belching gaseous stomach contents up through the esophagus and into the mouth. These gas contents can include stomach acid which burns the chest, ie., heart burn, and can include alcohol that resides in the stomach or upper digestive tract.

Ok, so what? There can not be enough alcohol in the upper digestive track to actually influence the alcohol reading on the magic box, right? Consider this: as you know from earlier posts, the machine extrapolates blood alcohol content in the body by measuring the perceived breath alcohol content and then multiplying that number by 2100! Therefore, if the magic box perceives the slightest degree of breath alcohol, whether it be real or as a result of acid reflux, it then multiplies that number by 2100 and the box states that you are drunk. Once the box states that you are drunk, the cops say you are drunk and you have a steep uphill battle to disprove the results of the magic box. Well wait a second, how can a box state I'm drunk and what about being innocent until proven guilty in a court of law? That's a post for another day, but the short answer is- too bad! The government has determined that if a machine states that you are drunk, then that's good enough for them, you are presumptively drunk and the only way off the charge is for you to prove your innocence.

Getting back to the subject at hand, mouth alcohol is correctly perceived to be enough of an issue that the police are required to watch you for 20 minutes prior to providing a breath sample. Their "observation" of you is actually recorded on the magic tape that comes out of the magic box. Additionally, the Maryland toxicology regulations require that there be a 20 minute time period and that no foreign matter be placed in your mouth during this time period, not even water. Any mouth jewelry or removable dental items should also be taken out of your mouth 20 minutes prior to providing a breath sample as these items can and will trap small amounts of alcohol in your mouth which can be detected by the machine.

The point being that mouth alcohol or items that can trap alcohol in your mouth, even in small amounts, can multiply and turn into big problems- unfair problems. Acid reflux can be a serious contributor to these types of problems because if you burp shortly before blowing in the machine, you can unknowingly provide the alcohol either in the esophagus or the mouth that will shortly be delivered in to the machine and factored into the machine's results. This is how you can drink 1 beer and end up in big trouble. This is why Maryland, and every other state's "presumption" of guilt based on a number, typically .08, generated by the magic box is really a bad idea.

Just a word for the wise....

Ask any cop and they will tell you, "quotas, no way! We don't have 'em and we don't use em". However, certain cops seem to have an unusually high arrest record for alleged DUI offenders.

There are recent cases out of Florida and now Illinois with cops making up evidence in order to arrest innocent people and charge them with DUI. In fact, an officer in Illinois was recently sued by a citizen that was arrested and charged with DUI as he left an establishment and prior to driving his car. He was given field sobriety tests at the station and they were inconclusive. He sued and the cop was suspended for a day and subsequently placed on a desk. Many of the cops cases were dismissed.

I have defended persons charged with DUI after having blown a .04 and in one instance a .02! The .02 was quickly dropped in court and then changed to a drugged driving charge (with no evidence whatsoever) and then subsequently dropped all together in a subsequent court appearance.

Ask a Cop, there are no quotas for DUI arrests, but the overwhelmingly aggressive attitudes towards citizen drivers says otherwise, especially when it comes to BAC numbers less than .07. The law may say the legal limit is .08 but I can surely attest to the fact that the police utilize a zero tolerance policy and arrest on any number and let the court and the lawyers sort the details out later after the arrest, embarrassment and all the attendant circumstances. After all, while your number maybe low- but after attempting field sobriety tests on the side of the road, under close "objective" police scrutiny, there will plenty of evidence with which to attempt to convict you.

Bear that in mind next time you have a drink with dinner and think you are OK to drive. Remember, there is no legal obligation to perform roadside agility exercises and if you do, you perform at your own peril, under dubious circumstances, before a biased audience.

We recently finished a hard fought three day DUI jury trial. The results were mixed, that is, we won certain charges, like the 21-902(a) 1 - NOT GUILTY but lost other charges. It was a hard case because the defendant had a blood alcohol level of .243 secondary to a result of a hospital blood draw following a car accident.

As an aside, hospital blood draw cases without forensic testing by Maryland's Crime Lab are an entirely different kettle of fish. The rules are different and the state has to jump through many more hoops to prove its alcohol case. If you have a hospital blood draw case, you must be sure that your attorney is well versed in these issues. I will highlight these issues in a subsequent post.

This particular case was interesting because while there was a high BAC reading on the hospital toxicology report, the hospital records were otherwise void of any other signs of intoxication. This was a case therefore that we were optimistic could be won on all charges. We brought in our own toxicology expert to help explain the evidence in the case since the State was going to produce its own expert, Dr. Barry Levine, the State Toxicologist.

The recurring problem that we see as defenders of your Constitutional rights is when the charge is DUI/DWI or otherwise alcohol related, people start turning their thinking caps off.

Most judges are fair and impartial, even on DUI matters, but there are too many nightmare stories of judges, as well a jurors (where one might expect this behavior) that when they hear the letters DUI/DWI, the defendant is considered guilty before the case even begins. DUI stands alone as the red haired step child charge where everybody wants to convict, convict, convict without listening fairly, impartially and intelligently to all the evidence.

It is ironic that so many prominent people stand on their soap boxes espousing the evils of drinking alcohol and driving, yet the act of drinking and driving IS legal. Moreover, the same people that are so tough on drinking and driving turn around and get charged! Just do a Google search on drinking and driving arrests, you will find sports figures, politicians, law enforcement officers by the droves, congressmen, judges, jurors, presidents, and the list goes on and on.

This blog is not intended to condone drinking to excess and operating a vehicle. This blog is however intended to ask judges and jurors (in particular) to approach these cases with a fair and impartial mind. To hear evidence as it is presented and where reasonable doubt exists, to understand that the defendant must be found innocent of the charges.

A DUI charge should not be considered a scarlet letter by jurors. People need to understand this charge is the same as any other charge, if the evidence is not present, then there cannot be a conviction. The other point is everybody can get this charge, and a high number of people in ANY walk of life do get this charge. The reason is, the .08 legal BAC is a misnomer. The real story is there is a zero tolerance policy! As I have previously written, if you are pulled over and LEO (law enforcement officer) smells alcohol on your breath, you are going to be arrested. If you then blow a number of roughly .04 or more, give or take, (depending on LEO's mood) you are going to be charged with this crime.

Anybody can be, and will be charged, from the President, to law enforcement officers, judges, prosecutors, congressmen, MADD representatives, to you and I. If there is going to be a zero tolerance and we are all susceptible to being charged and left to fend for ourselves in a court of law, it is imperative that all fact finders (judges and jurors) begin treating these cases fairly and impartially as you can never be totally sure which table you might be sitting at in the courtroom.

While writing this entry I am reminded of Governor Eliot Spitzer's case in New York. This is a Governor and former Prosecutor who has stood on his ethical soap box and espoused venom for unethical behavior for years. He has made many enemies with his unfaltering rhetoric for higher family values, then low and behold, we find out he is actually one of the bad people, a complete hypocrite, and guilty of the very same behavior he has been so critical of. Like I said, we should all be fair in our evaluations of others because you never know which table you might be sitting at.