Maryland DUI Lawyer Blog

As a passenger in a drunk driving arrest, can you be arrested for DUI in Maryland? In a word, not really. You would have to do something wrong or illegal in order to be arrested; just ask Reese Witherspoon, the actor that was recently arrested. So for example, the lovely Mrs. Witherspoon was recently arrested because she violated rule number one with the cops, she could not keep her big mouth shut!

You see, on the street, the cops are in control; so if you don't desire to spend the night in jail, you have to do what they tell you to do. Sometimes the cops don't know what the heck is going on, or where their authority ends and the law picks up so they may "order" you to do weird and stupid things, like put your cell phone away and stop recording their aggressive and unfriendly behavior. (They don't like to be the star of Channel 11 news), but the law is you are allowed to record video of the cops (audio is a different story- one may have to be careful there). Anyway, on the street the cops have the perceived authority so it is best to follow instructions or at least to get out of the way of what they are trying to do. If you stick your nose in their business, you will undoubtedly be arrested for getting in the way or disrupting the public or obstruction of justice or interfering with police business etc.

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Just finished a successful trial in Baltimore City using Ipad/wireless/projector/screen. Case went well- back up plan was very necessary and learned some VERY important lessons for everybody! Here they are:

1. If your Ipad has 3G capability through Verizon or ATT then yes, you can use its hotspot capability as the network tool to create a network with Apple TV and thus demonstrate on a projector or a TV. I used a projector in this particular case. You do not need to have a 3G signal (ie. Internet) in order for this to work apparently.

2. Now, what they don't tell you is that when your hotspot is turned on and idle (not being used, in sleep mode/suspended) you are drawing data from your plan. I did not know what. Then, to complicate matters, when you suspend your Ipad by pressing the top button to go to lunch or to go home for the day, unless you physically turn off the hotspot switch in settings, you are idle and STILL using data according to the Verizon lady.

Obviously, when you are doing your demonstration you are also using data. So the problem comes in when you leave the hotspot on for the evening and come back the next day (as I did) and then when you are in trial and just about ready to close BOOM, the hotspot can (and did) turn off and say you are out of data- so sorry. It takes significant back and forth to get more data up and running and to get the Ipad back up, so in my trial I was out of luck as far as wireless signal- 5 minutes before GO time.

Continue reading "Off DUI Topic: Apple Ipad Court Presentation using Apple TV" »

Following a DUI arrest in Maryland, the arresting police officer is supposed to do two things. If you have a Maryland driver's license, he is supposed to confiscate it and forward it to the MVA for destruction, meaning you will never get that particular license back irrespective if you are ultimately found not guilty of the DUI charge. He is also supposed to give you a temporary paper license on the spot (if you are otherwise entitled to drive). This temporary license is good for 45 days from the date it was issued or it is good until you attend an MVA license hearing if you timely requested one (within 10 days of your arrest). If you have an out of State driver's license, then the officer is not authorized to take that license from you because it does not belong to the State of Maryland, like your Maryland license does. If the officer mistakenly attempts to take your out of State license, you may want to educate or remind him that he is not supposed to take that license. However, you will need to attend an MVA hearing just the same because Maryland can suspend your privilege to drive in this State only.

The interesting part of this debacle happens when an officer takes your Maryland license and fails to give you a temporary driver's license known as a DR-15A. Technically, it is an Officer's Order of Suspension and a temporary driver's license all rolled up into one nifty document. The question becomes what is the status of an arrestee's driving privilege when the officer screws it up and fails to do what he is supposed to do.

The answer is, you are basically in limbo (useful information huh?) here's why. The officer has correctly taken your driver's license, however your privilege to drive is not taken away as a result of the license being liberated from your possession; that would be a violation of your due process right to a hearing before losing your privilege to drive. Thus, because the officer cannot take away your right to drive as a result of the arrest, you still maintain your right to drive.

Continue reading "I did not receive a temporary license after DUI arrest in Maryland" »

We had a very interesting DUI trial last week in Baltimore County, Maryland. It was the defendant's second DUI offense at a young age, he blew over twice the legal limit, rear ended at a small sports car and forced that car into a truck. I advised my young defendant before Court that this was a serious case and he needed to prepare for the likelihood of going to jail. However, unlike many Maryland DUI lawyers, we were not going to simply plead the case. I told the prosecutor we were ready for trial- call the case. The young cocky prosecutor was more then happy to call the case for trial. He had many witnesses to the accident and all the police officers all lined up and ready to go (well almost all, he had to get the breath tech there from another state only to have his testimony quashed by me, but oh well).

So the trial begins and the Government (through the young prosecutor) focuses the majority of his effort on the accident. We stipulated (admitted) to the fact that there was an accident and that the Defendant caused the accident, but the Government persisted on calling every witness he had to prove the same issue over and over again. This wastes the Court's time and does not please the judge. The judge is busy and wants the cases moved. They will listen to whatever gets put on the stand, but they would prefer not to have their time wasted. The Court could easily see we were trying not to waste time and the State just didn't know what he was doing.

Ultimately we moved through the accident and the 5 witnesses called to prove the same damn thing and all the poignant pictures they had. Then it was time to get back to the nuts and bolts of proving the DUI case. The State next had to get the high BAC number into evidence, had the State done this simple task the case would have been over and the Defendant would have gone to jail. This should not be too much of an issue except for the fact both the cops and the prosecutor both screwed up the breath test.

Continue reading "Ready to Fight your DUI case!" »

A question that comes up frequently in a Maryland DUI Arrest is whether or not a defendant should tell their employer about the fact that they have been arrested and charged for a DUI or DWI.

The fact that a person is accused or charged with a crime is their own business and not anybody else's business unless there exists special job related circumstances. Remember, any person can be accused of committing a crime. Being charged with a crime is very different from being convicted of that crime. When a judge or jury has spoken and the accused is convicted of a crime that may rightly impact some types of employment. However, the fact that somebody has been charged with a crime, tends to place that person under a questionable and possibly irreversible light, even if they are subsequently found to be not guilty in court. Thus, unless you fall into a specific category of jobs, telling one's boss or employer that they have been "charged" with an offense is generally not necessary.

Having said that, a few exceptions spring to mind. First, if you have a secret Government clearance and part of that clearance is a contractual obligation to tell your employer that you have been charged with a crime. In that circumstance it is incumbent upon an accused to at least advise their employer pursuant to their contract for clearance that they have been charged. Generally speaking employers under this circumstance will withhold punishment until the matter goes to court and has a final resolution. This is important because in many cases it is possible to be found either not guilty or to avoid the stigma of a "conviction".

Other employers may have an employee handbook or other policy which clearly states that you must advise your employer of a DUI conviction and/or a DUI charge, generally speaking military personnel are a good example of this also folks that drive as part of their job. So for example, a travelling sales person, like medical sales; this job tends to be rather specific on the issue of reporting traffic/criminal charges. The reason is because they have civil liability if you get into an accident while on the job or otherwise driving their car or driving at their behest. If it is proven in court that the employer knew or should have known about an employee's DUI record and the employer gave them a car anyway, the employer could suffer liability for subsequent injuries to a third party.

Thus, if you are a traveling sales person or if you are provided a company car, or if you have been advised by your employer at the time of hiring (or subsequently) that you must report DUIs, alcohol offenses or traffic matters, then you must do so or the employer could have a strong basis for termination or punishment, not just for the underlying DUI offense, but also for your failure to follow the employer's rules.

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We were contacted this very morning (Sunday- yes we see clients on Sundays) by a poor guy that was stopped while driving his truck because his fender was hanging too low. Deputy Doughnut smelled alcohol on his breath and demanded the fields (which you do not have to perform). Following the fields, which the accused thought went well, the accused was arrested. At the police station he blew a .06 and was charged with DWI, (driving while impaired). He has two questions:

1. How can I be arrested for DWI while blowing under the legal limit of .08?
2. Did my number get lower as a result of exhaling or breathing out my nose and mouth?

As we know from my numerous earlier posts on the subject, you can and will be arrested even for blowing a low blood alcohol number. The legal limit advertised on TV and road signs is .08, that is a governments dirty little secret. The cops don't give a hoot about the number because they know they can get you anyway! If you blow a .04-.07 or lower, they can and will arrest you; particularly if you exhibit weird behavior such as driving erratically, or poor field tests (which you should not be doing) or acting strange or showing other signs of impaired coordination. One's BAC (blood alcohol content) is a great tool for the police and courts to convict you of DUI, but in the absence of .08 BAC number, the cops simply look for other behavior that supports their witch hunt. Poor performance on the field tests is more then adequate to support that endeavor.

Robinson & Associates DUI Firm has been called upon to defend all numbers in DWI cases and we win the overwhelming majority of such cases. However, I remember years ago in Carroll County with a recently retired judge, we had a .06 case and the client was under 21 so the judge must have thought he would use the experience as a learning lesson for that young man and he convicted the client of the DWI charge despite the low BAC. In my 20 years experience that is the only case that comes to mind that we have not been able to beat on a low number. But nonetheless, the clients are still charged, lawyers have to be retained, the case needs to be tried, the client is put through the emotional ringer, etc.

Continue reading "Does blowing out your mouth or nose lower your alcohol content" »

Is a Maryland DUI a felony or misdemeanor?

Is a DUI in Maryland considered a felony? Of course not. A DUI conviction is not a felony, in fact it's barely a misdemeanor. What do I mean by that? Well, technically, Maryland DUI Law falls under Transportation Article 21-902 which is not a criminal article but rather the Transportation Article, therefore technically speaking it may not be "criminal" in nature; however, it does carry the possibility of jail time so the distinction may be mute. A first time DUI conviction in Maryland carries a maximum jail sentence of one year. Thankfully, in my 20+ years defending folks charged with this offense, nobody has gone to jail for a year on a first offense. In fact, we have never had a client go to jail for a year on any number of offense and we have had them all, up to 6th offense as I recall.

In order for the State of Maryland to pursue something higher than a year in jail on a DUI the State has to file subsequent enhanced penalties, in writing, and serve notice on the Defendant or his attorney of record. If this is timely completed by the State, they can ask for more time in jail, up to three years for a third or more offense. While the State does not hesitate to do this, we can often protect drunk driving defendants from this type of exposure by properly preparing the Defendant in advance of Court. Proper preparation and attorney experience, does make a lot of difference in the outcome in any case and in particular a multiple offender drunk driving charge.

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Can you be charged with DUI in Maryland for sitting in your vehicle?

In a word yes!

Can you be charged with murder when you were nowhere near the scene of the crime? Yes. But that does not mean that the murder charges will necessarily stick.

But how about a DUI in Maryland, will those charges stick if you were merely sitting in your car and happen to be under the influence of alcohol when the police roll up and disrupt your drunken bliss? Strangely the answer is yes. The question that the Court is called upon to evaluate to determine guilt or innocence is whether or not you were in “actual physical control” of your car/motorcycle/bicycle at the time the police invaded your privacy.

Actual physical control translates into a number of factors which have been discussed previously on this blog (Atkinson v. State). They include:

1) Where you were sitting/sleeping in the car (yes you can be charged with DUI even if sleeping in the car)
2) Was the engine running
3) Were the keys in the ignition
4) Were the headlights on
5) Was the car legally parked in a space or were you sleeping in the middle of the road
6) Was the car in gear

These factors lend some guidance to the judge in his attempt to determine whether you were in “actual physical control” of your car. If the judge finds that you were sleeping the driver’s seat of the car in the travel lane of the road, or even on the shoulder of the road and the engine was running, it is more than likely that you will be found to be in actual physical control of the car and thereby the chances of conviction of DUI are enhanced.

Conversely, if you are sleeping in the backseat of the car (a very good place to be) or in the passenger seat of the car and the keys are on the console or perhaps in your pocket and the car is legally parked in a designated space, then this would significantly improve the chance of not being physically in control of the car.

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Warrantless DUI Blood Draws are the Focus of a U.S. Supreme Court Case

Police officers forcing DUI suspects to submit to blood draw tests without a search warrant has been a highly contested issue in this Country. On January 9, 2012, that subject became the focal point of a case argued before the U.S. Supreme Court. In Missouri v. McNeely, a Missouri state trooper stopped a man who was speeding and swerving his car. According to the state trooper, the driver was unsteady on his feet, had slurred speech, there was alcohol on the driver's breath and his eyes were bloodshot. The driver failed several field sobriety tests and refused to submit to a breath test.

The state trooper proceeded to take the driver to the hospital for a blood test without obtaining a search warrant. The driver was handcuffed while a hospital technician drew blood from his body. The test measured the driver's blood alcohol content as .154; the legal limit in Missouri is .08.

When the case was presented before the Missouri Supreme Court, the blood test results were thrown out. The Missouri Supreme Court ruled that forcing the driver to undergo a DUI blood test without a warrant was a constitutional violation of the prohibition against unreasonable search and seizure. The court also stated that a warrantless DUI blood test is only legal if getting a warrant could result in evidence being destroyed or threatens someone's life. The state of Missouri appealed the court decision and it was sent to the U.S. Supreme Court.

During the oral arguments in the U.S. Supreme Court, the Justices were considering what would be a reasonable amount of time for a law enforcement officer to get a search warrant in this type of situation. The Supreme Court Justices also wondered if there are exceptional circumstances in which a police officer should be allowed to get a blood test if a search warrant cannot be obtained within a certain period of time. The Supreme Court's decision regarding the constitutionality of warrantless DUI blood tests will be made within the next few months.

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Here are a few of the most common DUI breathalizer questions we get:

What are the DUI Breathalyzer procedures in Maryland?
Can multiple blows effect my breathalyzer result?
Does burping during breathalyzer increase my BAC number?
Can I be arrested for blowing a low number?

Maryland's DUI breathalyzer procedures are documented in Maryland Transportation Article 16-205.1 and in COMAR 10.35.02.0(g). Together they say quite a bit about the requirements for a proper blow and therefore, if interested, you should consult these sections beginning with COMAR because it's easier to decipher and more to the point. Here are some of the requirements in short:

1. The DR-15 rights must be read to you in their entirety or you must be given the form to read yourself, completely, prior to being asked to blow in their magic happy box. If this does not happen, then your breath results should be excluded both in Court and at the Administrative hearing under 16-205.1

2. You must be watched for 20 minutes by LEO (law enforcement officer). You must be watched by either the arresting LEO, the breath operator or some other cop who has time on his hands (in between doughnuts) to make sure you do not put any foreign objects in your mouth or system. Foreign objects like food, alcohol, water, gum, chewing tobacco, etc can potentially have an impact on your BAC score. This is why many times they will not let you go to the bathroom before you blow; although the nice ones sometimes will.

3. They will then sit you down in front of the machine and basically tell you to take deep breath and blow in the machine until they tell you to stop (the machine will indicate when it has had enough of your breath). TIP: The cops tell you to take a great big breath because the deeper and longer you blow, the higher you go! You see when you breath deeply your getting the deep alivolar breath in your lungs number one, where the alcohol exchange takes place from your blood. Thus the more expelled air you get from there the higher your BAC number will be, versus simply inhaling air in your nose or mouth and quickly exhaling it. TIP 2: The deeper you inhale and hold your breath prior to exhaling, the more time the alcohol has to dissipate into the air that you will exhale. Deputy Dawg knows this and will encourage you to take a deep breath, hold and exhale thus maximizing your BAC score. Conversely, shorter breaths which remain in the mouth, breathing passage or lungs for a short period of time lack the same exchange time and thus result in lower or more fair and reflective BAC number.

4. You will be asked to provide two breath samples to the magic box. If the two breath samples are not within .02 of each other (absolute difference), then you will be asked for a third breath sample. Of the three samples, two must correlate within .02, if they do not, the samples will be rejected completely.

5. Before and after you blow, the machine will do a self test and in the self test, the blank test must report .00 BAC (ie. blank) and then must test itself with a known .08 solution (which the machine has attached to it) and the test must report within 10% of .08, ie. the machines margin for error. TIP: Whoops, bet you didn't now that! The magic breath machine has a 10% margin of error right from the manufacturer's own documentation and also in COMAR. Thus, if you happen to blow, say .08 which is enough to find you guilty of the per se charge, it could actually be a .072, under the per se charge. But, who's counting the details? After all, it's only your job, life and freedom on the line right?

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