November 16, 2008

DUI Roadblocks in Maryland

The 4th Amendment to the United State's Constitution says "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated..." This amendment, part of the Bill of Rights, made applicable to the individual states through the 14th amendment Due Process clause as established by the Supreme Court in Mapp v. Ohio, 367 U.S. 643 (1961), says that citizens shall not be stopped in their cars, or otherwise without probable cause or reasonable suspicion to believe that a crime has been committed. This law was upheld by the Supreme Court in Delaware v. Prouse where the Supreme Court held the 4th Amendment right to privacy outweighed the states desire to stop cars to check driver's licenses and registration cards.

However, the Supreme Court modified its position in the decision of Michigan v. Sitz where it held that the prohibition of stopping an automobile in the absence of probable cause was outweighed by the desire to eradicate drunk driving on our streets. The Justices voted 6-3 in favor of allowing the "DUI Exception" to the Delaware v. Prouse opinion.

Maryland has also visited this particular issue in the case of Little v. State 479 A.2d 903 (1983). The Court ruled that roadblocks were legal in Maryland because of the State's important need to stop drunk driver's on Maryland streets; however, the Court did recognize certain procedural requirements that must be satisfied in order to make a roadblock lawful. If a roadblock fails to meet procedural requirements, then the resulting arrest is illegal and the case will be won or dismissed in Court, such is what happened to my client this week in Baltimore County District Court. Case dismissed, details follow....

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November 8, 2008

It's getting weird out there....

A DUI defendant came to see me yesterday from across the bay bridge; she blew a .12 in the breathalizer and a .15 on the PBT (preliminary breath test offered on the street to determine if a DUI arrest is warranted). She was wondering how her BAC (breath alcohol content) could drop in the matter of minutes that it took to get from the street to the barracks. She was also concerned about the results of her field sobriety tests. I told her not to worry because it was very unlikely the case would ever get that far; you see, she was the victim of a particularly nefarious type of transaction- the DUI/DWI pretextual stop. A Queen Anne's county police officer stopped this citizen because her license plate had that black plastic border around it that you get from the dealer when you buy a new car. That black plastic border was the entire basis for the stop!

A pretextual DUI arrest is one that is made, not necessarily for the purpose of a DUI investigation or arrest but rather in order to stop the car to see what the police may be able to come up with. Some times pretextual stops are executed with a "legal basis" but many times, they are not even legal stops and therefore are in complete violation of the people's 4th amendment right to be free of illegal searches and seizures. The strange thing is that the police do not seem to understand that if they stop a car with no cognizable legal basis, such as in this case, all evidence that is subsequently acquired is considered "fruit of the poisonous tree" and subsequently suppressed at trial. Once that happens the entire case goes away.

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November 7, 2008

Can we be a little less helpful?

I was representing a young man in Howard County, Maryland this past week on a DUI charge. The defendant was trying to be a good samaritan when he went out to pick up a friend who needed a ride; unfortunately, he had a few drinks before venturing out. He was stopped by the police on a completely unrelated matter and was arrested after they smelled alcohol on his breath and engaged the normal field sobriety tests. Following the arrest the good samaritan defendant sang like a bird and told the police officer everything that he had to drink and that he knew he should not have been drinking. The police indicated in the report that the defendant was "very polite and cooperative"; browny points for the defendant right? WRONG!

As I have indicated in the past, while it is always important to be respectful and courteous to the men and woman in blue, that does not mean that a defendant should hang themselves out or convict themselves with their admissions to the police. Please remember that anything you say to the police in a traffic stop CAN AND WILL be used against you in a court of law. Therefore, zip it up and say nothing (and while were on the topic- do nothing as well, no field tests). The Miranda warnings were developed to protect citizens in just this type of situation; however Maryland's appellate courts have determined that Miranda warnings do not apply until an arrest has been made. Therefore, no Miranda warnings but you still face jeopardy for talking to the police and ratting yourself out. That is to say, you are not helping yourself when you tell the police you had 7 drinks 5 minutes ago and you are very sorry and can you leave now.

But hey, don't take my word for it, take the police officer's word for it. When I was in court defending this case, I spoke with the officer before hand. The officer told me, "your client was a little too cooperative in this case" in other words, too much talking. Loose lips sink ships as it were and this is a police officer talking.

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