December 15, 2014

Interesting Win today: Gentleman in Wheelchair

I had an interesting DUI victory today in Baltimore County District Court. Unfortunately my client was in a wheelchair and paralyzed from the waist down due to a pre-existing condition from years ago. He was stopped driving home in Baltimore County for speeding wherein he told the officer that he had five beers and a shot of fireball whiskey, he was charged with a Maryland DUI. One challenge that we see a lot when dealing with the police is that defendants are a little too talkative regarding what they have consumed prior to being arrested. Remember, in any other form of criminal arrest the police are constrained to read Miranda warnings which is advice to the defendant to keep their mouth shut until contacting an attorney. Unfortunately, these same protections do not typically apply in the traffic/DUI scenario. Consequently, it is wise to be aware of your legal rights to keep your mouth closed and to practice that philosophy.

The police in this case could not perform the normal field sobriety tests for obvious reasons; however the police officer was able to perform the single test of the horizontal gaze nystagmus or HGN. Remembering that the HGN test is nothing more than an indicator that one has consumed alcohol, this test was relatively meaningless in this case because the defendant admitted that he consumed alcohol throughout the evening. This defendant was arrested by the police as a result of the HGN test and his red glassy eyes in addition to minimal speeding. Once back at the police station he blew a .14 BAC into the breath machine and that was the end of the game.

Fast-forward to Baltimore County District Court today where I tried the case and was able to exclude the BAC number from coming into evidence. Once the number was excluded due to the police officer's technical failure in the case, something the prosecutor was not aware of, the case took on all whole new light. Many times there are technical failures on the part of law enforcement or the prosecutor's office and that is how these cases are won.

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March 5, 2014

Baltimore County Cop Arrested for DUI

Woops, seems another of the "good guys" has proven that he is human. It is alleged in the Baltimore Sun that Baltimore County Cop Charles Bagley, a corporal, was arrested for DUI in Harford County where he resides. Evidently, when he was driving home he was displaying signs of intoxication when he was stopped and subsequently arrested for DUI.

This story is interesting on a number of levels among them he is a corporal on the Baltimore County police force assigned to the White marsh precinct. As a police officer and a corporal, he clearly knows better then to drink and drive, he has undoubtedly made many arrests for this same illegal behavior in the past and yet here he is demonstrating poor choices to the motoring public.

The second and perhaps more interesting part of the story is that he was arrested in Bel Air, Harford County. Everybody knows or should know that of all the places in Maryland that one can be arrested for crime, including DUI, one does NOT want to be arrested in Harford County. That county is the very worst in the entire state of Maryland.

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December 7, 2013

Ahh-Delightful San Diego and Driving while impaired

A San Diego police officer was recently pulled over on suspicion of drunk driving. She was nabbed by the California Highway Patrol known aka CHIPS (recall the old tv program with Eric Estrada that is known by the same name- and the same name as the defendant). Evidently, she blew under .08 and was given a ticket for driving under the influence and was not taken to jail. Probably best for her that she was not jailed as her fellow inmates would probably be less then welcoming to her.

The important thing about this arrest is what her BAC (blood alcohol content) actually was at the time of the stop. Many DUI/DWI (driving while impaired) clients come into our office wondering how and why they got arrested for blowing a .06, .05 or .04. The Maryland DUI law as it is written says .08 is the legal limit and the street signs on the beltways say “over .08, under arrest.” Thus, why the arrest when under .08? The answer is the pesky charge of Driving While Impaired 21-902 (b) which is different then Driving Under the influence 21-902(a) in Maryland.

Driving While Impaired is basically a lesser included alcohol ticket for those that do not appear to be drunk yet the officer smells alcohol and has a desire to meet his monthly quota for alcohol related arrests. In other words, if the cop smells alcohol on your breath that is the first problem, despite the fact that you are allowed to consume alcohol and operate a motor vehicle in Maryland and all other states. Then whatever the cop pulls your car over for is automatically indicator 2; thus if you were speeding, that’s an indicator of impairment, if you were driving too slow, then that’s the indicator, if you made a turn without your blinker on, then that’s the indicator of your impairment. If you were driving without your seat belt on, well there you go, that’s a definite indicator that you were impaired along with the odor of alcohol on your breath. [Side note: the legislature changed the law in Maryland and failure to have your seatbelt on as well as texting are now primary offenses which the cops can pull you over directly for that particular offense.]

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November 28, 2013

Mayors DUIs and Drugs - out of control

I thought I had heard it all when the mayor in Toronto- Rob Ford admitted to partying and smoking crack! Funny, but not really. You can almost look at the man and see crack written all over him so since you elected him shame on you. Now you can't get rid of him. However, if you use Washington DC as an example, Mayor Barry, well heck it's almost a right of passage. Not to mention that he was re-elected after this miraculous concession of smoking crack!

Having said that, the purpose of this article is to shed some light on the attractive Grafton, Cleveland Mayor Megan Flanigan. She allegedly was driving drunk when she struck a fire hydrant very close to her house. It is unclear to me what happened next but the article seems to indicate that she was on scene when the cops arrived, possibly still in the vehicle. I don't know if she left or could have left the scene and returned when the police arrived. The cops smelled alcohol on her breath and requested she perform the normal field sobriety tests (mistake #1) which apparently did not go well and she was arrested and taken to the station. The article did not indicate what if any number she blew at the station (mistake #2) if she did blow.

The article did continue on however that after she left the police cruiser evidently they found some illegal pill of some kind in the back seat which they are attempting to charge the mayor with. This of course will not stick because the police failed to do their job correctly, but that does not stop them from attempting to stick the pill on the drunken mayor.

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November 24, 2013

Primary Offense v. Secondary Offenses in Maryland

There are primary traffic offenses in Maryland and there are secondary offenses. A primary traffic offense in Maryland is one which gives the police the immediate ability to pull you over and issue a citation. Conversely, a secondary offense is one in which the police can issue a citation but they are not permitted to pull your car over in order to give you that particular citation. Thus, last year a seat belt violation was secondary and thus you could receive a ticket for that but the cops would have to first pull you over for a primary offense such as speeding.

The law has changed this year. Seat belt violations are now primary offenses; thus the police can now pull you over and effectuate a stop for a seat belt violation only. Additionally, texting on your phone has also become a primary offense whereas that used to be secondary. The other law that recently went into effect is designed to protect the cops on the road during a stop. As you come upon a police officer fulfilling his monthly quota by writing a motorist a speeding ticket or a ticket for a burnt out license plate light or some other equally notorious offense you are now required to brake, slow down and if possible to change lanes away from the officer. If you fail to brake, slow down and/or attempt to change lanes where possible, that officer can now quickly finish writing his speeding ticket and pile into his shiny cruiser and chase you down and issue you a ticket for your failure to follow this new traffic law. Additionally, if you or your passengers are not wearing seat belts you can be ticketed for that as well. Then while he is writing your tickets, he can keep a keen eye on the next victim who fails to brake/slow down and or change lanes and repeat the cycle.

According to a recent news report following a potentially serious accident in Virginia where a DUI slammed into the back of cruiser parked on the shoulder, roughly 12 officers die each year from motorist seeing police cruisers at night and then slamming into the back of them because it can be hard to tell initially that the cruisers are parked and not moving.

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November 13, 2013

When a Judge gets arrested for DUI

No matter what side of the law you find yourself, nobody is above the law. Just ask Florida judge Cynthia Imperato, age 56. Evidently, this former police officer, turned lawyer, turned judge who has a reputation for being tough on criminals found herself in very hot water as she was allegedly weaving all over the highway. The link contains a 911 call to police for a person driving a white mercedes weaving all over the road, the police were able to catch up to this judge and ultimately arrest her. While initially refusing to exit her car, she attempted to call her lawyer, but was unable to dial the numbers on her phone- don't you hate when that happens?

Ultimately, the cops got her out of the car whereupon her judge/legal training kicked in and despite not being able to dial her own mobile phone, she did remember not to attempt the field sobriety tests and refused to blow in the pesky breath machine at the police station. She was arrested after 1:00am in the morning and was apparently detained until after 7:00am at the police station. I hope she didn't have to go directly to the bench to pass judgment on other DUI cases after spending the night in jail. Hopefully they allowed her to go home first and shower up and then play the holier then thou card at work by "throwing the book" at other DUI defendants, something she apparently is known very well for doing.

The thing that bothers me is that we are all human and therefore make mistakes. Now I do not condone drinking and driving, it is unsafe, illegal and just a bad idea. But what is equally worse is some judges and prosecutors who don't seem to understand that mistakes get made but they are still just "one off" mistakes and defendant's lives should not be thrown into total upheaval.

This particular judge has a record for crushing people that are found guilty of similar charges, I wonder if she believes that she should be "crushed" because she made an equally unfortunate and dangerous mistake? Would she desire to come before herself in court, or would she rather be in front of a different judge who may be more even handed and understanding then she would be to herself?

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June 26, 2013

Lowering the DUI/BAC limit to .05

The NTSB the transportation safety agency of the Federal Government is proposing to lower the legal limit for DUI to .05, as opposed to the .08 where it presently stands in all states including Maryland. Have no fear, it is highly unlikely this change will pass congress at this time substantially in light of the fact that Congress can't agree on the color of the sky on beautiful sunny day. However, I imagine that the matter will continue to be brought up until one day it does pass Congress. You see, many other countries already use the .05 standard for impairment as the powers that be have conducted studies and feel that drivers begin to be impaired at this low level.

This proposed change is interesting on a number of levels. To begin with BAC level used to .15 for impairment and then the Government lowered it to .10 feeling that was the proper level for impairment and then changed it to .08. Interestingly, the Government appears to continue to do testing and the number for impairment continues to drop. Perhaps the alcohol level in drinks is getting stronger or perhaps alcohol in general is reacting differently to people then it did in the "old days". Perhaps these are just arbitrary figures in the first place on the way to a .00 which ironically this DUI attorney feels should be the limit for driving.

You see, all these BAC numbers are arbitrary and what law enforcement does not tell you is that even with a .08 limit, if you blow a .05 at this time, you are still under arrest! They simply call in impaired as opposed to under the influence and most drivers are unaware of that. Most drivers wonder how they are being arrested on a .05 or .06 but it happens all the time.

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May 5, 2013

Can a passenger be arrested for DUI in Maryland

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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April 8, 2013

I did not receive a temporary license after DUI arrest in Maryland

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.

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March 13, 2013

Maryland DUI a felony or misdemeanor?

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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March 1, 2013

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

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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February 10, 2013

Maryland DUI Blood Draw

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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January 31, 2013

Maryland DUI and the Roadblock Arrest

The Super bowl of football is this weekend in New Orleans. The Baltimore Ravens v. San Francisco 49ers, it should be a good game with the Ravens proving victorious. In light of this rare occasion undoubtedly folks will drink to excess and endeavor to drive drunk. The police of course will be out in force enforcing Maryland’s DUI law. Under these "perfect storm" circumstances it is quite possible that you might stumble upon, and fall prey to, a DUI roadblock where you will be flagged and your car will be stopped for no legal reason whatsoever and you will be questioned about your comings and goings. The police will be peering in the window with their trusty energizer bunny flashlight looking for incriminating evidence like a past out body in the back of the car, empty beer and vodka bottles on the floor, or the odor of alcohol emanating from the driver's or occupant’s breath or person.

DUI Roadblock cases are a very strange breed of case because the cops/government has no legal basis to stop your case. Therefore, you do have legal options that may surprise you. First, the police must publicize the existence of the roadblock ahead of time so the motoring public is less frightened by the cop's World War II like scare antics. This means something must be posted in the paper or on the radio or TV. Second, there must be a legal way for the motoring public to stop and turn around if they do not desire to go through the block. There must be signs on the road as you approach the roadblock to alert you as to what is happening, thereby giving you a heads up to turn around. Third, despite the cops barking orders at you to the contrary, you may not even need to roll the window down and speak with them (depending on the circumstances). The truth is you don't have to speak with them at all and they must let you pass, unless they observe something that triggers or heightens their interest, ie. Gives them reasonable suspicion that you are breaking the law.

The problem comes in when you do actually stop your car, roll down the window and engage them in conversation. As they smell alcohol in the car and see red glassy eyes and hear mush mouth speech they now have reasonable suspicion to pop you out of the car for field tests, which you do not and should not perform (although you do have to get out of the car at this point- you do not have to do the tests).

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January 21, 2013

Foregiveness and related matters

Forgiveness

Lance Armstrong admitted to doping this week on the Opra show. This admission comes years and years after steadfast denials of any doping during his superhuman cycling victories. In fact, he would excoriate his team members, acquaintances or anybody that indicated publicly that he had in fact doped. Unfortunately for the mighty Lance Armstrong the Federal Government got involved and had he lied under oath, he would have found himself in jail. Apparently, Lance got some good legal advice with the millions upon millions of dollars that he swindled the United States Post office and other sponsors out of and he decided on a new tactic, the truth. At this juncture there will be countless lawsuits and probably a bankruptcy thereafter.

Should Lance be granted forgiveness like many before him who have “come clean” after falling prey to human infirmity? I don’t think so. Lance had absolutely no desire or willingness to come clean at any point, it was only after the Federal Government got involved and he faced the unenviable specter of having to testify under penalty of perjury that he realized he was going to have to admit or go to jail. It was then that he elected the lesser of two evils and decided to admit his wrong doing nearly a decade after his indiscretions and vehement denials.

Conversely, in the local paper this week Maryland has its own star of sorts, DUI defendant and delegate Don Dwyer back in the public eye. Mr. Dwyer was all to eager to come forward while still in the hospital after crashing his boat into another boat on the Magothy River in Maryland. In doing so, he injured four children who were enjoying their afternoon boating with their grandfather. Mr. Dwyer jumped on this early opportunity to tell the public that he had a severely elevated BAC and that he was sorry for this egregious transgression.

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December 26, 2012

What the heck is the legal limit for DUI?

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Your driving down the street and see this sign on the side of the road reminding you not to drink to excess and drive or you will be arrested for DUI in Maryland. The signs are everywhere, on the beltway, in front of the police stations (like this one which I snagged) even on the radio and television. Being the responsible member of the community you are, you decide you will not drink to excess and drive, you will stay away from that all telling .08. You will limit your big night out to two drinks and you will be well under the legal limit and all will be well.

On your drive home however, you are stopped by deputy DUI enforcer because your license plate light is burnt out and the next thing you know, you are being arrested for DUI, all you remember hearing is your field tests were not good because it was 25 degrees outside and their were tornado like winds blowing. You think to yourself, well I only had two drinks so what is the problem? Heck, I only blew a .05 well within the legal limit so why am I at the police station with handcuffs on? Well, unfortunately, the Maryland State legislature and your local police department forgot to tell you one itty bitty little important fact and here it is right from the Maryland State Trooper's mouth:

In other words, what this Trooper is trying to tell you is the cops can pull you over for anything at all, like a burnt out tag light or a momentary crossing of the white shoulder line and then arrest you for DUI/DWI. At the police station if you blow as low as a .03 or .04 they can and will charge you with DUI/DWI and you will be forced to secure a qualified DUI lawyer to defend yourself in Court. All that would be alright if the police and the law markers would take the time to explain to the motoring public what the actual state of the law is so a Maryland driver can at least make an informed decision before getting behind the wheel.

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December 17, 2012

You got to be kidding me!

Remember, ANY "vehicle" is good enough to get you popped for a DUI in Maryland; yes that includes lawn mowers, horses or anything else that is capable of moving people. Here are a few worthwhile concepts to bear in mind before you go out drinking and utilize your horse or lawn mower as transportation.

Definition of Drive (Transportation 11-114)
Drive means to driver, operate, move or be in actual physical control of a vehicle, including the exercise of control over the steering of a vehicle being towed by a motor vehicle. This means you do not have to be "driving" to be arrested for DUI. Simply being in or about your car could be enough to get you trouble. If you're sleeping one off in your car don't sit in the driver's seat, because if you do, the chance of being construed to be "in control" is increased."

Driving while under the influence or impaired. (Trans. 21-902)
In brief, a person may not drive or attempt to drive "any vehicle" while under the influence. Under the influence means under .08 and over .08. It means anything two drinks or more and you can be arrested for this offense. .08 is NOT the magjc number so do not rely on that.

Definition of Vehicle. Trans. 11-176
Here's the fun part:
Vehicle means any device in, on or by which any individual or property is or might be transported or towed on a highway. This does not include an electric wheelchair. This does however include lawn mowers, horses, mules, spouses (kidding), and the like.

I actually got a call from a guy in southern Maryland that got popped for riding his lawn mower. I so wanted to defend him in Court but alas it was too far away and too high of a cost.

Anyway, this holiday season, remember, they are out there and can get you for driving at any alcohol limit they want, no matter how minor, and any vehicle, gizmo or animal they want.

August 25, 2012

Conservative Republican legislator Dwyer Popped MD

Another hypocrite, echem....conservative lawmaker alleged to have been operating his boat DUI/DWI in Maryland with a apparent BAC of .20 or more, according to his television interview on WBAL news when he allegedly chose to run over/collide with another boat with children resulting in kids and adults going to the hospital for serious injuries. According to witnesses, on the Magothy River, Dwyer was driving like a maniac and other boats had to avoid him.

The hypocritical part about this is that he is supposed to be a conservative Maryland Delegate in the house since 2003. He is known for trying to impeach Maryland's Attorney General as a result of Maryland accepting same sex marriage certificates; naturally those attempts failed.

It is just interesting that people can stand so high on their soap box attempting to enforce their warped sense of what is right and wrong in society, yet at the very same time, they miss the very basics of what is demanded in society, which is not to blatantly break the law and/or hurt your fellow citizen.

This law maker was very quick to be wheeled outside the hospital, neck brace and all, quick to indicate that he was in no condition to give a press conference but was in satisfactory condition to ask for forgiveness and seek repentance for the atrocity that it is alleged he caused.

Having said that, from a DUI perspective, not only did he violate the rules of society by allegedly drinking and driving to a very dangerous level, he also violated the legal rules of keeping your mouth shut until you know what the hell is going one. I suppose he was making a hail mary effort to try to save his seat in the House of Delegates, but it is truly hard to imagine a scenario where he does not get kicked out of the house. You see, for the record, it is generally not good for one's resume to have a DUI (on the water OUI) that results in injured kids going to the hospital. That is a tough one to overcome.

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July 10, 2012

Reminder UNDER the legal Limit: Still UNDER arrest!

Just a reminder that .08 BAC does not mean that is the legal limit for a DUI arrest. As I have previously written, the police will not hesitate to arrest on any number if they are having a slow night, or their non-existent quotas have not been met for the month.

I am presently in Ocean City Maryland because yesterday I was called upon to defend a pleasant young man attending college that blew a .05 and was driving on a flat tire. He was nervous when he did the field sobriety tests so they were not perfect, but then again, they never are according to the men in blue. Anyway, this cop made a point in his arrest report of writing six different times, "the defendant had the STRONG smell of alcohol." This appeared 6 times in two pages. It was almost funny because I haven't seen an instance of the cop trying to guild the lilly this bad in many years.

After the cop arrests my client and drags him to the station, and notes the "strong smell of alcohol" in his police cruiser (probably coming from the cop and not my client) the cop proceeds to hook him up to the breath machine and gets that all important alcohol number. .....whoops, it was only .05!! Now what?

What is a cop to do after he has made such a stunning arrest and documents the overwhelming odor of alcohol, despite the defendant telling Mr. Cop the truth, that he only had two beers? Well, that's easy, tell the Defendant to sit still while they call the DRE or drug cop to gather more overwhelming evidence.

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March 17, 2012

Whoops there goes another Cop- arrested for DUI

This time it is a CHP or California Highway Patrol Officer, arrested on felony DUI charges following a car accident that she caused, resisting arrest, assaulting fellow officers, and using profanity towards her brothers attempting to effectuate the arrest on her lame ass.

I really don't get this, not at all. I tell clients and or people at large, not to get into it with the police, it is a losing proposition on the street. Besides, they are just doing their job, most of them. On the street, in the cloak of darkness, the police win, you lose! If there are any issues to be determined, you do that in court, NOT on the street. This situation, however, is insane because it is a police officer that is driving at a BAC over twice the legal limit, number one, causing a big accident, number two, and then assaulting officers, number three. That is the best way to get your ass kicked if you're not a cop and maybe even if you are a cop.

Being that this lady is a decorated officer of the law, she knows better than to do any of the foregoing. It is truly hard to explain, other then being a complete idiot. Anyway, my guess is that this officer is probably an alcoholic because she was functioning, albeit poorly, with a BAC of .20 and once you get that first drink or two down, the drinks just keep coming, then things spiral out of control quickly to the point of acting like a complete lunatic.

My position, as an experienced DUI attorney, is that the drinking and driving limit should be a shocking .00. Why you ask? Why so restrictive and untenable? Easy, the .08 legal limit is a fallacy. If you blow a .08 you get arrested right? But the dirty truth that they don't tell you is that if you blow a .07, .06., .05 you STILL get arrested and charged! Officer's complete discretion. And seeing how the officers get overtime for coming to court to prosecute the case and seeing as how the officers get browny points for maintaining quotas/arrests, the driver is going to be arrested in every case. However, have no fear, despite it being the right thing to do, the restaurant lobby would never permit it to happen as they would lean heavily on our lawmakers and our lawmakers would never succumb to such lunacy as doing something that makes sense, clarifies the law and helps the community at large.

If you have more then ONE drink, you are susceptible to being arrested if stopped and chances are more likely than not that you will be arrested, even way below the golden .08. Secondly, when people are laboring under the mistaken impression they can have maybe 3 drinks before getting to .08, they tend to loosen up and lose their discipline and go beyond that; which is what happened in this case. Assumably as a decorated officer, this person knew not to drink the volume that she consumed, but after the first 2-3 drinks, she lost control and kept right on going, resulting in the arrest and the stupid behavior.

Therefore, if the actual BAC limit is more like half of .08, closer to .04 which is one to two drinks, wouldn't it be much easier to say no tolerance, zero limit? If you intend on driving, DO NOT drink at all. It then becomes clear for all parties without confusion and we get to avoid idiots like this who clearly know better, but cannot control themselves. But then again, if we took this tough, clear stance, where would the government make the loss of income that it makes from these cases? Where would the police make up their loss of income from the overtime? What would the court personnel be left to do in the absence of all the DUI cases? What would all the defense counsel do with all their extra time? What would all the court's DUI probation staff do in the absence of these cases?

I suppose the safety of the motoring public throughout this country just doesn't rank high enough when factored against these overpowering elements and the likes of the pesky restaurant lobby.

March 10, 2012

Guest Blog Post regarding DUI rights and arrest


The Maryland DUI laws can be complex, and for the average average person, utterly confusing. The truth is that most of us enjoy having a drink every now and then. That does not make you or me an irresponsible citizen. Too bad for us that the police officers on the roads do not care about all of that, and would stop at nothing to arrest you.



The other thing about getting booked for DUI is the fact that more often than not, you are not aware of your rights, as the officers do not even bother to read them out to you. The first thing after being pulled over and asked to step out of the car is to be asked to take the breathalyzer test. That's how it goes, doesn't it? No, but most people comply with this request thinking that it is the norm.



You have the right not to take any test before you speak to a lawyer. The officer, pressed to make an arrest, will conveniently not tell you this, and will shove the test in your face. Also, it is important to keep in mind that whatever you say will be admissible in a court of law, and it is vital not to answer any questions before speaking to a legal representative.



The Maryland DUI carries heavy fines, up to six months of jail time, and a loss of your driving license. Education is vital, and being assertive and standing up for your rights is a non-negotiable aspect, and under no circumstances should you let a police officer bully you just so that he can write you up.



The legal limit is .08, which translates to 2-3 drinks. Now, the thing about the Field Sobriety Tests is that they are not designed to be in your favor. A request that most people fail to make is to ask to take these tests again after being arrested. You can ask for another Field Sobriety Test as provided by the law. These are things that most of us ignore are not even aware of, since the information is not in the public domain. This only comes to light when you get arrested, and after being charged and taken to court for your hearing, and having to be defended by a lawyer, and winning or losing the case, depending on the abilities of your attorney.



One other thing that I would like to point out is that you need to be familiar with the Miranda Rights. The police are not required to read you these rights upon arrest, but this fact can be used in your favor. When you get pulled over, the natural reaction for most people is to tense up and panic. Police officers know this and use this opportunity to ask you whether you have been drinking. If you say no, and you have the slightest hint of alcohol in your breath, then you're in trouble. At the same time, if you say yes, it's as good as an admission of guilt. The right thing to do in this case would be to simply say that you have been advised not to answer that question at that time. This is the whole premise of the Miranda Rights, which afford you the right not to say anything lest it be used against you in a court of law.


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January 27, 2012

.05 under the limit, under arrest

In my last blog post I indicated that we had another .05 BAC DUI case pending in the District Court. While not totally unusual, it is unfortunate. People are often times surprised to learn that they can be and probably will be, arrested and charged with DUI if they blow a .05.

You see, the Government has a slogan, "over the limit under arrest"; it is well known that the legal limit in this Country is .08. The problem, as I have previously written, is that this information is misleading. In fact, you can be charged with DUI for ANY number that the investigating officer (I/O) feels like arresting. Ie., he can arrest any person that he feels may help his arrest numbers at the end of the month, even if the driver's BAC is .04 or .05 (half the legal limit). Mind you that the Maryland State Law is written that a .05 BAC or lower yields a presumption that the person is NOT intoxicated. But have no fear, if you catch an officer on a bad day or possibly without enough arrests for the month, you're going in.

So getting back to the case.....

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January 19, 2012

Doesn't pay to be drunk and stupid

Holy smoke!
It's tough enough to deal with the police on their rampage to stop all DUI drivers and drivers in general for their illegal activity of driving on Maryland roads, however in some cases, people just bring problems on themselves.

In this brilliant story, the PASSENGER was taken to the station when his driver was arrested because he was too drunk to drive. Apparently the passenger became indignant about the fact that his drunk butt was in the station, even after he was set free, he went about the business of urinating on a sign outside the station and is alleged to have "kicked" the sign he was peeing on.

Well, let it be known that the police do not take kindly to having signs kicked or peed upon because as a result of this unruly behavior, the rebel rouser was apparently arrested. The problem is, during the arrest procedure or at least when the cops went outside their station to advise the young man that it was not ok to pee on their signs, the man apparently took a swing at the cop!

Whoops, always a bad idea to take a swing at cop, drunk or sober! You see, not only are you going to get your ass kicked when you do that, the police will arrest you and throw the book at you. Not a totally unfair result I might ad. Despite the police sometimes being unfairly aggressive in their traffic enforcement activity, (like the .05 case I will be defending next week-blog to follow), they should not have be involved in physical altercations, particularly if the Defendant is drunk and/or stupid and/or both.

If you want a good old fashion ass kicking or otherwise desire to paint a target directly on your face, there are easier ways to do that which do not land you in jail.

Bottom line: If you must get drunk, do try not to be stupid.

December 15, 2011

Merry Christmas, Happy Holidays, etc.....

The holiday season is upon us which means party, party, party; which actually translates into eat, drink, eat, drink. Please be reminded during this season to either limit the drinking, appoint a designated driver or take a cab! It is so much easier and less expensive to pay a cab then it is to retain us for a serious DUI charge.

As a reminder, the police are out there in force and boy do they love making DUI arrests. I was defending a client today who suffers from MS. She was stopped by the police and they apparently smelled alcohol on her breath. Because of her medical condition she was unable satisfactorily perform the field sobriety tests and because she was so emotional at the arrest, she was unable to adequately blow in the machine. She was charged with a refusal to blow as well as all the DUI citations.

We defended this nice young lady at the Administrative hearing where the MVA was attempting to take her license. We won that hearing and thus the MVA was unable to sink it's claws into her license. I appeared in Court today and after much debate, I was able to have all the alcohol charges thrown out; a positively wonderful result for our client.

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May 8, 2010

Firefighters, DUI and Video tape

We recently resolved a DUI arrest in Howard County against an aggressive State's Attorney who enjoys litigating every case s/he gets their hands on! This firefighter, a State employee who risks his life for the benefit of others was arrested on suspicion of DUI following a simple traffic infraction and field sobriety exercises performed on the street. The charging document had all the normal [magic] language in it (cut and pasted from some other charging document as the gender is wrong half the time in these documents) accusing the firefighter of driving drunk. There was the smell of alcohol, slurred speech and poor coordination on the fields, all the normal stuff that makes the prosecutor gitty as a school child and permits the judge to find the defendant guilty! Fortunately, the arrest was also videotaped so we could see everything that happened in "real time" [Jack Bauer time]

We order the video tape in our extensive discovery to see what really happened here because half the time the video and the cut and pasted statement of facts are in stark contrast to what really happened- starting from the gender description and going on from there [you would be surprised how many officers have difficulty telling a man from a woman in their statement of facts]. We receive the video and sit down and watch it with the client. We watched it again, and then a third time and aside from the video showing our client and his car being stopped, there is nothing in the video that supports what Mr. deputy police officer put in his statement of facts.

This is not the first time this travesty of justice has occurred, it happens with some regularity and its very unfortunate because judges and jurors listen intently to the exaggerations and lies of some law enforcement officers and are all too happy to convict unwitting defendants of DUI. I once had a case in Anne Arundel County that we got dismissed and I then proceeded to lecture the young arresting officer in the hallway about this type of crap and not to do it again lest he get in trouble and lose his job. Without the video tape as proof, there is sometimes little that can be done to protect the citizen against bogus trumped up charges. Most seasoned officers know what to write in their reports and how to testify in court and if there is no video tape, the cop has a high likelihood of winning and the Defendant and the people of this State loose. The citizens of Maryland loose because every Defendant who is wrongly convicted of DUI as a result of lies and exaggerations and sloppy police work is a threat to the liberty of all citizens in this State. You must remember, if this behavior can happen to them, it can easily happen to you on the way home from dinner with your spouse after a single glass of wine.

Did you know that the published legal limit for alcohol in Maryland is .08? Did you know that you can be arrested and convicted for DUI/DWI for blowing a .07, .06, .05 or lower? Bet you didn't know that; the Government doesn't publish this little tid-bit of information on their overhead roadsides on interstate 695, that but the police know it and this information helps their DUI arrest numbers and annual fiscal budget.

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May 23, 2009

Maryland DUI: Deplorable & Shocking Police Behavior

Regarding bogus DUI arrests in Maryland, I have had clients tell me about the nefarious behavior of officers for years, however I have never witnessed the behavior personally, until last night. On Friday, May 22nd at 10:50 p.m. I left Chilly's Restaurant on Route 32 and Londontown Blvd in Carroll County, Maryland, with my fiancee and her mother. I was lawfully sitting at the red light waiting to turn onto Route 32 North. At that time a female State Trooper (didn't get her car number, wish I had) drove past the intersection where I was waiting on the light and proceeded northbound towards Finksburg. The traffic was light at this hour as I was the only car at the intersection- mind you, just sitting there. After the trooper past me the light changed and I pulled onto 32 northbound as well.

At the next traffic signal, with the trooper several hundred yards in front of me, she strangely turned right and pulled into an empty parking lot of the medical facility, which I observed. Figuring she was up to no good I watched her. She then turned around and pulled out and began to follow. me. I'm thinking, well maybe she got a call, maybe she is not being evil, so I gave her the benefit of the doubt and executed a right turn onto a small street to see what she would do- mind you there have been zero traffic infractions as she just passed me at a red light.

I execute my right turn and what do you know, she executes a right turn behind my vehicle. This is unbelievable! I have done nothing and she is following me around hoping that I will screw up so she can pull me over. Getting madder by the moment, I pull into a private driveway and she slowly drives past my vehicle. I turn around in the driveway and wait a few minutes and what do you know, this female trooper with nothing better to do turned around again and drives past my position on the driveway and keeps going back out to route 32.

I need to travel down 32 to go home so I figure I'll see her again. I pull onto route 32 and a few seconds later, boom, there are the flashing emergency lights of the Maryland State Trooper. However, they weren't for me! Seems while she was on the side of the road "baiting" her next poor unsuspecting victim (hoping it to be me I gather), she got some other victim. I drove past her, went home and decided to put the word out.

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May 3, 2009

Drunk Driving Maryland

As if avoiding a Maryland Drunk Driving charge was not hard enough, it seems I'm hearing more about nefarious police tactics- from the police themselves and a prosecutor charged with DUI in Howard County whom I recently vindicated. That is, if you catch an officer's eye and he wants to pull you over and can't find one of many reasons from his handy DUI playbook, ie. you weren't speeding, swerving, riding the fog line, crossing the yellow line, littering, your tag light was not burnt out thus couldn't be seen from three miles away in the rear view mirror, etc., the latest mechanism is for him to ride your bumper. Yes, that's right! Your driving along at night, minding your own business, admiring Howard County's splendor or Anne Arundel County's many wonderful attractions or even Baltimore County on a slow night, when you notice headlights right on your tail, you notice them get closer and closer so you speed up, maybe change lanes without a blinker then speed up, wham! Your done like bug in spider's web.

What just happened is that the officer could not find a lawful reason to pull you over so certain officers (not all) will take it upon themselves to push you, to push your tail until you speed up and break the law. You speed up over the limit and he has a lawful basis to stop you. You then plead with the officer that he was riding your bumper, but he chuckles while he asks you "How much have you had to drink tonight because I think your driving drunk?

The funny thing is that "certain officers" have done this little maneuver to other police officers and pulled them over. Sometimes they are released, sometimes not. Sometimes the DUI charges may be dropped, sometimes not. Either way, this is a nefarious little DUI detection maneuver that you should be aware of.

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April 19, 2009

We take ourselves too darn serious

Here I am enjoying a lazy Sunday afternoon and staying current on the latest Maryland DUI issues which may effect my DUI clients when I came across the following alcohol related article regarding a DUI charge on a bar stool. I thought that was a little weird so I figured I'd remind the public about Maryland DUI law as it relates to unusual (and sometimes silly) "vehicles".

First, the Maryland legislature has past Maryland Transportation Article 11-176 which says in pertinent part that the definition of vehicle means any device in which a person or property may be pulled or towed on a highway. Alright, that sounds reasonable right? Well, that includes motorized bar stools. So if you are creative enough to build a motorized bar stool in order to whisk yourself off to the local watering hole, you could have a problem on the way home (sorry Norm).

The problem with such an expansive definition of vehicle as it relates to Maryland Drunk Driving however is that it is quite expansive and I would argue, overreaching. The definition of vehicle would include service animals such as horses, it would include a child's wagon, a riding lawnmower, a bicycle and the like. There are instances of all the foregoing in the news and on youtube.com. There are videos of a guy being stopped on his riding lawnmower on a street in his neighborhood and another of a guy on his horse. I suppose there are arguments that could be made regarding the propriety of riding a lawnmower drunk on a small neighborhood street or riding a horse but I don't think it should rise to the level of a DUI in a personal vehicle. Do you disagree, if so, no more enjoying a cold beer on a hot day while cutting your lawn. Well, there is always the story of some poor guy in a child's wagon being arrested and charged with DUI. Now come on, that's just ludicrous!

Remember, the Maryland statute does not allow a citizen to operate a "vehicle" (Read=lawnmower or wagon) anywhere (public property or private) while impaired. Thus, if your riding your ATV on your own personal property and the police somehow stop you and detect alcohol on your breath, your popped. As an ATV rider, I'm not suggesting it's a good idea to engage in this behavior but I am suggesting that it strikes me as unusual that the government has a hand in what I elect to do on the privacy of my own property. Put another way, if your enjoying a weekend cook out at your house and consume some cold beers and subsequently sit in your child's wagon and ride down the driveway (you must be intoxicated), you can be arrested if the police happen to be driving down the street and observe erratic wagon operation. Moral of the story, if your going to operate a wagon after drinking, stay right of center and don't tailgate.

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January 11, 2009

Over the limit- Under Arrest ?

I have always maintained that DUI defense in Maryland is a strange animal. DUI law it seems, is the only criminal field where the accused faces significant jail time and other life altering problems yet the defendant's rights are severely limited. That is, limited Miranda rights, false advise by the police and limited access to counsel. I have previously written that the police can and do ask a lot of incriminating questions prior to making a formal arrest, without Miranda warnings, and can use the responses against you in court to advance your conviction.

However, we now have the State of Maryland promulgating false advise to the citizens of this State. How many readers have seen the digital signs on Baltimore's beltway 695 that say "Over the limit- Under Arrest?" That sign implies to the driver, under the limit, not under arrest; everyone knows the legal limit is .08. So as long as you stay under .08 you have no problem- just like the sign says, right? Ehhh, no.

Many clients come to the office wondering how they were charged with an alcohol related offense when they only blew a .07 or less (.06, .05, .04, etc.). The nasty little truth is that there is another charge called DWI or driving while impaired. The courts and or the prosecutor generally lean towards DWI when they see a number like .06 or .07. If you blow in that range you will be arrested by the police and charged accordingly. You will face many of the same problems as if you blew a .08 or better. In fact, I see many defendants with numbers less than .06. I recently had a client blow a .03 in Prince George's County; he was arrested and defended by my office; of course we got him off the charge but he still had to retain counsel and go through the motions.

Importantly...

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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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December 16, 2007

DUI Super Cops & non existent quotas

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 Drunk Driving. 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.

July 9, 2007

How to select a Maryland DUI Defense Lawyer

Day to day I don't have any particular agenda regarding what to write about but instead when I'm in DUI court, things seem to happen which prompt me to write a post. Today I was in court in Anne Arundel County, Maryland and listened to a case which was called before mine. The gentleman was apparently weaving in his vehicle while he was towing a boat. The suspect was stopped and refused to blow in the State's breath machine and he refused to engage in the State's roadside gymnastic exercises. (Hurray for this man)!! That is, upon being pulled over the suspect was smart enough to let the police do their job without giving the police all kinds of evidence to use against him. DUI defense attorneys do not see too many cases like that.

Anyway, in court the suspect's attorney elected not to try the case based on these facts. Instead the attorney simply plead the defendant out to a guilty charge and it was over. The client was placed on probation and had to complete all the requirements of same and may or may not have even known what type of case he had. (By the way, while in the process of pleading the case out the attorney engaged in a loud and heated argument with the judge's bailiff on two separate occasions. The judge was very nice, a different judge may have knocked the lawyer back on his heels for this type behavior.) Frequently when I'm in court I'll see cases that are plead out that really should not be. Cases where client's plead guilty but instead should plead not guilty and should fight their case. Many cases can actually be won if an effort to fight is made. That is, if you do not fight, you cannever win.

The point of this entry is that you really need to know something about the attorney you are hiring. You need to be prepared to spend a descent amount of money for fair representation. That is, if you do not pay enough to be represented, you won't be, you will just be plead out. Now sometimes a good result may be reached by pleading, there is nothing wrong with that if 1. there is a decent deal on the table and 2. you don't have a decent defense. But in cases like the one I saw today, there was a decent defense and it should have been tried. Heck, if the attorney lost the case, he would have ended up right where he started and at least he would have taken a "shot at the ring" on behalf of his client.

I had a DUI case with this very same judge earlier this year. My facts were much worse in that my, under the age of 21 client, had an accident, there were drugs found on him and he blew a .15. I tried my case before this judge and got the drugs suppressed and I kept the .15 out of evidence. Result: Not guilty of possession and not guilty of DUI. My point is- one has to be ready to fight in order to accomplish anything worth while.

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July 5, 2007

What if I am a Diabetic?

I recently concluded a case for a lady who blew a .19, she was a diabetic and was stopped in her car while racing home, above the speed limit and blowing through lights in order to get to her meter to test her sugar levels. She had insulin injections with her but no meter. When arrested she was noted to have slurred speech, nystagmus, and was unsteady on her feet.

Now, how does a depressed blood sugar level present itself? Known as hypoglycemia (low blood sugar) a person will have slurred speech, poor balance, impaired motor control, staggering, drowsiness, flushed face and will possibly be disoriented. All of the normal things the cops look for. They see it in a person suffering from this condition and then make an arrest for DUI. In my case, the lady told the officer why she was racing home and what she needed but naturally her claims fell on deaf ears.

So off to the station house we go for a breath test which will surely exonerate our young client right? Wrong! As previously discussed the infra red device in the intox is designed to pick up the molecular structure of ethanol alcohol. Unfortunately for this driver, a similar molecular structure exists in a wide variety of breath constituents known as the "methyl group" and will be picked up and identified by the magic box on the cops desk as ethanol alcohol and used against the driver.

In this case, the diabetic has acetone on her breath. Acetone on the breath is a well documented by-product of hypoglycemia. The machine will register the acetone in the breath and yield a BAC reading when the driver may have consumed no alcohol or it will magnify the BAC where she has consumed alcohol.

The result for this particular driver was that her BAC number was thrown out at the administrative hearing and she received an unsupervised probation in Court.

July 4, 2007

Where can I be arrested?

A client recently contacted me to represent him for DUI for driving his vehicle on strictly private property. That is, he was attempting to get his vehicle out of a wooded area when arrested. (How the vehicle got in the wooded area in the first place is beyond the scope of this blog). I have also documented a number of DUI or alcohol related offenses on "vehicles" other than cars. So I thought I would clear up the confusion regarding where exactly you can drive in the state of Maryland and what you can operate after having consumed alcohol.

First the where may I drive? The answer is nowhere. (Trans. 11-127) Maryland's alcohol statute 21-902 and the transportation section 16-205.1 have been interpreted by the courts to mean that a driver may not operate a vehicle anywhere in this state, public or private, after having consumed significant alcohol. There is a case on point that says operating a motor vehicle on one's own private while over a .08 BAC is sufficient to be violative of Maryland's statute. Now this can be contrasted with driving on a suspended license which only applies to public property or private property used by the public at large.

Second, what may I drive? A bicycle, horse, scooter, tricycle? Answer: None of the above. The legislature has drafted the definition of vehicle in the transportation article 11-176 to mean any device in which a person or property may be pulled or towed on a highway. A highway is expansively defined as essentially anyplace traffic may go. It has been interpreted to include private land. Thus, for those with a desire to know, almost any vehicle, including a wagon, but excluding a personal device designed to transport a handicapped person, would be enough to satisfy the statute. Operating this vehicle any place in the State, even completely private property would likewise be enough to satisfy the statute.


June 2, 2007

What are my Maryland DUI Rights?

So what are my Maryland DUI rights anyway when I get pulled over late on a Saturday night for a suspected DUI/DWI infraction? Some friends tell me to blow others say don't blow, do the field sobriety tests, don't do the tests, answer questions, don't answer questions and what about my Miranda rights and don't the police have to advise me of them?

Alright, here it is! When stopped by a police officer, he must have a legal basis to stop your car. He will always come up with a reason to stop you, but many times we can challenge that. Now, you have been stopped, once the officer smells alcohol on your breath, you are basically cooked! He is going to arrest you. Everything he does from this point on is geared towards obtaining evidence to use against you in Court. That is important, everything from here on is engineered to use against you in court!

The cop does not present it that way, he tells you that if you will do the tests (we like to refer to them as exercises or roadside gymnastics) that he might be able to let you go. It is highly unlikely this is going to happen. The DUI coordination exercises are relatively complicated for a sober person to perform much less anybody that has had a drink or is scared late at night, or is not dressed properly to attempt them or is uncomfortable on the side of the highway. Each time you make a minor mistake on the DUI exercise, he writes that down and uses it against you in court. By the time you have completed all the exercises, the cop has quite a little arsenal to use against you; and oh yes, you are being arrested and taken to the station where more evidence will be gathered to use against you. Again, the reason for the DUI arrest is largely because of the odor of alcohol on your breath, the field sobriety exercises were just the icing on the cake to arrest you.

The field sobriety exercises consist of the horizontal gaze nystagmus test, an eye test looking for jerking of the pupil, the walk and turn test, wherein you are told to walk on a line, heel touching toe and turn around and come back. and the one leg stand, where you are asked to balance on one leg for thirty seconds without falling over. Good luck.

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