December 7, 2008

But your Honor, he was Polite & Cooperative

So, you get arrested for DUI/DWI in Maryland, what do you do? The trial Judge may ask the arresting police officer if you were "polite and cooperative" and the officer's response can, in some instances, play a role in what the Judge does with you. However, what does this really mean?

If you were charged with a more serious crime than DUI you would know that you have rights, Miranda rights that is and hopefully you would know to stay quiet and say nothing until you had the benefit of sage wisdom of counsel. However, in DUI arrests, the Miranda warnings are rarely imparted upon suspects. Is that legal you ask? Well, in a word, yes. It's legal. Reason: Miranda warnings are not a requirement for a legal arrest. They are a requirement for the police to gain admissible information following a legal arrest.

Thus, in the DUI DWI scenario, the I/O or investigating officer is perfectly within her rights to arrest you and never give you the Miranda warnings. However, there are two things you want to know. One: after you are actually arrested (handcuffed) anything she asks you then requires the Miranda warnings or your response is not admissible. Two: the police typically ask you all the damning questions prior to the actual arrest (ie. the handcuffs). They can do that. If they gather oral evidence against you prior to the arrest, no Miranda warnings are necessary at all as the courts have determined that you are not arrested and therefore don't need said advice.

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August 11, 2007

But I'm not guilty......I have rights!

I can go to dinner Saturday night and have two drinks and not worry about driving home. I won't be drunk and therefore I won't have any DUI/DWI issues. I live in America and in this country we have rights! We are innocent until proven guilty in a court of law, and that applies to all cases, even DUI/DWI cases in Maryland.

Well, you might want to think twice about that. First of all, I have to say it's probably not safe to even have two drinks and drive home; depending on the size and quality of those two drinks; it could be enough to get you in hot water. One drink, one lousy drink is enough to get you arrested, but chances are even in the present climate they might let you go at one. The thing is, if the officer smells alcohol on your breath, that's it, he's more likely than not going to arrest you. Their standard question is, "have you had anything to drink tonight?" You say yes, that's it- field sobriety tests and a ride to the station. You say no, and if he smells it, same result. I (like most DUI defense attorneys) am not an advocate of the field sobriety tests or police coordination exercises as I like to call them. These exercises are engineered for you to fail so I do not recommend to my clients to engage in their exercises, which they "grade" in order to find a reason for them to arrest you.

But anyway, that is not the subject of this entry. This post is about being arrested, blowing below a .08, being charged and going to court. You might find it interesting to note that the world is against DUI drivers, juries and judges are against DUI drivers however, you now have another entity to deal with in court in your pursuit for justice. MADD is now the recipient of a $400,000.00 grant from the Federal Government to "monitor" DUI cases in New Mexico. It is their job to sit in court and "monitor" what the trained prosecutors and elected judges are doing in court with these cases; as if the prosecutors and the judges were not under enough pressure to convict, convict, convict. Did you know that our elected jurists and the government selected prosecutors, who have all earned legal degrees and must have impeccable credentials, require "monitoring" from some third party organization who wishes the Constitution was never drafted and considers defense lawyers protecting your rights as American citizens to be a part of the DUI problem?

I was in court in Howard County Maryland last week on a DUI. I walked up to the prosecutor's desk to tell them we were ready for trial. While I was talking to the prosecutor, sitting right on the desk in front of me was a fire engine red business card stating "MADD Court liaison". I said to the prosecutor, what the hell is this! Right here in our home state of Maryland, MADD is sitting in court and "monitoring" what our elected jurists are doing with DUI/DWI cases. Now we enjoy an open system of justice in America, court rooms are open and anybody is welcome inside to listen. However, I don't recall seeing any other organization's representative at a murder, rape, arson or first degree assault case. They apparently are only interested in making their presence known in DUI cases.

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July 3, 2007

I know how it works- so what should I do?

Now you know a little more about how the magic box on the cop's desk works and how it may not be reliable, what do you do about that when asked to blow?

1. Were you read your DR 15 rights? If you were not properly advised of your rights and signed off on the form you are not required to do anything. Albeit if the officer somehow failed to advise you of your rights, you may not elect to bring this to his attention just to allow him to fix the problem.

2. If you were properly advised it is very important that you have the advice of counsel to further evaluate your situation prior to you giving evidence against yourself. That is, blowing in the machine will result in evidence against you. Your government has somehow come to the conclusion that this is non-testimonial evidence and therefore you lose certain safeguards but that is a post for another day. The important thing is to contact counsel, if possible, for advice.

3. If DUI counsel is not available then you should understand that your failure to provide a breath sample will result in your driver's license being suspended administratively for 120 days. This

oftentimes
is untenable for a DUI suspect so they may be compelled to blow against their better judgment.

4. However, if this is a multiple offense for the driver, ie. second, third or fourth, one may want to consider very carefully the ramifications of blowing and severely hurting one's case versus loss of license (which may be modifiable by an interlock) because on a multiple offense the very real possibility of jail time becomes magnified and enhanced.

5. If one does provide a sample which is over the legal limit, some of the administrative penalties can be avoided and one always has the potential defenses to the machine as discussed in earlier posts regarding reliability.

So, what to do if arrested for DUI? It's a personal decision which can be assisted if counsel is available to discuss the matter. Ironically, as an arrested driver pending a test, not only do you have the absolute right to speak with counsel prior to giving a breath sample, you have the right to a face-to-face communication with your attorney at the police station prior to blowing if you request same. Here's where it gets fun because most police either do not know that you have this right or they will not allow you to exercise the right if you request it. Therefore, be sure to exercise your constitutional right and ask to speak with counsel prior to giving any test. Should the police deny your right to counsel, the evidence obtained or lack thereof will probably not be admissible against you in court.