Articles Posted in The DUI Arrest

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Do the cops have to read me my Miranda Rights in Maryland after a DUI stop?

This is a common question that we get at Bruce Robinson and Associates, Maryland’s DUI Law Firm. Lawyer T.V. shows tend to portray lawyers as having a glamorous job they misrepresent a few things about lawyers and the law. It works the same way with medical dramas. After a few episodes of E.R. I feel like I can diagnose any disease.

Often people have assumptions about the law because they saw something on T.V. Most people who haven’t been living under a rock believe that the police have a legal obligation to read you your rights during an arrest. This can be correct depending on the type of case but it is also misleading. The origination of these rights stems from a landmark criminal case known as Miranda v. Arizona which involved kidnapping and armed robbery, among other crimes perpetuated by a laborer that was in and out of trouble his whole life. It had to do with a coerced confession without counsel- of defendant Ernesto Miranda.

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What You Need to Know about Maryland New DUI Law: Noah’s Law

GlassDriving after having a few drinks on a night out is never a good idea, and the DUI penalties in Maryland that were once considered potentially lax compared to surrounding states will now be made to be far more severe for those finding themselves in this unenviable position, especially if there was a car accident. By way of background for the new law:

On December 3rd, 2015 Montgomery County officer, Noah Leotta, was fatally struck by a drunk driver. Leotta was returning to his car after conducting a stop on another vehicle when Luis Gustavo Reluzco, 47, was driving and hit both the police cruiser and officer Leotta. The result of this young officer’s death lead to the Maryland State Senate’s unanimous passing of ‘Noah’s Law’ in March of 2016 and will go into effect this Saturday October 1st, 2016. The DR-15 (Advice of Rights) which the officer must read to you prior to requesting you to blow in the machine at the police station has changed accordingly and become far more severe than it has ever been regarding the MVA consequences to your driver’s license.

The new law addresses test failures (ie. a blow of .08 or more) and alcohol test refusals before court and the effect of a DUI conviction on your driver’s license after court. Noah’s law lowers the blood alcohol level at which ignition interlocks are permitted and encouraged to be installed from 0.15 to 0.08. More specifically, you can either install an interlock for 6 months or you will be suspended for 180 days for a first offense .08 case; this is an increase from the standard 45 day suspension.  Noah’s law will also essentially require an interlock for individuals who have refused a breath test, not just those who have been convicted of driving under the influence. Again, if you do not take the interlock for a period of 1 year following a refusal to blow, your license will be suspended for 9 months.  Thus, it does not make much sense to go without a license for 9 months or 270 days when you install the lock for a period of 12 months and be on your way.  As you can see in the convenient chart below, the new law will significantly increase mandatory suspension periods for those who choose not to install the interlock device.  The state is sending a very strong message that if there is any alcohol or DUI infraction along these lines, an interlock is all but mandatory if you need to drive.

Once the law goes into effect on Saturday, the new legal consequences will give Maryland the push to join the other 27 U.S. states that currently require interlock devices for persons convicted of drunk driving. The sanction of ignition interlocks for those convicted of DUI has reported to yield the lifesaving results of not only a 67% drop in DUI recidivism, according to U.S. Centers for Disease Control, but also a reduction in alcohol-impaired traffic fatalities mostly in part to laws mandating interlocks for all convicted drunk drivers; NHTSA data.

 

 

Comparison of Current Administrative Per Se Penalties

v

 Increased Administrative Per Se Penalties Under the Bill

 

                             

                        Above 0.08

   

Above 0.15

 

     Test Refusal

Offense Current New Current New Current New
First 45 days 180 days 90 days 180 days 120 days 270 days
Second (subsequent) 90 days 180 days 180 days 270 days 1 year 2 years
Accident death 6 mths same 1 year same

 

Source: Department of Legislative Services                                              BAC = Blood Alcohol Concentration

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No DUI or criminal case is a slam dunk for the prosecution. Trial work is always fluid and anything can happen when you tell the Judge “Ready for trial.”  Have you ever noticed how many people never say that and just plead cases away? At Bruce Robinson & Associates we are a trial firm, we try DUI cases and we don’t hesitate to say “Ready for Trial.”

A recent example of this happened today in a DUI case in Cecil County, Maryland.  This Defendant was a multiple DUI offender with 2 DUIs within the past 5 years.  Two DUIs inside of a ten year period of time is a bad thing because the defendant is unable to get a probation before judgment and therefore must flat out win his case or he will suffer the consequences of a DUI conviction. In addition to being a multiple offender, this client also had a very high breath result. The State’s Attorney was demanding jail in front of a tough District Court Judge who would have loved nothing more than to oblige the State in it’s demand.

The Prosecutor asked me if  she needed all of her officers for this case. I was thinking, what a strange request, of course you do; evidently sh was used to too many lawyers who just roll plead their clients out. I told the prosecutor that not only did she need all her officers,  but they needed to be in the court room (not just generally available).  After half of the docket went by I began to see a glimmer of hope in the case that the State may not be able to prove its case because the arresting officers may not be available for trial. Ironically, the prosecutor never even checked in with her officers the day before as she is supposed to in order to obtain their presence in court.

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Will I lose my job if I get arrested for DUI? Always a question on the lips of those arrested for an alcohol violation in Maryland. The short answer is probably not! In our over 20 years experience I can count (probably on less than one hand) the number of times a person has lost their job for a first or second time DUI arrest. Obviously there are many factors that play into how one’s employer may feel about such and arrest and therefore, one of the threshold questions may be ‘will the employer find out about the arrest?’

The regular employer who is not a government entity does not typically sit around checking Maryland’s government websites to determine if one of their people has been arrested and therefore the decision is left to the employee to determine if and when this private situation should be made public.

At a minimum, unless you are under some form of legal obligation to disclose a DUI arrest, it seems best to disclose this information (if at all) after you have been to court. The reason for this is that there are many possible outcomes from the arrest, including a NOT guilty. Therefore, putting yourself in a negative light before going to court may not be the best idea. For example, telling your boss what happened two days later, you retain Bruce Robinson & Associates to defend you and you win your case in court. Now what? The employer has been stewing over the situation for months and now the arrest has gone away. You still look bad in the employers eyes, you could be passed over for promotions or any number of things.

Another possible outcome is going to court and receiving a probation before judgment (PBJ); this is not a conviction on your record and you do not receive the 12 points you would otherwise receive for a DUI conviction in Maryland. So now what do you tell your employer? You were arrested? You were not convicted? They are already pissed to hear you got a DUI and if you drive their cars during work, there could be an issue. https://www.mddwi.com
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Often times people will come into the office charged with DUI after providing a breath sample of less than .07 or .08. They wonder how it is they were charged in Maryland for DUI/DWI when they blew a legal BAC number between .01 and .06. This is an important question and a misnomer in the legal system. The TV commercials, billboards, and public announcements all indicate that a .08 BAC is the legal limit for alcohol in Maryland. Unfortunately, the little-known truth is that this is simply not correct.

You see, police officers in their zeal to make an alcohol related arrest and show the brass that they are making Maryland’s streets safer, while meeting their quotas, will happily arrest a driver with any BAC content as long as the driver is demonstrating some form of impairment. What is some form of impairment?

Well that’s really the easy part, some form of impairment means failure to stay within your lane of travel, such as crossing over the white dotted lines, it could mean speeding, and it certainly means a failure to perform the field sobriety test adequately when stopped by a police officer for any reason such as not wearing your seatbelt. In other words, failure to wear your seatbelt is now a first-tier offense meaning that you can be stopped and ticketed for this offense (in the past you could not be stopped for this violation alone). Once the police officer senses the odor of alcohol on your breath for something as minimal as one beer she will automatically get you out of your car for field sobriety tests. If you are like every other normal citizen you will not perform the field sobriety tests with 100% acuity and therefore the officer will arrest you for failing to perform the roadside gymnastic test adequately.

Once at the police station you will be asked to provide a breath sample which may come back low in the .02-.05 area and this is where you get charged in many cases despite the low and legal BAC number. It places the police officer in an awkward situation because she has wasted her time with a stop and dragging you to the station and wasted the time of the breath technician only to come back with a low and legal BAC. Nobody likes to have egg on their face so to avoid that you will be charged with DWI or driving while impaired despite having what you were told was a lawful BAC.
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Can you be arrested for DUI in Maryland if the police did not see you driving your car? To evaluate that question, it must be further broken down to were you sitting in the car or were you outside the car when the police arrived?

The easier question concerns if you are outside your car when the police officer arrived. If you are simply outside of your car when the police officer arrived and you are inebriated without more, such as an eyewitness or more commonly, ratting yourself out to the police, the answer would generally be no. The proof required by the state to prove the elements of a DUI charge would generally be inadequate under these circumstances.

The police are quite efficient at applying pressure and asking questions of a suspect in order to get them to hang themselves. The first question from the police officer will be, were you driving this car or “what happened when you were driving this car?” And then typically the defendant engages in a conversation thereby indicating that he was the driver and providing evidence that the state can now use against the driver in court. This is why the Miranda warnings indicate that you are not compelled to give evidence against yourself and that anything you say can and will be used against you in court. Make no mistake, they will use this type of evidence against you and it could be the only evidence the government has to convict you of the charge.
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One issue that seems to come up with regularity is whether to tell one’s employer or boss that they were arrested and charged with a DUI or other criminal event. Certain people with high levels of clearance or security may be required to inform their employer upon any infraction of the law. However, the majority of people do not have such strict limitations placed upon them. Some people may be concerned because their employee manual may speak to ramifications of a DUI arrest or they may have heard stories about other folks similarly charged.

For the normal person who does not have a clear and absolute obligation to tell their employer, we would generally suggest waiting until the matter is resolved in court, and even then we might consider the necessity of sharing such personal information. The initial problem that comes to mind with being charged is that a charge is not a conviction and therefore going to one’s boss and indicating they were charged with a criminal offense could place that employee in a less than favorable light. Then, when one actually goes to court and if they avoid a conviction or better yet beat the charge completely, that person will have unnecessarily put a stain on their employee record, as far as the boss is concerned, even if their case is won. It is for that reason that we would typically say wait and see what the outcome of the event is before telling anybody about the event. Additionally, some employers may take a fairly strict stance on this type of matter which may be completely unwarranted if the matter is won in court.
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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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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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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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