Articles Posted in The DUI Arrest

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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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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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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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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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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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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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Is a Maryland DUI a felony or misdemeanor?

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

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

In a word yes!

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

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

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

1) Where you were sitting/sleeping in the car (yes you can be charged with DUI even if sleeping in the car)
2) Was the engine running 3) Were the keys in the ignition 4) Were the headlights on 5) Was the car legally parked in a space or were you sleeping in the middle of the road 6) Was the car in gear
These factors lend some guidance to the judge in his attempt to determine whether you were in “actual physical control” of your car. If the judge finds that you were sleeping the driver’s seat of the car in the travel lane of the road, or even on the shoulder of the road and the engine was running, it is more than likely that you will be found to be in actual physical control of the car and thereby the chances of conviction of DUI are enhanced.

Conversely, if you are sleeping in the backseat of the car (a very good place to be) or in the passenger seat of the car and the keys are on the console or perhaps in your pocket and the car is legally parked in a designated space, then this would significantly improve the chance of not being physically in control of the car.
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Warrantless DUI Blood Draws are the Focus of a U.S. Supreme Court Case
Police officers forcing DUI suspects to submit to blood draw tests without a search warrant has been a highly contested issue in this Country. On January 9, 2012, that subject became the focal point of a case argued before the U.S. Supreme Court. In Missouri v. McNeely, a Missouri state trooper stopped a man who was speeding and swerving his car. According to the state trooper, the driver was unsteady on his feet, had slurred speech, there was alcohol on the driver’s breath and his eyes were bloodshot. The driver failed several field sobriety tests and refused to submit to a breath test.

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

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

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