Articles Posted in The DUI Arrest

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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 lose. The citizens of Maryland lose 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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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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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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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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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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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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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.

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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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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.

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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.