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A question that comes up frequently in a Maryland DUI Arrest is whether or not a defendant should tell their employer about the fact that they have been arrested and charged for a DUI or DWI.

The fact that a person is accused or charged with a crime is their own business and not anybody else’s business unless there exists special job related circumstances. Remember, any person can be accused of committing a crime. Being charged with a crime is very different from being convicted of that crime. When a judge or jury has spoken and the accused is convicted of a crime that may rightly impact some types of employment. However, the fact that somebody has been charged with a crime, tends to place that person under a questionable and possibly irreversible light, even if they are subsequently found to be not guilty in court. Thus, unless you fall into a specific category of jobs, telling one’s boss or employer that they have been “charged” with an offense is generally not necessary.

Having said that, a few exceptions spring to mind. First, if you have a secret Government clearance and part of that clearance is a contractual obligation to tell your employer that you have been charged with a crime. In that circumstance it is incumbent upon an accused to at least advise their employer pursuant to their contract for clearance that they have been charged. Generally speaking employers under this circumstance will withhold punishment until the matter goes to court and has a final resolution. This is important because in many cases it is possible to be found either not guilty or to avoid the stigma of a “conviction”.

Other employers may have an employee handbook or other policy which clearly states that you must advise your employer of a DUI conviction and/or a DUI charge, generally speaking military personnel are a good example of this also folks that drive as part of their job. So for example, a travelling sales person, like medical sales; this job tends to be rather specific on the issue of reporting traffic/criminal charges. The reason is because they have civil liability if you get into an accident while on the job or otherwise driving their car or driving at their behest. If it is proven in court that the employer knew or should have known about an employee’s DUI record and the employer gave them a car anyway, the employer could suffer liability for subsequent injuries to a third party.

Thus, if you are a traveling sales person or if you are provided a company car, or if you have been advised by your employer at the time of hiring (or subsequently) that you must report DUIs, alcohol offenses or traffic matters, then you must do so or the employer could have a strong basis for termination or punishment, not just for the underlying DUI offense, but also for your failure to follow the employer’s rules.
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We were contacted this very morning (Sunday- yes we see clients on Sundays) by a poor guy that was stopped while driving his truck because his fender was hanging too low. Deputy Doughnut smelled alcohol on his breath and demanded the fields (which you do not have to perform). Following the fields, which the accused thought went well, the accused was arrested. At the police station he blew a .06 and was charged with DWI, (driving while impaired). He has two questions:

1. How can I be arrested for DWI while blowing under the legal limit of .08?
2. Did my number get lower as a result of exhaling or breathing out my nose and mouth?

As we know from my numerous earlier posts on the subject, you can and will be arrested even for blowing a low blood alcohol number. The legal limit advertised on TV and road signs is .08, that is a governments dirty little secret. The cops don’t give a hoot about the number because they know they can get you anyway! If you blow a .04-.07 or lower, they can and will arrest you; particularly if you exhibit weird behavior such as driving erratically, or poor field tests (which you should not be doing) or acting strange or showing other signs of impaired coordination. One’s BAC (blood alcohol content) is a great tool for the police and courts to convict you of DUI, but in the absence of .08 BAC number, the cops simply look for other behavior that supports their witch hunt. Poor performance on the field tests is more then adequate to support that endeavor.

Robinson & Associates DUI Firm has been called upon to defend all numbers in DWI cases and we win the overwhelming majority of such cases. However, I remember years ago in Carroll County with a recently retired judge, we had a .06 case and the client was under 21 so the judge must have thought he would use the experience as a learning lesson for that young man and he convicted the client of the DWI charge despite the low BAC. In my 20 years experience that is the only case that comes to mind that we have not been able to beat on a low number. But nonetheless, the clients are still charged, lawyers have to be retained, the case needs to be tried, the client is put through the emotional ringer, etc.
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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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Here are a few of the most common DUI breathalizer questions we get:

What are the DUI Breathalyzer procedures in Maryland?
Can multiple blows effect my breathalyzer result?
Does burping during breathalyzer increase my BAC number?
Can I be arrested for blowing a low number?

Maryland’s DUI breathalyzer procedures are documented in Maryland Transportation Article 16-205.1 and in COMAR 10.35.02.0(g). Together they say quite a bit about the requirements for a proper blow and therefore, if interested, you should consult these sections beginning with COMAR because it’s easier to decipher and more to the point. Here are some of the requirements in short:

1. The DR-15 rights must be read to you in their entirety or you must be given the form to read yourself, completely, prior to being asked to blow in their magic happy box. If this does not happen, then your breath results should be excluded both in Court and at the Administrative hearing under 16-205.1
2. You must be watched for 20 minutes by LEO (law enforcement officer). You must be watched by either the arresting LEO, the breath operator or some other cop who has time on his hands (in between doughnuts) to make sure you do not put any foreign objects in your mouth or system. Foreign objects like food, alcohol, water, gum, chewing tobacco, etc can potentially have an impact on your BAC score. This is why many times they will not let you go to the bathroom before you blow; although the nice ones sometimes will.

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3. They will then sit you down in front of the machine and basically tell you to take deep breath and blow in the machine until they tell you to stop (the machine will indicate when it has had enough of your breath). TIP: The cops tell you to take a great big breath because the deeper and longer you blow, the higher you go! You see when you breath deeply your getting the deep alivolar breath in your lungs number one, where the alcohol exchange takes place from your blood. Thus the more expelled air you get from there the higher your BAC number will be, versus simply inhaling air in your nose or mouth and quickly exhaling it. TIP 2: The deeper you inhale and hold your breath prior to exhaling, the more time the alcohol has to dissipate into the air that you will exhale. Deputy Dawg knows this and will encourage you to take a deep breath, hold and exhale thus maximizing your BAC score. Conversely, shorter breaths which remain in the mouth, breathing passage or lungs for a short period of time lack the same exchange time and thus result in lower or more fair and reflective BAC number.

4. You will be asked to provide two breath samples to the magic box. If the two breath samples are not within .02 of each other (absolute difference), then you will be asked for a third breath sample. Of the three samples, two must correlate within .02, if they do not, the samples will be rejected completely.

5. Before and after you blow, the machine will do a self test and in the self test, the blank test must report .00 BAC (ie. blank) and then must test itself with a known .08 solution (which the machine has attached to it) and the test must report within 10% of .08, ie. the machines margin for error. TIP: Whoops, bet you didn’t now that! The magic breath machine has a 10% margin of error right from the manufacturer’s own documentation and also in COMAR. Thus, if you happen to blow, say .08 which is enough to find you guilty of the per se charge, it could actually be a .072, under the per se charge. But, who’s counting the details? After all, it’s only your job, life and freedom on the line right?
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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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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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This blog involves two issues in current events, the first is the omnipresent drinking and driving and the second is gun control. The gun control issue is heating up to a boil today as a result of the recent shooting at an elementary school up north where countless kids were taken at the hands of a crazy man. Today President Obama is slated to make his recommendations for assault weapon gun control and probably push them through by executive order thereby side stepping the idiots in Congress who are unable and unwilling to accomplish anything other then 4pm drinks and lavish dinners at the Capital Grille paid for by the NRA while Congress stands around wondering what in the world they ought to do about these ongoing terrible tragedies, in fear of course that if they speak out the NRA will have them voted out of office next election.

This naturally poses a vexing situation for any good politician who desires to keep his seat and continue to ride the gravy train for another few years. After all, the NRA has a perfectly good solution to the military style firearm issue, hey “lets just put armed guards in all schools across the country” that should solve the problem because these guards can be all over the school at one time and protect all the students and that way we don’t have to ban these weapons. After all, the weapons are so important in our industrial society, everybody should have right to buy and own one of these; how could we possibly live without them? Thankfully, as a result of the tragic continued carnage which is spread throughout this county, even intellectually honest right wing gun folks realize the need for modification of assault weapon gun laws. Whether you like Obama or not, at least he has the fortitude to move on tough issues; he is not afraid of the fight, of Congress’s inept bullshit or the NRA. Gotta give him credit for that, right?

Anyway getting back to the matter at hand, according to above news clip it seems some brilliant decided to go out and get drunk and get into an accident. Following the accident he decided he had not had enough frolicking for one night so when the police arrived on scene he actually pulled out a gun and pointed it at the officer. Well, the story did not end well for that poor sole. Apparently, the office was none to happy about having a gun pointed in his general direction in the hands of an impaired individual so the officer unloaded a few rounds at the drunk driver and the driver was killed.

It is unfortunate that the officer was put in that life threatening situation where he had to use his service revolver to end a situation which should never have occurred. It’s hard to imagine what was going through this poor guy’s head directly prior to some lead going through his body. One thought may be he was attempting cop assisted suicide. This is where people intentionally place cops in life threatening situations solely for the purpose of having the cops shoot them. I suppose it’s a faster and more full proof way to achieve the desired result and you get some news publicity at the same time. It’s not great for the officer however who may otherwise be able to go his entire career without shooting somebody in the line of duty. There are emotional ramifications for taking a life despite Hollywood’s glamorous characterization.
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This is EXACTLY the type of crappy DUI ARREST behavior that concerns me the most as a DUI lawyer in Maryland. As I have written numerous times before, the courts, judges and juries place waaaaay too much weight on the insidious accusations that some police officers write in their arrest statement of charges. The courts (too many of them) accept these accusations as gospel which is ridiculous and unfortunate because cops in many jurisdictions learn what they need to say in their statements to gain a conviction and just make up facts as they go along to get what they seek.

I was stopped one night leaving my law office on my way home and sadly it was past midnight which means cops can make up any story they want to stop you. This cop indicated that I was driving “all over the road” which was almost comical, since my Audi never left my lane of travel. When the cop failed to smell alcohol on my breath and learned I was a DUI lawyer, he quickly lost interest in me and left the scene to prepare his snare for his next victim which would surely be easier prey.

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