WORSE THAN JAIL!

If someone in Maryland is arrested for driving under the influence of alcohol, driving while impaired by alcohol or driving while impaired by drugs or drugs and alcohol, there is almost always a civil administrative action that may be held that deals with the person’s license to drive or privilege to drive in the State of Maryland. If a driver takes the breath test and the result is 0.08 or higher, or if someone refuses to take a breath test, the driver will be given the opportunity to request an MVA hearing. It is only when the driver is over 21 years of age and takes a breath test and the result is 0.07 or lower that there will not be an MVA hearing. However, if that same individual has an alcohol restriction on his or her license, this means that they cannot refuse to take a breath test or if they take a breath test and the result is 0.02 or more, then the MVA may take action against that person’s license or privilege to drive.

The MVA hearing is a civil administrative action held before an administrative law judge, more commonly referred to as an ALJ. There are approximately 60 different ALJ’s who travel throughout the State of Maryland to hear MVA hearings at either the Office of Administrative Hearings in Hunt Valley, Maryland, or at the various full-service MVA locations throughout the State of Maryland. The Fourth Amendment to the United States Constitution that deals with unreasonable and illegal searches, stops and seizures does not apply to MVA hearings. In addition, hearsay is admissible at the MVA hearing. Customarily, the MVA presents their case through documents and not through live testimony. It is only if the defense attorney or MVA feel that there is an issue that requires the officer’s presence that a request to subpoena the officer is filed with the Office of Administrative Hearings. If the subpoena request is granted, a subpoena is issued to the officer and he or she is ordered to attend the MVA hearing. Occasionally, the specified officer fails to appear and the hearing is then usually held without the officer’s presence. In District or Circuit Court, hearsay is not admissible, and generally the officer’s presence is required. There are times in District or Circuit Court where defense counsel might agree to a plea agreement before the trial date, and in that case, the arresting officer is not required to attend. The results of a preliminary breath test, or PBT, is admissible at an MVA hearing. At District or Circuit Court, the taking, refusing and the results of a preliminary breath test are not admissible at trial unless the defendant introduces that information to the Court.

At the MVA hearing, there are very limited issues that may be raised under Maryland Transportation Article Section 16-205.1(f)(7). The only issues that can be raised are:

1) whether the police officer who stops or detains a person had reasonable grounds to believe the person was driving or attempting to drive while under the influence of alcohol, while impaired by alcohol, while so far impaired by any drug, any combination of drugs, or a combination of one or more drugs and alcohol that the person could not drive a vehicle safely, while impaired by a controlled dangerous substance, in violation of an alcohol restriction, or in violation of Section 16-813 of this title;

2) whether there was evidence of the use by the person of alcohol, any drug, any combination of drugs, a combination of one or more drugs and alcohol, or a controlled dangerous substance;

3) whether the police officer requested a test after the person was fully advised, as required under subsection (b)(2) of this section, of the administrative sanctions that shall be imposed;

4) whether the person refused to take the test;

5) whether the person drove or attempted to drive a motor vehicle while having an alcohol concentration of .08 or more at the time of testing;

6) whether the person drove or attempted to drive a motor vehicle while having an alcohol concentration of .15 or more at the time of testing; or

7) if the hearing involves disqualification of a commercial driver’s license whether the person was operating a commercial motor vehicle or held a commercial driver’s license.

The ALJ only has the authority to suspend, restrict or revoke one’s driver’s license or privilege to drive. On a first offense with a breath test result of 0.08 through 0.14, the administrative law judge has the power to grant a restricted or modified license to permit the driver to drive for work purposes, to attend an alcohol prevention or treatment program, for school purposes, and for the purpose of obtaining health care treatment including a prescription that is necessary for the driver or a member of the driver’s immediate family and the driver and the driver’s immediate family have no alternative means of transportation available to obtain the health care treatment. Alternatively, the ALJ may suspend the license outright for a period of 45 days. On a second or subsequent offense with a reading of 0.08 through 0.14, the ALJ only has authority to grant a restricted or modified license as noted immediately above if the licensee has not been convicted of or been suspended for driving under the influence of alcohol, driving while impaired by alcohol, driving while impaired by drugs or drugs and alcohol or driving while impaired by a controlled dangerous substance. If the person has been convicted or suspended within five years, the ALJ has authority to allow the licensee to drive under the ignition interlock program. Alternatively, the ALJ may suspend the license outright for a period of 90 days. If the licensee takes a breath test and it registers 0.15 or higher, the ALJ has authority to suspend for 90 days on a first offense and 180 days on a second or subsequent offense. The only modification that the ALJ has authority to order would be the ignition interlock program. If the licensee refuses a breath test and it is the first such time, the ALJ has authority to suspend the license for 120 days for a first offense, and for a year for a second or subsequent offense. The only restriction that can be given is for the ignition interlock program, and it is for a minimum of one year.

It is crucial to retain an attorney who knows how to competently and effectively represent you. The attorneys at Shapiro & Mack,are ready to provide the highest level of representation at your MVA hearing.

An Edmunds.com analysis of driver fatality data from the National Highway Traffic Safety Administration found that the number of annual traffic fatalities for men between the ages of 51 to 65 rose by nearly 25% between 2000 and 2009.

During the same period, annual fatality figures for all male drivers regardless of age declined by more than 20%. Fatality figures for all females also declined 20% during the same ten-year period.

Meanwhile, drunk driving fatalities among men and women ages 51 to 65 increased by 37% between 2000 and 2009, while overall drunk driving fatalities among all drivers fell by nearly 7%, Edmunds.com said.

“We spend a lot of worthwhile energy teaching younger generations about the virtues of staying safe on the road — especially when it comes to the dangers of drinking and driving,” said Edmunds.com CEO Jeremy Anwyl, in a prepared statement. “But the baby boomer generation is not heeding the same advice they’re giving to their children.”

The data analyzed by Edmunds also shows that men are twice as likely to be intoxicated when getting into a fatal accident as women, and that drivers between the ages of 26-35 are more likely to be intoxicated when getting into fatal accidents than any other age group.

Edmunds.com has planned a car safety conference next month, to be held in Washington.

PART II

"Perhaps one day, the politicians will enact some effective DUI laws, rather than pander to their constituents claiming to be tough on crime. Until then, refuse the test."

Maryland has adopted a law of implied consent that when people are licensed in this State, or drive upon its highways, they will take the breath test.  If not, they could lose their privilege to drive on the roads of Maryland.  Seems straight forward, but things are not what they seem.

Years ago, Maryland’s politicians wanted to crack down on drunk driving.  They adopted the law that said if people adhere to the implied consent and give a breath sample, that breath can be used against them in a criminal prosecution, but the MVA would not preemptively take their licenses.  Obviously, if convicted and points were assessed, the MVA could then weigh in as to whether that driver should be only to continue to drive.  However, if someone refuses to take the breath test, those drivers violate the implied consent law and were presumed to be a threat to public safety.  As a result, the arresting officer would seize the driver’s license, issue a 45 day temporary license, and if a hearing was requested in time, give that driver a MVA hearing within 45 days to determine whether he should be allowed to continue to drive.

Then the politicians decided they needed to get tougher on impaired drivers.  A 45 day temporary license was then issued to two classes of drivers: (1) Those that refused the test; and (2) Those that had a blood alcohol content that exceeded the legal limit.  To make it attractive to take the test, the legislature gave out two different penalties: (1)  Refusers had two choices: (a) a 120 Day suspension or (b)  1 year with an interlock device installed in any car which may be driven by the offender;  (2)  those who took the test also had two choices: (a) a 45 day license suspension or (b) a 45 day restricted license that allowed drivers to drive to and from and in the course of their employment, to counseling, and possibly to school.  For those who took the test, it’s a no-brainer.  All opted for the restricted license.

However, effective October 1, 2008, a law came into effect that makes no sense.   That law creates a third category of drivers for administrative penalties.  It targets the “super drunk,” those who are approximately double the legal limit or more (.15%  blood alcohol content (“BAC”) or more).  For those drivers, no restricted license is an option, despite a driver’s compliance with Maryland’s law of implied consent.  Instead only two sanctions are available:  (1) a 90 day license suspension, or (2)  1 year with an interlock device installed in any car which may be driven by the offender.

The reason why this law makes no sense is because almost all first offenders are more concerned about the loss of license than criminal prosecution.  Therefore, they take the test, hoping to blow under .15% BAC.  However, many misjudge how much they have consumed and thus, not only do they offer the prosecution a breath sample to be offered in evidence against them, they also subject themselves to same MVA sanctions if they had refuse the breath test (the 1 year interlock).  Thus, the politicians have created a situation for first time offenders where, unless very little alcohol was consumed, it makes more sense to refuse to take the breath test. The MVA sanction will most likely be the same if one refuses or takes the test, but by refusing the driver gives us a more than likely chance of having the criminal prosecution dismissed.  Furthermore, although the politicians say that these laws are necessary to get impaired drivers off of the streets, the politicians merely made the laws tougher but did not appropriate enough money to hire judges and clerks to carry out the new tough laws.  As a result, extensions to the 45 day temporary license are routinely issued as it may take three to four months before a driver’s MVA hearing will be scheduled.  So much for getting the dangerous drivers off the road in less than 45 days.

How does the repeat offender fare under the new breath test law effective October 1, 2008?  Forget about taking the test, as there is zero incentive to give a breath sample.  Refuse, blow over .15% BAC, or blow just a bit over the limit, either way, the MVA will not give a restricted license.  Therefore, it’s either a suspension or the interlock. Thus, the law encourages drivers to refuse, as he MVA sanction will be the same, but a refusal allows us to have a fighting chance to achieve an acquittal.

Perhaps one day, the politicians will enact some effective DUI laws, rather than pander to their constituents claiming to be tough on crime.  Until then, refuse the test.

By: Jason A. Shapiro

ATTABOY!

By: David Zwanetz, Esq.

As a Howard County DUI practitioner I have handled countless cases where people have attempted to use their vehicle to sleep off a rough night of drinking and found themselves charged with DUI/DWI. It is of paramount importance to understand that “driving” for purposes of DUI law does not mean “driving” in the classic sense of the word. “Driving,” for legal purposes, is being in “actual physical control” of a vehicle. In this definition, the Maryland Legislature intended to differentiate between those inebriated people who represent no threat to the public because they are only using their vehicles as shelters, and those people who represent an imminent threat to the public by reason of their control of the vehicle. The benchmark Maryland case of Atkinson v. State, 331 Md. 199 (1992), describes six factors for Judges/Juries to consider when determining of one is in “actual physical control” of a vehicle:

1. Whether or not the engine is running or the ignition is on (strongest factor)

2. Whether and in what position the person is found in the vehicle

3. Whether the person is awake or asleep

4. Where the vehicle’s ignition key is located

5. Where the vehicle’s headlights are on

6. Whether the vehicle is located in the roadway or is legally parked

Thus, it is clear from the factors above, that one can be charged and convicted of DUI/DWI in Maryland without ever actually moving his or her vehicle. Getting into a cars driver’s seat, turning on the engine for heat, and falling asleep while drunk technically, legally, exposes one to a charge of driving under the influence or driving while impaired by alcohol. The only sure way to avoid a DUI charge in Maryland, or any state, is to never get behind the wheel of your vehicle, even if you don’t plan to move it, with any alcohol in your system. And if you plan to sleep things off in you’re vehicle, you should make sure your car is off and you’re somewhere other than the drivers seat.

This article was written by David Z. David Z. also trains and competes in Brazilian Jiu Jitsu at Baltimore MMA school, Crazy 88 Brazilian Jiu Jitsu.

BY: David Zwanetz, Esq.

First, it is essential to understand that it is not only illegal in MD to drive with above a .08 (driving under the influence), but also illegal and jailable to drive with .06 breath level (driving while impaired).  For many people, a .06 blood alcohol level can be reached after a single beer, shot, or glass of wine.  Contrary to popular belief, the proverbial one-hour waiting period is simply not enough.  Blood alcohol absorption can be affected by the sex of a drinker, the body fat percentage of the drinker, the size and weight of the drinker, the amount of food in the body, the food in ones system, etc.  This brings me back to my zero tolerance contention – if a single beer can cause one to be charged with DWI, the general population should be advised that NO DRINIKING is tolerable before driving; i.e., zero tolerance.  Well why aren’t they then?  In my opinion, the answer is simple – dui litigation simply brings too much money to the state.  Allow me to expand:

A large portion of my clients are law abiding citizens who thought it was legal to go out and have a glass of wine or a few beers and drive home.  Had they been advised that even a single drink could be illegal they never ever would have attempted to drive.  The legislature has drafted a statute that gives people the false sense that some alcohol before driving is legal.  This false sense contributes to a large number of first time dui offenses in Maryland and Howard County.  Why else, besides to trap otherwise law-abiding citizens and raise revenue, would the legislature make illegal small amounts of alcohol instead of none at all?

To rehash my theory, if the average law abiding citizen was advised that NO ALCOHOL was legal when behind the wheel they would simply have nothing to drink before driving – significantly reducing the amount of dui related incidents.  On the other hand, Maryland residents are lead to believe that some alcohol behind the wheel is legal.  The legislature is giving people enough rope to hang themselves and essentially asking them to determine if their intoxicated when their intoxicated – this is absurd! This article serves as my warning that drinking before driving in Maryland, even in minute amounts, can lead to a serious jailable charge of driving while impaired or driving under the influence.  To avoid serious charges, no alcohol should be consumed before driving, thus, keeping drivers safe, and in turn hampering the influx of revenue attained from uninformed drivers being arrested and charged with clearly avoidable conduct.

This article was written by David Zwanetz, Esq., Associate Attorney at the law firm of Shapiro & Mack.  David Z. also trains and competes in Brazilian Jiu Jitsu at Baltimore MMA school, Crazy 88 Brazilian Jiu Jitsu.

"counseling is imperative"

By: David Zwanetz, Esq 

Any defendant facing charges for a Howard County DUI must take steps prior to appearing in the District or Circuit Court to get evaluated by a Maryland Certified Alcohol Treatment Center.  Most first time DUI offenders will be considered for a probation before judgment disposition, which serves to strike a guilty finding. However, the Judge’s and State’s Attorney’s decision making process will surely focus on the Defendant’s actions post charge and pre-sentence.  Getting involved in counseling voluntarily and contemporaneously with the date of offense is one major step in the right direction to a lenient disposition. 

There are private organizations such as the Columbia Addictions Center, located at 5570 Sterrett Place, Suite 205, Columbia, Maryland, who will take swift action to properly evaluate and treat any alcohol or drug related issue. All Maryland treatment providers begin with an initial evaluation where standardized tests are given to place one in an abuse category.   The categories typically run from “social drinker” to “addict,” and based on the level or risk the provider will make a recommended course of treatment.  Generally a “social drinker” will be recommended to complete twelve hours of alcohol education while an “addict” can be requested to participate in open ended counseling.  Patients of any Maryland alcohol treatment provider can expect to be requested to submit to random urinalysis and to participate in both group and individual counseling.  Most treatment is done on weekly basis in an outpatient capacity. At times, however, an evaluation can revel a problem so grave that inpatient treatment is recommended.  Costs can range from $450.00 (for outpatient) – $3000.00 or more (for inpatient). Understandably, some cannot afford a premium private counseling center.  For those individuals, The Howard County Health Department’s Substance Abuse Service is a great option.  The Howard Health Department is the only publicly funded addictions, prevention and treatment program in Howard County that treats patients regardless of ability to pay. Fees for treatment at the Health Department are based on a sliding scale and the only requirement is residency in Howard County.  For non Howard County residence, each county in Maryland runs a similar service.   If charged with and DUI in Howard County along with finding the right legal counsel, counseling should be a top priority.

This article was written by David Zwanetz, Esq., Associate Attorney at the law firm of Shapiro & Mack.  David Z. also trains and competes in Brazilian Jiu Jitsu at Baltimore MMA school, Crazy 88 Brazilian Jiu Jitsu.

DONT LET THIS BE YOU!!!

By: David Zwanetz, Esq

“What should I do if I’m ever pulled over after having a few drinks?” This question ranks as number two of the top ten most frequently asked. Thus, I have decided to let my philosophy out of the bag. I want to preface this article by saying that I am by no means advocating drinking and driving. With that said, as a defense lawyer focusing on Howard County DUI law, I recognize that state DUI law is governed by a set of rules and regulations that should be, but are not, shared with the general public. This article is focused on the rules pertaining to the breath test and why those rules make consenting to a breath test such a terrible decision. The decision to consent or to refuse a breath test is the single most important decision when faced with potential DUI/DWI in Maryland. This tenuous area of law changed in January 2007, making it less advantageous, almost ludicrous, for anyone to ever take a breath test.

First things first, it is imperative to know that the result of a breath test is often used as the paramount evidence to illustrate a defendant’s level of intoxication. In order to lay a proper foundation of how all of this will play out, I must back up a bit. The breath test decision will likely be the second big decision you will have to make if stopped for an alleged drinking and driving offense. The first will be whether or not to consent to field sobriety tests. Just like you have seen on all the television shows, a suspect will get pulled over, the officer will ask for his or her license and registration, and then will ask him or her to step out of their vehicle. Once removed, they will inevitably be asked to submit to field sobriety tests. You know the tests I mean: walking the line, standing on one leg and counting to 10,000, following the pen with your eyes, reciting the alphabet in multiple languages backwards. To cut to the chase, my philosophy is simply to never consent to field sobriety tests. After all, no matter what your mental state, how do you think you would do? As part of the rules, you have the unbridled right to refuse field sobriety tests. In fact, unlike the breath test, there is no penalty for refusing the field sobriety tests. Thus, you can only hurt yourself by going through this dog and pony show. Think about it for a second, you get stopped by the police for suspicion of driving drunk, then the first thing you are asked to do is voluntarily submit to a series of extremely difficult physical demonstrations. The bottom line is that consenting to the field tests is a lose/lose situation. If you do well you can be accused of being an extreme alcoholic that can do difficult things even when drunk, and if you fail the result is clear. Remember, if one were pulled over for DUI and refused the field sobriety tests they may still be arrested on suspicion of dui. Clearly, however, suspicion is much better in court than confirmation of DUI.

Moving on, once stopped for alleged drinking and driving you will likely be arrested, brought back to the police station, and asked whether or not you will consent to a breath test. What should you do? I will simply lay out the rules of the game and the answer should be clear. First of all, without a breath test the State will be forced at trial to prove that you were impaired solely based on the police observations of you. Imagine if you refused field sobriety tests, as I recommended, (which again you can do with no penalty) and refused a breath test. There would simply be little to no evidence to present at trial to show that you were either intoxicated or impaired. Let me pose a hypothetical example: John Doe gets pulled over on a Friday night for speeding. Upon speaking with the police officer, alcohol is detected on Mr. Doe’s breath. Mr. Doe is removed from his car and asked to submit to field sobriety tests. He stops for a moment and thinks about David Zwanetz’s DUI article and decides to be politely uncooperative and refuse to submit to the field tests. Mr. Doe is swiftly arrested, brought back the police station, and asked to submit to the breath test. Thinking “what would Dave Z do?” he refuses the breath test as well. Now what evidence will the State have at trial? 1) Mr. Doe was speeding, 2) Mr. Doe smelled like alcohol. On these facts, at trial, the State would most likely be unable to prove beyond a reasonable doubt that Mr. Doe was either substantially or even slightly impaired. After all, Mr. Doe could surely smell like alcohol without actually consuming alcohol, and speeding is a relatively common offense that could surely be committed by a sober individual.

As I mentioned above, there is no penalty for refusing field sobriety tests, and therefore, no one should ever take them unless he or she is completely alcohol free. There is, however, a penalty for refusing a breath test. This penalty is the only reason why the question of whether or not to take the test is a question at all. Basically, if you refuse a breath test, the maximum criminal penalty you are facing can be increased. But, in order for there to be an enhanced criminal penalty there has to be a criminal conviction, which as I explained above is unlikely if one refuses the tests. Thus, the most worrisome penalty for most people comes not in District or Circuit Court but at the Motor Vehicle Administration. Interestingly, however, as of January 2007 the penalty for refusing a breath test so closely mirrors the penalty for taking the test and blowing a high result that there is simply no logical incentive to consent. Allow me to expand.

If charged with DUI/DWI in Howard County, Maryland, you would be facing both criminal and/or civil penalties. On the criminal end, you would be facing approximately one (1) year in jail and/or $1000.00 in fines. On the civil end, the MVA will conduct a hearing to decide what type of suspension, if any, to impose on your license. The level of suspension you would be facing would vary depending your choice of either taking or refusing the breath test. The penalty for refusing comes by way of the MVA possibly imposing a greater period of license suspension for a person that refuses to submit to a breath test. This is the legislature’s way of encouraging people to take the breath test, and conversely, punishing those who pull the carpet from under the feet of the State. Interestingly, however, in my opinion in January of 2007 the legislature made a major blunder. Below I have broken down the three possible MVA penalties in order to expose the flaw.

- On a first offense DUI/DWI, if you take the breath test and blow a .08 – .14 you could face up to 45 days of license suspension. That suspension can be modified to allow the suspended driver to go to and from work, school, alcohol counseling, and to any pre-planned doctor visits or to get meds.

- On a first offense DUI/DWI if you take the breath test a blow a .15 or above you are facing 90 days of suspension, which can only be modified by getting the ignition interlock system installed on your vehicle for 1 year.

- On a first offense DUI/DWI if you refuse a breath test you are facing 120 days of license suspension, which can only be modified by getting the ignition interlock installed on your vehicle for a period of 1 year.

Now do you see? The MVA/legislative penalty for taking a test and blowing a .15 or higher is almost exactly the same as refusing the test outright. Therefore, there is absolutely no logical incentive to take a breath test and give the Police and the State’s Attorneys the evidence they need to convict you. Additionally, everyone is entitled to a request an MVA hearing where an attorney like me can fight to prevent one from getting suspended at all. The long and short of it is that if your refuse both the field tests and the breath test you will most probably be acquitted in criminal court, where you are facing jail, but have to face minutely smaller penalties at the MVA. Would anyone choose possible jail over possible license suspension? I know I wouldn’t.

In my years of study I have always been fascinated with how little the general public knows about the very laws that govern their daily lives. I find nothing wrong with sharing the rules of the game, even if it means exposing flaws in the system. Unquestionably, with knowledge comes power and in no way do I intend to keep this power to myself.

This article was written by David Zwanetz, Esq., Associate Attorney at the law firm of Shapiro & Mack. David Z. also trains and competes in Brazilian Jiu Jitsu at Baltimore MMA school, Crazy 88 Brazilian Jiu Jitsu.