For the majority of current drunk or drugged driving offenders, the suspect is pulled over for a minor traffic infraction. They are then asked to perform tests and blow.
The officer approaches your car and gets your license and registration and returns to their car. Shortly later, they again come to your car and ask if you have been drinking or consumed any drugs. If you have consumed, you may be best to reply, "under the advise of my attorney, I respectfully refuse to answer."
Most likely, you will be asked to leave the car and perform three tests: the eye glare, the walk the straight line and the stand on one foot. The officer will then ask you to perform a roadside breath test. This roadside test is not admissible in Court.
If your arrested, you will be taken to the station and then asked to blow again. If you blow between a .08 and .14 then it's a 45 day suspension for the first offense and 90 days for each subsequent offense. This breath reading usually results in the person being charged with the criminal offense of driving while impaired by alcohol. A DWI carries a criminal penalty of 60 days in jail and/or a $500.00 fine. It also carries eight points on your driving record.
If you blow higher than a .15 your license is suspended for 90 days for the first offense and 180 days for a second or subsequent offense. This breath reading will result in you being charges with driving under the influence of alcohol. A first-time conviction of a DUI carries a criminal penalty of up to a year in jail and or/a $1,000.00. A subsequent offender faces enhanced MVA and criminal penalties. The MVA penalties are more stringent for CDL drivers.
If your a first time offender and you refuse the breath test your Maryland license will be suspended for 120 days. If your a repeat offender then your license is suspended for one year. If a jury finds that you avoided the test you can get another two months and/or $500.00 added to your jail sentence.
If you blow a .15 or higher or refuse the breath test, then you will have to enroll in the interlock program for one year, or you will not be able to legally drive in Maryland.
You must enroll in the interlock program within 30 days of the order of suspension and meet other criteria.
DWI AND DUI AND DRUGGED DRIVING BLOOD TESTS AND THE NEW SUPREME COURT RULING
It's not that uncommon for a person to be involved in a minor accident and charged with a DUI. Sometimes the impaired driver elects to go to the hospital and seek treatment because of injuries.
On April 17, 2013 the United States Supreme Court ruled in Missouri v. McNeely, that a blood test amounts to search under the 4th amendment of the U.S. Constitution. Therefore, a warrant is generally required before a police officer can draw the blood of a drunk or drugged driving suspect. A warrant isn't required only when there's no time to obtain one. In the world of cell phones and emails there is almost always time to obtain a warrant. At least that's the defense lawyers argument. Can you guess the State's?
To circumvent the warrant requirement, a police officer may ask the driver to voluntarily consent to a blood draw. Because alcohol dissolves in the body over time, this may be an unwise choice. Furthermore, if the person was intoxicated and consented to the blood draw, did they do so freely, voluntarily and knowingly? Again, this is room for your lawyer to make Constitutional arguments on your behalf before your case makes it to trial.
It should be noted that if the driver was taken to the hospital, the State will likely subpoena the hospital records to have the blood alcohol submitted to the court. Again, there are certain arguments your lawyer may make to have the hospital records excluded.
DRIVING TESTS WHEN THE NEW MARIJUANNA LAWS GO INTO EFFECT
On October 1, 2014, possession of less than 10 grams of marijuana will be a non-criminal offense. However, Maryland's Motor Vehicle Code and Criminal Laws prohibit driving while impaired by drugs and/or alcohol and driving while impaired by a controlled dangerous substance.
Currently, the State Police and other law enforcement agencies are increasing the training of their officers in order to have more drug recognition experts on their force. These DRE's are called in by the other officers to test the suspected driver. Quite often the DRE's assessment is subjective and open to aggressive cross examination by the defendant's lawyer.
As of this publication, Maryland has not decided on a legal limit of the amount of marijuana or nanograms of THC, one has in their system before they are presumed impaired. Although blood tests for THC have faced scrutiny, it would require the DRE to get a warrant for blood. This will add a layer of oversight for the DRE. Arguments can be made for and against whether Maryland should adopt a nanogram minimum.
ABOUT ME: Howard A. Brucker is a Maryland attorney located in Havre De Grace, Maryland. A former law clerk with the Cecil County State’s Attorney and the Delaware Department of Justice, Howard represents clients in all of Maryland Courts, including Harford, Cecil, Kent and Baltimore Counties. Howard offers free criminal consultations and accepts credit cards and payment plans. He can be reached at 443-418-6675 or howard@howwardbruckerlaw.com
Any reference to any cases referred to in this or any blog, which were handled by The Law Office of Howard A. Brucker, LLC would be considered an advertisement and does not guarantee future results.
