These questions and answers are specific to cases arising in the state of Maryland. If you were arrested somewhere else, consult with a person who is knowledgeable about the procedures in that state.

My driving was fine, can the officer pull me over?

He did pull you over! The officer needs an articulable reasonable suspicion to believe you committed, were committing, or were about to commit, a crime. If the judge finds the officer did not have a basis to make the stop, that may be a defense in court. It is not a defense at Motor Vehicle Administration (MVA) hearings unless it can be shown that the officer was acting in bad faith.

What should I say if I'm stopped by a police officer and he asks me if I've been drinking?

You are not required to answer potentially incriminating questions. A polite "I would like to speak with an attorney before I answer any questions" is a good reply.

Do I have to take field sobriety tests?

A person who is stopped by police and is being investigated as a possible drunk driver does not have to submit to field sobriety tests. However, the officer will normally arrest someone who refuses to take field sobriety tests.

What is the purpose of the follow the penlight with the eyes test?

This is the horizontal gaze nystagmus (HGN) test. The officers are trained to detect the involuntary jerking of the eye, which may, among other causes, by caused by consumption of alcohol. If officers detect three clues in each eye, a lack of smooth pursuit, nystagmus at maximum deviation, and nystagmus prior to 45 degrees, they are trained to testify that it is likely the person was above a .08 body alcohol content (BAC). In Maryland, the legal effect of this test has pretty much been neutralized by two appellate decisions holding that the court can only accept the test to show the defendant had consumed alcohol.

I thought I did well on the field tests, why was I arrested?

If you really did do well on the field tests, this may be a defense at trial. In many cases, people misunderstand the directions or do not know what the officer is looking for. The field tests most commonly administered by officers are approved by the National Highway Traffic Safety Administration (NHTSA) for the investigation of drunk driving cases.

On the follow the penlight with the eyes test, the officer is looking for an involuntary jerking of the eyes. You cannot feel this.

On the one leg stand test, the officer is looking for putting the foot down before 30-1000, hopping, swaying, and raising the arms more than six inches.

On the walk and turn test, the officer is looking to see whether the person started before the instructions were complete, was unable to stand with one foot in front of the other while being instructed, failed to touch heel to toe on every step, failed to stay on the line, stopped walking, raised arms more than 6 inches, took the wrong number of steps, or turned improperly.

Should I agree to take a chemical test? What happens if I don't?

In Maryland, there are three possible results for a refusal to take the chemical test:

  1. Your driver's license will be suspended for 120 days for a first offense and one year for a subsequent offense.
  2. Instead of a license suspension, you may be allowed to drive if you install and maintain an interlock device on your car for at least one year.
  3. If you have a legal defense the result can in some cases be "no action."

Additionally, the Maryland Motor Vehicle Administration (MVA), maintains two driving records on all drivers, a semi-private complete driving record, and a private probation before judgment (PBJ) record. When a person refuses the test, all entries go on the complete driving record and may be picked up by insurance companies.

All entries relating to a first offense of submitting to the test go on the PBJ record and will not be picked up by any insurance company. The penalty for submitting to the test in Maryland and recording a test result of .08 and less than .15 is 45 days for a first offense and 90 days for a subsequent offense. On a first offense of .08 or more but less than .15, typically the person gets a work restricted license for 45 days. Additionally, the test result may constitute persuasive evidence of guilt at the court proceeding. The penalty for a test result of .15 or more is 90 days for a first offense and 180 days for a subsequent offense, but the person is not eligible for a work permit, only for a one year interlock.

On a first offense, it is probably better to submit to the test, since the 45 day work permit is a lesser penalty, the insurance company cannot find out about it, and the result in court as a first offender will not be overly harsh. On the other hand, if the person is a third or fourth offender or more, they may be better off refusing the test.

Do I have a right to an attorney before deciding whether to take a breath test?

The law on this varies from state to state. In Maryland, there is a right, if the person requests it, to consult with an attorney to decide whether to take or refuse the breath test for alcohol, so long as it does not interfere with or unreasonably delay the testing process. The test must be taken within two hours of apprehension.

However, this right does not necessarily exist on federal property in Maryland which is under the jurisdiction of the National Park Service and patrolled by the United States Park Police. Those areas are under the jurisdiction of the federal courts, and under the National Park Service Regulations a refusal is a crime punishable by up to 6 months in jail and a $5000 fine.

Can I elect a blood test instead of a breath test?

In Maryland, the driver has no choice as to the type of test to be taken. The test is the test of breath unless the driver is injured and taken to a hospital, is unconscious or incapable of refusing the test, or if the equipment for conducting a breath test is not available. Under those circumstances, the officer may direct medical personnel to withdraw a blood sample.

The officer never read me my rights, what can we do about it?

You probably were advised of your right to take or refuse a chemical test for alcohol and the penalties for failing or refusing the breath test. You are probably asking about a 5th Amendment "Miranda" warning about the right to remain silent and to have the assistance of a lawyer. Often, in drunk driving cases, they do not give that advice. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest.

Why did I receive more than one ticket charging me with drunk driving?

Maryland has five different offenses that fall within the generic term - drunk driving: driving while under the influence of alcohol because of substantial impairment of normal coordination, driving under the influence of alcohol per se because of a test result of .08 or more, driving while impaired by alcohol, driving while impaired by drugs, or drugs and alcohol, and driving while impaired by controlled dangerous substances. The pre-printed citations the officer carries to write tickets for these offenses require the officer to write separate tickets for each offense.

Why is the officer allowed to take my license if I'm presumed innocent?

The law is designed to get your attention by immediately confiscating licenses of alleged drunk drivers. This is not fair, but courts justify this by saying it is not punishment but is for the protection of the public. Unless your license or privilege to drive is already suspended, the officer will usually issue you a 45 day temporary license that allows you to drive prior to a hearing. The administrative license suspension proceeding has no bearing on the disposition of charges in court.

Can't I just represent myself? Why do I need a lawyer?

Abraham Lincoln once reportedly said, "A person who represents himself has a fool for a client." Although you can represent yourself, it is usually not a very good idea. The drunk driving area of the law is very complex and you need someone who knows all of the procedures and personnel involved in order to be able to get you the best possible result under your particular circumstances. Imagine playing a game of chess against a grandmaster without knowing the rules. You are not likely to do well.

How do I know if the lawyer I am considering hiring is really a good lawyer?

Unless you already know who you are going to hire, you should meet with a couple of lawyers, and should receive satisfactory answers to at least the following questions:

Are you going to take my case to trial, or do you intend to plead me guilty?

Does the fee include all the Motor Vehicle Administration (MVA) hearings, or is that a separate fee?

What kind of result can I expect and can you guarantee it?

What is the total fee? Are you willing to put me on a payment plan so I can afford your services? Are there any hidden costs? What are they?

A lawyer should present you with a written retainer agreement and should never guarantee you a result. Check the credentials of the lawyer you are considering. Is he experienced in drunk driving matters or is he just doing it because you are an old client of his firm? Does the lawyer have experience trying drunk driving cases or is he or she "a pleader"? Did he attend the continuing legal education seminar on drunk driving or did he teach it? If the lawyer says he or she does not handle MVA hearings because it will not affect the result there, you should seek a different lawyer.

When you finish meeting with the lawyer, you should feel confident in his or her ability to obtain the best possible result for you.

What will it cost to get a lawyer?

This often depends on the reputation and experience of the lawyer and by the geographic location. Some lawyers tend to charge low fees and handle a high volume of cases. Although the cost is low, many of them do not invest much time in the defense of those cases. Other lawyers charge more, often depending on the skill level, and are willing to appear in court and at administrative hearings as many times as is necessary to obtain the best possible result.

There is a large range in fees. Fees in drunk driving cases can range from $300 to as much as $10,000 or more. The fee may also vary by such other factors as the complexity of the case, whether expert witnesses will be needed, whether the client is a first or subsequent offender, and whether the lawyer will have to travel extensively to appear at the hearings. An experienced lawyer with a good reputation may charge as much as $6000 for a first offense. Often the lawyer will request a minimum payment of $3000 as an engagement fee, and ask the client to agree, in writing, to pay the balance in monthly installments of $250. A flat fee such as this covers all of the Motor Vehicle Administration hearings and all court appearances, including taking the case to trial in front of a judge or jury. If a lawyer tells you he will try to get you the best possible result for $300 you should get a second opinion.

What is the punishment for drunk driving?

Generally speaking, a conviction for a first offense may involve a fine, a license suspension or restriction, attendance at a DUI education course for a period of time, and supervised probation for one to three years. A short jail sentence may or may not be required; for a second or third offense, it often will. Additional punishment may involve community service, ignition interlock devices, AA meetings, and MADD victim impact meetings. On a second or subsequent offense, the MVA may seek to take the driver's license a second time, after the court proceeding is over, although the courts do not call this punishment. Many judges now impose jail time on a second offense. The range can be from one weekend to a couple of weeks in jail. A third conviction usually carries a significant jail sentence, with or without work release, and with supervised probation upon release.

What is a PBJ?

In Maryland, if a person has not been convicted of drunk driving within the previous ten years, the person is eligible for probation before judgment, informally called PBJ. A PBJ is exactly what it says, after the court finds the person guilty, the person is placed on probation before getting a judgment (or conviction) against them. If the probation is completed without any violations of probation, the person does not get the conviction, points are not assessed against the person, and the guilty finding does not show on the person's complete driving record. However, the PBJ does appear on a separate PBJ driving record, which is only available to the person, his or her lawyer, the courts, the prosecutors, and the police. So if the person receiving PBJ gets arrested for drunk driving a second time, the authorities will know about the PBJ. Also, although many lawyers will say that a PBJ is a good disposition, and it often is, A DUI ARREST THAT RESULTS IN PBJ CAN NEVER BE EXPUNGED.

It is my first offense, will I get a PBJ?

The answer to this question depends on what you do before trial to demonstrate a desire to learn about drunk driving, and whether you appear before a judge who gives PBJs. Generally, judges who give PBJs want to see first offenders get an alcohol evaluation to determine whether they are a social drinker or a problem drinker, and also to complete the recommended educational or treatment program. Some judges, generally in more rural counties where court dockets are not so congested, will impose a short jail sentence, one night to ten days, even on a first offender.

Can I get my DUI arrest records, court records, and MVA records expunged?

You can only get an expungement of DUI arrest records and court records if your court case result is a not guilty, a dismissal, a nolle prosequi, or a stet. If your case result is guilty and your receive either a conviction or a probation before judgment (PBJ) you can only get court records expunged if you get a pardon from the Governor. The Maryland Motor Vehicle Administration (MVA) does not expunge records of drunk driving convictions and PBJs.

Why should I take classes before I go to court if I am presumed innocent?

Yes, you are presumed innocent. But if after trial, the judge or jury finds you guilty, the sentencing proceeding follows, usually immediately. If you want the judge to give you a first offender break of PBJ or not impose a jail sentence if you are a subsequent offender, it is wise to do something before you get to court to convince the judge to impose the sentence you want.

Are there any defenses to drunk driving?

Yes. There are many defenses to drunk driving. There is an DUI Defense Outline and MVA Hearing Outline on this website. Attorney Leonard R. Stamm has written a book called Maryland DUI Law, which is published by the West legal publishing company.

Where can I find information about drunk driving?

The best course of action is to consult an experienced drunk driving lawyer. There is plenty of information on the internet, but much of it relates to other states. You can also go to a law library (at courthouses and law schools) and research DUI law. Most of the circuit court law libraries in Maryland maintain an up to date collection of course materials given in continuing legal education classes at the Maryland Institute for Continuing Education of Lawyers (MICPEL). (MICPEL is now out of business but the Maryland State Bar Association (MSBA) has taken over many of the classes.) These materials can also be purchased from the MSBA website.

What is the best way to get a free comprehensive legal consultation?

Greenbelt lawyer Leonard R. Stamm gives free legal consultations for cases in Maryland. The best way to arrange the consultation is to call 301-345-0122 at your earliest convenience or send an email to lstamm@lstamm.com, or koconnell@lstamm.com.

In what jurisdictions do Leonard R. Stamm practice?

Leonard R. Stamm represents individuals accused of crimes and traffic offenses in state and federal courts, throughout Maryland. He will represent you if your case is in any of the following counties and court locations: Montgomery (Rockville and Silver Spring), Prince George's (Upper Marlboro and Hyattsville), Howard (Ellicott City), Anne Arundel (Annapolis and Glen Burnie), Calvert (Prince Frederick), Charles (La Plata), St. Mary's (Leonardtown), Baltimore City (Patapsco, North Avenue, Wabash), Baltimore County (Owings Mills, Essex, Towson, Catonsville), Caroline (Denton), Frederick (Frederick), Kent (Chestertown), Queen Anne's (Centreville), Talbot (Easton), Dorchester (Cambridge), Wicomico (Salisbury), Somerset (Princess Anne), Worcester (Ocean City and Snow Hill), Cecil (Elkton), Allegany (Cumberland), Washington (Hagerstown), Garrett (Oakland), Carroll (Westminster), and Harford (Bel Air). The firm also handles federal cases in Greenbelt, Baltimore, Andrews Air Force Base, Aberdeen Proving Grounds, and Fort Detrick. Stamm handles appeals in the Maryland appellate courts, and is admitted to practice before the United States Supreme Court and the Fourth Circuit Court of Appeals in Richmond.

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Maryland DUI Law

Maryland DUI Law

(Vol. 8, Maryland Practice Series)
By: Leonard R. Stamm

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