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What You Should Know if You're Charged with Driving While Intoxicated
The laws in the U.S. and Maryland are becoming decidedly tougher. The Maryland General Assembly recently enacted laws which make it easier for prosecutors to obtain convictions while simultaneously stiffening penalties.
A law enforcement officer may stop and detain you if he or she reasonably suspects that you are operating your automobile while under the influence of alcohol. This suspicion or "probable cause" most often consists of the officer's direct observations of your driving. Should a police officer observe you violate any traffic law, for example, crossing lane markers, running a red light or speeding, you can expect to be detained. It is at this initial roadside encounter that the officer's observations may form the basis for probable cause. Nearly all drunk driving cases begin with the arresting officer noting "blood-shot eyes" or "a strong odor of alcohol."
At this point you may be asked to perform any number of field sobriety tests which are designed to assess whether your dexterity and faculties have been affected by alcohol. As you have the right to remain silent, you also have the right to refuse to perform the "one leg stand and touch your nose test" or the "recite the alphabet backwards starting with the letter q test." The officer also may suggest that you submit to a preliminary breath test. The PBT results may not be used against you in court. Therefore, it is generally advisable that you take this test since a favorable result may be introduced to show your innocence, while an adverse result is not admissible.
If your performance on the PBT and roadside tests does not relieve the officer of his suspicion that you were driving while intoxicated, you will be transported to the nearest police station where a breath test will be administered. The results of this test or your refusal to submit to the test are admissible as evidence against you. You have the right to refuse to submit to the test. Your refusal will result in an administrative suspension of driver's license. The suspension by the MVA is 120 days for a first offense and one year for all subsequent offenses. If you decline to take the test, you are ineligible for a restrictive license which would allow you to operate a vehicle to drive to and from work or alcohol education/rehabilitation classes. This provision is particularly important for firefighters to keep in mind in light of the requirement that they maintain a valid driver's license as a condition of their employment.
Should you choose to cooperate and submit to the breath test, you may still be subjected to administrative sanctions. If your test indicates an alcohol concentration of 0.10 (that is, grams of alcohol per 210 liters of breath) or more, your license will be suspended for 45 days for a first offense and 90 days for any subsequent offense. Because you did not refuse the test, however, you would remain eligible for a restricted license.
After many years of unsuccessful introduction, a law was passed which makes it a misdemeanor for a person to drive while "intoxicated per se." Effective October 1, 1995, a driver is "intoxicated per se" if the breath test results show a blood alcohol concentration of 0.10 or more.
Under current law, an alcohol concentration of 0.10 or more at the time of testing is prima facie evidence that the driver is guilty of driving while intoxicated. However current law also specifies that "evidence of the analysis does not limit the introduction of other evidence bearing upon whether the defendant was intoxicated." Accordingly, although a 0.10 reading raises a strong presumption that a person is guilty of DWI a court may find otherwise if it decides that other evidence indicates that the defendant was not intoxicated. For example, the court might find that a person who drove with a 0.10 concentration is an alcoholic with a high tolerance for alcohol who performed the roadside test fairly well and was not intoxicated, the breath test notwithstanding.
By making driving with a 0.10 alcohol concentration a per se offense, the legislature has mandated that the courts focus only upon the issue of whether a person has an certain level of alcohol concentration. The bill effectively prohibits the consideration of other factors that might be relevant to the issue of whether the defendant's functioning was impaired. The per se standard has not been extended to the crime of Driving While Under the Influence (DUI), where a blood alcohol concentration of 0.07 to less than 0.10 remains only prima facie evidence of a violation.
The criminal penalties for DUI and DWI remain unchanged. The maximum penalty for DUI is two months imprisonment and\or a $500 fine for a first conviction and one year and\or $500 for subsequent convictions. The maximum penalty for DWI remains one year and\or $1,000 for the first conviction, two years and\or $2,000 for a second conviction and three years and\or $3,000 for the third and any subsequent convictions. There is also a mandatory minimum penalty of 48 hours incarceration and 80 hours of community service for a second conviction within three years of the first.
The General Assembly enhanced the penalties for drunk driving while transporting a minor to include a fine of $2,000 and a prison sentence of two years for a first offense.
All alcohol-related convictions carry a possible second round of administrative penalties, distinct and separate from those mentioned above. A conviction for DWI results in a 12 point violation and revocation of driving privileges, while a DUI conviction carries 8 points and a likely suspension. These thresholds are extended (to 16 points for a suspension and 19 points for a revocation) if a licensee is required to drive a motor vehicle in the course of her regular employment.
Of course the best advice is not to drink and drive. However, if you are charged with an alcohol-related offense, it is important that you know your rights and that you have knowledgeable and effective representation. This article has summarized some of the recent developments in this area of the law. There is no substitute for personal counsel if you, a family member or a friend are charged with drunk driving or any other serious traffic offense.
