If You Are Arrested for Drinking and Driving Ask to Speak with Your Lawyer

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Whenever someone is arrested, as a general rule, that person should speak with an attorney. When you are placed under arrest your 6th Amendment right to a lawyer is triggered and someone who is detained by police should exercise it. I want to address how important this rule is when someone is arrested for drinking and driving. When the police confront someone who is drinking and driving they are required to perform several different tests, including field sobriety tests and a breathalyser or B.A.C. (Blood Alcohol Content) test, which are in themselves invasive and trigger certain constitutional rights. Interestingly, if you ask to speak to a lawyer before you decide whether or not to take a breathalyzer and your request is denied, it is not your 6th Amendment right to counsel that is violated. Instead, if the officer does not give you the opportunity to consult with your attorney, your 14th Amendment right to due process is violated. The reason due process is violated results from the affect that a refusal or the result of a breathalyzer will have on your ability to drive. Because the ability to drive affects an individual's employment, livelihood, etc., people confronted with the decision to take a breathalyzer must be given the opportunity to consult with an attorney if requested. Further, if the police officer denies a request to speak with a lawyer or improperly advises and, as a result, there is a refusal, there is a presumption that the result of the breath test would be in the accused favor.

Most people are familiar with what a breathalyser is and its purpose. However, the consequences of performing or refusing a breathalyzer in different circumstances are extremely confusing. Police officers may attempt to explain them to you and, if they advise you incorrectly or deviate substantively from the Advice of Rights DR-15 form, the results of the breathalyzer or the refusal can be suppressed at trial. If you ask to speak with your lawyer at this point and the cop says "why what is a lawyer going to do for you" or "you asking for a lawyer amounts to a refusal" the officer has made two huge mistakes because the officer has violated your 14th Amendment right to due precess and incorrectly advised you. At that point, at the very least, the police officer has compromised the state's case against you and provided an experienced Maryland DUI attorney with a strong defense to the charges against you.

At an MVA hearing, instead of focusing on a violation of constitutional rights, an experienced Maryland DUI attorney, will stress that his or her client was "improperly advised" and object to the MVA putting the DR-15 form and the result of the breathalyzer into evidence. At the conclusion of the MVA's case a motion for no action should be made. A motion for no action means that the MVA does not have sufficient evidence to show that you were intoxicated or that the refusal was invalid because the officer did not properly advise. If there is credible evidence that the accused was denied right to counsel or was improperly advised then the Administrative Law Judge will grant the motion for no action and your license will not be suspended . If you have been arrested for drinking and driving do not hesitate to contact the experienced DUI lawyers and DWI attorneys at Portner & Shure.

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