Common Defects in the States Case in Maryland DUI & DWI Cases

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cop dui.jpgWe handle civil litigation and criminal defense throughout Maryland, Virginia and Washington, D.C. One of our frequent endeavors is DUI and DWI defense. If a person is charged with a drinking and driving offense, trial will most likely be held at the District Court level. Portner & Shure's Maryland DUI lawyers are no strangers to Maryland courthouses. We consistently help our clients reach favorable outcomes because we require that the State put forth a case that meets the requirements of Maryland law and, if the State's case is without defect, we prepare our clients by walking them through the steps necessary to mitigate guilt.

Common Defects in the State's Case

1. The accused must be in "actual physical control" of a vehicle. If he or she is not then the State has not established one of the necessary elements. Factors used to determine whether someone is in "actual physical control" of a vehicle include the following:

  • Whether or not the engine is running or ignition is on
  • Where and in what position the person is found in the vehicle
  • Whether the person is asleep or awake
  • Where the vehicle's ignition key is located
  • Whether the vehicle's headlights are on
  • Whether the vehicle is on the roadway or legally parked

No one factor alone will necessarily be dispositive of whether the defendant was in "actual physical control" of the vehicle. Rather, each must be considered with an eye towards whether there is in fact present or imminent exercise of control over the vehicle or, instead, whether the vehicle is merely being used as a stationary shelter. Courts must in each case examine what the evidence showed the defendant was doing or had done, and whether these actions posed an imminent threat to the public. Perhaps the strongest factor is whether there is evidence that the defendant started or attempted to start the vehicle's engine.

2. The police must have a reasonable articulable suspicion that an offense occurred in order for a valid stop to occur and the investigative traffic seizure must be reasonable under all of the relevant circumstances. The reasonableness of a traffic seize is evaluated by: (a) whether the officer's action was justified at its inception, and (b) whether it was reasonably related in scope to the circumstances which justified the interference in the first place. Some specific stop issues include the following:

                                        Speeding - lack of proper foundation for evidence of speeding to be admitted into evidence

Illegal lane changing - in instances where the officer observes only a momentary and isolated movement into another lane or onto the should that observation may not be enough to validate a stop

Almost caused an accident - in order for the police to have a valid reason to pull you over the fact that you almost caused an accident must be accompanied by evidence of a traffic offense or reckless or negligent driving.

Brake light out - Where a vehicle has three rear brake lights and argument can be made that a stop is not valid if two of the three are functioning

Window tint - The office must be trained in recognizing the difference between illegal and legal tinting and issues can arise with tinting if the stop was made at night

Signal violations - a stop may not be valid if the accused fails to use a turn signal and no other vehicle is affected by the failure

Roadblocks - If the State fails to introduce the evidence relevant to the effectiveness and level of intrusion, or the State fails to establish that officers followed the regulations in place the sop is not valid

Jurisdiction - If a police officer observes a traffic offense out of his or her jurisdiction and makes the stop in that jurisdiction the stop may not be valid

3. The officer must have a reasonable articulable suspicion to believe the defendant may be impaired by alcohol before requiring the defendant to exit the car to perform standardized field sobriety test. If a reasonable articulable suspicion exists the officer must do the following:

  • Administer the tests in the prescribed standardized manner
  • Assess the suspects performance using standardized clues
  • Use standardized criteria to interpret the performance

4. The officer must advise the accused of the Advice of Right DR-15 form before administering a breathalyzer. If the officer advises the accused incorrectly or deviates substantively from the content of the form evidence of the refusal will be suppressed at trial. If the officer's failure to advise properly leads to no test being given then there is a presumption that the test would have been in the accused's favor.

5. The breath test must be administered within two hours of apprehension. If the test is not administered within the statutory requirement of two hours then the results of the breath test cannot be used as evidence at trial.

6. The officer must allow the accused to speak to an attorney if requested. If the officer does not allow the accused to speak to an attorney then the officer has violated that individual's 14th Amendment right to due process and 6th Amendment right to an attorney.

The large majority of Maryland DUI arrests comply with the requirements of Maryland law and the Constitution. The police officers and state troopers are generally well trained and comply with the required procedure. In instances where there are no defects in police procedure and the State has sufficient evidence to prove guilt beyond a reasonable doubt, the best approach may be to accept a plea offer from the State and take the steps necessary to obtain a probation before judgment. These steps include alcohol evaluation and treatment. In some egregious cases further steps must be taken to mitigate more serious violations.

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