September 2011 Archives

Recently, I represented a client who was facing multiple burglary charges in Prince George's County Circuit Court. He was arrested after the victim picked his photo out of a photo array. The materials provided to me by the State through discovery cast doubt on the reliability of the victim's pretrial identification of the suspect and the procedure used by the Prince George's County police.

The Constitutional right to due process forbids any pretrial identification procedure that is unnecessarily suggestive and conducive to irreparable mistaken identification. All lineups and showups must be conducted in a fair and impartial manner. Suggestivity is evaluated by courts under the totality of the circumstances surrounding the pretrial identification. Factors to be considered in evaluating the reliability of an identification are:

  • The witness's opportunity to view the criminal at the time of the crime
  • The witness's degree of attention
  • The accuracy of the witness's prior description of the criminal
  • The level of certainty demonstrated by the witness at the confrontation
  • The length of time between the crime and the confrontation
  • The corrupting effect of the suggestive identification

Yes. Individuals who have a commercial driver's license are governed by the guidelines of the Department of Transportation. Under Title 49 CFR Part 40 guidelines, a person who tests positive on a drug or alcohol test is required to have a substance abuse evaluation conducted by a substance abuse professional (SAP) and to follow the SAP's treatment recommendations.

The SAP is required to provide a comprehensive face-to-face assessment and clinical evaluation to determine what level of assistance the person needs in resolving problems associated with alcohol use.

Prior to the employee's return to safety-sensitive duties, DOT regulations require the SAP to perform a follow-up evaluation with the employee.

If you have a DUI and a commercial driver's license in Howard County, Maryland our DUI attorneys refer clients to Eileen Dewey at the Columbia Addictions Center who is trained and qualified in the SAP guidelines.

Before a Maryland or Virginia police officer pulls someone over for possibly DUI, he has been watching that driver closely. Specifically, the officer is trained to look for several clues. The clues are derived from the research of the National Highway Traffic Administration (NHTSA). A few of the clues drivers should be aware of include:

1. Effectuating an improper turn (turns with too large/small a radius)

2. Repeatedly crossing the double yellow line

3. Striking objects on the roadway

4. Excessive weaving or swerving between lanes, erratic driving

5. Driving too slow, below speed limit, or too fast

6. Stopping in a traffic lane without reason

7. Following too closely behind the vehicle in front

8. Braking vehicle in lane of travel erratically or without cause

9. Signaling inconsistent with driving actions

10. Driving with vehicle headlights off

After the officer pulls the driver over he his obviously looking for signs of alcohol use. Therefore, he will attempt to engage the driver in a dialogue in order to monitor speech pattern and to smell for alcohol. The officer will then note the drivers physical appearance, make note if the car smells like alcohol and look for any open containers.

Once you are in this position be polite and courteous. There's always the chance the officer will release the driver with a warning instead of going right to field sobriety tests, or asking the driver to come to the station for a Breathalyzer test.

In short, don't drive drunk. However, if you have had a bit to many,be aware of the ten things officers are looking for before they pull a driver over for drunk driving. Additionally, once you are pulled over be cooperative.

If you, a family member or someone you know has been convicted of driving under the influence or if you would like more information on automobile accidents, please visit us on the web at





DUI/DWI Walk-and-Turn Test

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walk and turn.bmpThe second test the officer will administer is the walk-and-turn test. The test conditions required are:

  • A designated straight line
  • A reasonably dry, hard, level, nonslippery surface
  • Sufficient room for the suspect to complete nine heel-to-toe steps

The subject is asked if they have a physical problems. Then the subject is instructed to stand with their left foot on the line, and to place their right foot directly in front of it, heel to toe. The suspect is instructed to hold that position while the officer gives instructions. Behavior during this period can be used to show impairment. One of the most common mistakes is beginning the test before instructed to do so. Like raising your hand in class before the teacher asks the question, this mistake is a clue of impairment. Before the test the officer will give the following instructions:

DUI/DWI One-Leg Stand Test

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one leg stand.bmpThe third test administered by the officer is the one-leg-stand test. This test requires a reasonably dry, hard, level, and nonslippery surface. The suspect is instructed to:

  • Stand with their feet together and arms at the side, until the instructions are complete
  • Raise either leg so their foot is six inches off the ground, keeping the foot parallel to the ground
  • Keep both legs straight and arms at their sides
  • Hold the position while counting out loud

The officer is required to time it for 30 seconds and to record clues if the subject:

  1.  Puts the foot down
  2.  Raises arms more than six inches from the side of the body in order to keep balance
  3.  Hops
  4.  Sways while balancing

DUI/DWI Horizontal Gaze Nystagmus Test

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hgn.bmpHorizontal gaze nystagmus is usually the first test administered when a driver is suspected of drinking and driving. Nystagmus is defined as an involuntary jerking of the eyes. Nystagmus is always present, to some degree, but it is far more noticeable when an individual has alcohol in his or her system. In order to administer the HGN test correctly, an officer must have the suspect stand with legs together and arms at the side. The officer should instruct the person to remove eyeglasses and inquire whether the person has contact lenses, a head injury or eye problems. The suspect must be instructed to follow the stimulus with their eyes only, keeping their head still. The stimulus is placed 12-15 inches in front of the person's face, and is moved back and forth in a number of passes. The first pass is to assess if the individual's eyes are tracking equally. The officer also holds the stimulus still to determine that both pupils are the same size. If the subject dose not show equal tracking or has differing pupil sizes there could be a medical problem.

The Truth About Maryland DUI/DWI Field Sobriety Tests

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During the 1970's and 1980's the NHTSA, with the help of psychologists and doctors developed three standardized tests for trained police officers to use in the field to determine whether to arrest or release drivers suspected of drunk driving. Those three tests are the horizontal gaze nystagmus (HGN), walk-and-turn, and one-leg stand. These tests are designed to be conducted in a standardized manner and interpreted using standardized clues. The horizontal gaze nystagmus has six clues and typically if a driver shows four or more of the six clues that is can be an indication that the driver has been drinking. The walk-and-turn test has eight clues and if a driver exhibits two or more of the eight clues that can be an indication that the driver is impaired. The one-leg stand has four clues and if a driver shows two our more clues that can be evidence that he or she is impaired. NHTSA, with the help of the International Association of Chiefs of Police (IACP), developed training programs and manuals for both instructors and students to learn how to properly administer standardized field sobriety tests. Police are taught to administer and interpret the tests in a standardized manner. Standardization of these tests is essential to their reliability, and the manual states that:

  • It is necessary to emphasize this validation applies only when:
  • The tests are administered in the prescribed manner
  • The standardized clues are used to assess the suspect's performance
  • The standardized criteria are employed to interpret that performance

If any one of the standardized field sobriety test elements is changed, the validity is compromised. Our job as Maryland DUI attorneys is to ensure that the police officer has been properly trained and administered the field sobriety tests correctly. The fundamentals of fairness an objectivity are essential when the Court decides a defendant's guilt or innocence. If you have been charged with a drinking and driving offense contact the Maryland DUI lawyers at Portner & Shure.

After a DUI charge Counseling is a Necessity

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If you are a defendant facing charges for DUI in Howard County, or DUI charges in Prince George's County or Montgomery County, you must show the District Court Judge that you have taken the matter seriously. Drinking while driving often occurs because a person has an underlying drinking problem or was not fully aware of all of the terrible consequences that can result from DUI. A way to handle both of these issues is seeking alcohol treatment at a Maryland certified alcohol treatment center. Sentencing before the District Court in Howard County often turns on what steps the defendant's charged with DUI has taken since the arrest. As a result, the DUI attorneys at Portner & Shure insist that all DUI clients be at least evaluated at an alcohol treatment center, and we stress that if classes are recommended they be completed prior to court.

Alcohol Evaluation and Treatment

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One of the most important steps someone accused with a DUI/DWI can take is getting evaluated by a Maryland Certified Alcohol Treatment Center. The evaluation helps the accused and the Court determine what type of treatment is necessary. The evaluation will typically suggest between twelve and twenty-six hours of alcohol treatment classes. All Maryland treatment providers begin with an initial evaluation where standardized tests are given to determine an abuse category. Abuse categories usually range from "social drinker" to "addict." Generally a "social drinker" will be recommended to complete twelve hours of alcohol treatment or education while an "addict" may be required to undergo open ended treatment. Maryland alcohol treatment providers can request patients to submit to random urinalysis and to participate in both group and individual counseling. Most treatment is done on a weekly basis in an outpatient capacity. In extremely serious cases inpatient care is required Defendants should try to complete all of the classes by the trial date if possible. This step is essential when negotiating the best possible plea agreement with the state's attorney. The Court looks favorably upon defendants who are proactive and confront their mistake with adequate counter measures. A first time DUI offender who accepts a plea offer will most likely be considered for a probation before judgment, which is not a conviction. Evaluation and enrollment in alcohol treatment classes help to ensure that the judge will give a probation before judgment disposition.

Serious DUI/DWI Cases

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Some DUI arrests are worse than others. In instances where the circumstances surrounding the arrest are more egregious than most the defendant must take steps to counteract his or her conduct. Some examples of factors that may make a DUI arrest more serious are:

  • Causing and accident
  • Injuring someone
  • Killing someone
  • Reckless or negligent driving
  • Excessive speed
  • Extremely high B.A.C. (Blood Alcohol Content)
  • Subsequent offense
  • Conduct during the traffic stop and arrest

Probation Before Judgment in DUI and DWI Cases

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Probation Before Judgment or PBJ under Criminal Procedure § 6-220 is not a conviction. A judge can grant this disposition to a defendant in a DUI case if appeal rights are waived, and there have been no prior DUI convictions withing ten years of the current guilty finding. The ten year period begins when the defendant was convicted or given a probation before judgement. Postponing sentencing to a date beyond the ten-year period will not help a defendant qualify for probation before judgement because the time period begins when the defendant pleads or is found guilty. A probation before judgment cannot be expunged.

Whether you have been pulled over by a Maryland State Trooper or a Howard County, Montgomery County, Baltimore County or Prince George's County Police Officer, the Maryland Court of Appeals has dictated six factors that officers should pay attention to when deciding whether to charge you with a DUI or DWI. Each of these factors pertains to the basic legal question, whether the person was in "actual physical control" of a vehicle. In other words the critical test is whether the intoxicated person was in control of an operable vehicle, and not necessarily driving. The case which sets forth the DUI factors for officers to follow is known as Atkinston v. State, 331 Md. 199 (1992). The six factors are as follows: