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The Law Office of Steven G. Berry | |
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25 THINGS YOU SHOULD KNOW ABOUT MARYLAND DRINKING AND DRIVING LAW
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e-Mail: sgb@BerryEsq.com Telephone: (301) 215-7753 |
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A. LEGAL CONSEQUENCES FLOWING FROM THE BLOOD ALCOHOL TEST 1. If the result of a blood alcohol content test is .08 or more, a driver is considered automatically to be under the influence when charged under the driving under the influence "per se" statute (that is, Section 21-902[a][2]) of the Annotated Code of Maryland, Traffic Article). If charged under the "original" driving under the influence statute (that is, Section 21-902[a][1]), a test result of .08 or more gives rise to a presumption that the driver was driving under the influence. 2. If the result of a blood alcohol test is more than .07 but less than .08, the result gives rise to a presumption that the driver was driving while impaired by alcohol (that is, Section 21-9029[b] of the Annotated Code of Maryland, Traffic Article). 3. If the test result is more than .05 but less than .07, the result does not give rise to a presumption that the driver either was or was not driving while impaired by alcohol. However, the driver may still be charged with and tried for driving while impaired based on the officer’s observations and the facts of the case. 4. If the test result is less than .05 or less, statutory law gives rise to a presumption that the driver was not under the influence of alcohol. 5. If the test result is more than .02, the result is prima facie evidence that the driver is driving in violation of an alcohol restriction, if any, on her/his license. For example, a driver who is younger than 21 years of age is not permitted to drive with a blood alcohol content of .02 or more. 6. Actual intoxication is not required and need not be proven if a driver refuses to take the blood alcohol test. Although the standard is and has always been kept vague, all that is required is a perceptible failure of normal coordination due to the ingestion of alcohol that affects your ability to drive. The Maryland Court of Appeals has held that the lack of a specific definition of the word "intoxicated" does not mean that 21-902(a) is unconstitutionally vague. Brooks v. State, 41 123, 395 A.2d 1224 (1979). B. STATUTORY PENALTIES FOR DUI/DWI OFFENSES 7. If found guilty of violating Driving Under the Influence (DUI) or Driving Under the Influence Per Se (DUI Per Se), a first time offender can be punished by a maximum fine of not more than $1,000.00 and/or a maximum term of imprisonment of not more than 1 year. A person cannot be punished if he or she is found guilty of both Driving Under the Influence (DUI) and Driving Under the Influence Per Se (DUI Per Se). Instead, because these two statutes are different ways of stating the same offense, the two charges will merge for the purpose of sentencing. 8. Enhanced penalties can be imposed on second and third time DUI offenders. A violation of the two DUI statutes (that is, the "original" and the "per se" statutes) is punishable on a second conviction by a fine of not more than $2,000.00 and/or by imprisonment for not more than 2 years. A third DUI conviction is punishable by a fine of not more than $3,000.00 and/or imprisonment for not more than 3 years. For the purpose of the enhanced penalties statutory provisions, a prior conviction for Driving While Impaired (DWI) within 5 years of a DUI conviction counts as a prior conviction. 9. The first time a driver is convicted of Driving While Impaired (DWI), s/he is punishable by a fine of not more than $500 and/or imprisonment for not more than 60 days. 10. An enhanced penalty can also be imposed for a second conviction of DWI. If convicted of DWI after having received a prior conviction for DUI or DWI, a driver is punishable by a maximum fine of not more than $500.00 and/or a maximum term of imprisonment of 1 year. 11. If a driver is found guilty of DUI and, at the time of the incident, was transporting a minor s/he is subject to a fine of not more than $2,000.00 and/or imprisonment for not more than two years for a first offense; a fine of not more than $3,000.00 and/or imprisonment for not more than three years for a second conviction; a fine of not more than $4,000.00 and/or imprisonment for not more than 4 years for a third conviction. 12. If a driver is found guilty of a violation of DWI and who, at the time of the offense was transporting a minor, is subject to a fine of not more than $1,000.00 and/or imprisonment for not more than 6 months for a first offense. For a second conviction of this offense, a driver is subject to a fine of not more than $2,000.00 and/or imprisonment for not more than 1 year. 13. For the purpose of second offender status regarding the enhanced penalties for transporting a minor mentioned above, any prior conviction of Driving Under the Influence, Driving Under the Influence Per Se or Driving While Impaired all count equally as a prior conviction. 14, If a driver is found guilty of DUI or DUI Per Se within 5 years after a prior conviction, s/he is subject to a mandatory minimum penalty of not less than 5 days of imprisonment. If a driver is found guilty of a DUI offense within 5 years of a second prior conviction, s/he is subject to a mandatory minimum of not less than 10 days of imprisonment. 15. If a driver is found guilty of DUI or DWI and the trier of fact (which can be either a judge or, if charged with DUI or DUI Per Se, a jury) finds beyond a reasonable doubt that the driver knowingly refused to take an intoximeter or blood test arising out of the incident, that driver is subject to an additional fine of $500.00 and an additional term of imprisonment for not more than 2 months. C. THE MOTOR VEHICLE ADMINISTRATION POINTS SYSTEM 16. A conviction of Driving Under the Influence (DUI) or Driving Under the Influence Per Se (DUI Per Se) will result in the imposition of 12 points on the driver's record and a conviction of Driving While Impaired will result in the imposition of 8 points on the driver's record. 17. The Maryland Motor Vehicle Administration (MVA) will take action to suspend the driver’s license of any driver who accumulates 8 points or more. The MVA will take action to revoke the driver’s license of any driver who accumulates 12 points or more. 18. Points are accumulated on a driver’s record for a period of 2 years from the date of conviction. 19. If the judge grants a defendant who has been charged with a DUI, DUI Per Se or DWI offense a probation before judgment disposition at sentencing, there will be no points assessed against that defendant by the MVA. D. THE ADMINISTRATIVE PER SE PENALTY 20. If a driver has been stopped or detained and reasonable grounds exist to believe that s/he has been driving or attempting to drive a motor vehicle while under the influence of alcohol, while impaired by alcohol, while impaired by drugs or by drugs and alcohol, while impaired by a controlled dangerous substance, or while s/he were driving in violation of an alcohol restriction on your driver’s license, the driver is deemed to have consented to take a test to determine the alcohol, drug or controlled dangerous substance concentration in her/his body. 21. The result of an intoximeter or blood test may be admissible against the driver in a subsequent criminal prosecution for Driving Under the Influence, Driving Under the Influence Per Se, Driving While Impaired or violation of an alcohol restriction. If the driver refuses to take an intoximeter or blood test, her/his refusal to take the test can be entered into evidence against her/him at trial as consciousness of guilt. 22. If the driver takes the test and the result is more than .08 but less than .15, the MVA will be notified of the test results, the driver’s license will be confiscated, an Order of Suspension will be issued, and a temporary license valid for 45 days will be issued. An administrative suspension will be issued and the driver's license automatically will be suspended for 45 days for a first offense and 90 days for a second offense unless the driver requests a hearing. If the driver requests a hearing, an administrative law judge may modify the period of suspension or issue a restricted license. In addition, the administrative law judge may dismiss the MVA’s case depending upon the factual and legal circumstances of the case. If the test result is .15 or more, the penalty is 90 days for a first offense and 180 days for a subsequent offense, but a driver has a test result of .15 or more is not eligible for a modification of the period of suspension and may not be issued a restricted driver’s license. 23. If a driver refuses to take the test, the MVA will be notified of the refusal, the driver’s license will be confiscated, an Order of Suspension will be issued and a temporary license valid for 45 days will be issued. An administrative suspension will be issued and the driver's license automatically will be suspended for a period of 120 days for a first offense and 1 year for a second offense unless the driver requests a hearing. If a hearing is requested, the driver will ineligible for a modification of the period of suspension or for issuance of a restricted license. However, the administrative law judge may dismiss the MVA’s case depending upon the and factual legal circumstances of the case. In addition, the administrative law judge has the discretion to issue a restrictive license to the driver if s/he agrees to have an interlock ignition device installed on her/his motor vehicle for a period of 1 year. Instead of requesting a hearing, a driver may elect to participate in the Ignition Interlock System Program for 1 year. If the driver so elects, s/he automatically will be eligible for the program unless 1) the driver's license is currently suspended, 2) the driver was not charged with a moving violation in the same incident that resulted in serious injury or death to another person, and 3) the driver fails to so elect within 30 days of date that the Order of Suspension was issued. 24. A driver’s license or privilege will be suspended on the 46th day after the date the Order of Suspension was issued unless the driver requests a hearing within 30 days of the date of the Order of Suspension. The driver must request a hearing within 10 days after the date that the Order of Suspension was issued to you to insure that your license is not suspended before your hearing, Therefore, always request a hearing on the Order of Suspension within 10 days of the date of arrest. E. THE FIELD SOBRIETY TESTS 25. A driver is under no legal obligation to take any of the field sobriety tests (such as the "walk & turn" test, the "one leg stand" test and the "eye nystagmus" test). Aside from the eye nystagmus test, none of the field sobriety tests have any scientific value whatsoever. Most police reports show drivers failing all of these tests miserably even when their blood alcohol content, as determined by a subsequent blood alcohol test, is quite low. Otherwise stated, field sobriety tests tend to be rather subjective in application. | |
