25 Things You Should Know from www.BerryEsq.com

Law Offices of Steven Gene Berry
25 THINGS YOU SHOULD KNOW ABOUT DUI/DWI LAW
E-mail: sgb@berryesq.com (301) 309-1918
A. LEGAL CONSEQUENCES FLOWING FROM THE BLOOD ALCOHOL TEST 1. If the result if a blood alcohol content of .08 or more, a driver is considered 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 blood alcohol content of .08 or more gives rise to a presumption that the driver was driving under the influence. 2. If the blood alcohol test result 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 .02, the result is prima facie evidence that the driving in violation of an alcohol restriction on their 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 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 or Driving Under the Influence Per Se (that is, DUI), 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 for not more than 1 year. A person cannot be punished if he or she is found guilty of both Driving Under the Influence and Driving Under the Influence Per Se. Instead, because these two statutes are different ways of stating the same offense, these 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 or both. For the purpose of the enhanced penalties statutory provisions, a prior conviction for Driving While Impaired (that is, DWI) within 5 years of a DUI conviction counts as a prior conviction. 9. The first time a driver is convicted of DWI, he or she 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 Driving While Impaired (DWI). If convicted of Driving While Impaired after having received a prior conviction for Driving Under the Influence or Driving While Impaired, 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 a DUI offense and, at the time of the incident, was transporting a minor she or 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 Driving Under the Influence or Driving Under the Influence Per within 5 years after a prior conviction, 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, he is subject to a mandatory minimum of not less than 10 days of imprisonment. 15. If a driver is found guilty of Driving Under the Influence or Driving While Impaired and the trier of fact (which can be either a judge or, if a jury trial is requested, 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 or Driving Under the Influence Per Se will result in the imposition of 12 points on your driver's record and a conviction of Driving While Impaired will result in the imposition of 8 points on your 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. 18. The MVA will take action to revoke the driver’s license of any driver who accumulates 12 points. 19. Points are accumulated on a driver’s record for a period of 2 years from the date of conviction. D. THE ADMINISTRATIVE PER SE PENALTY 20. If you have been stopped or detained and reasonable grounds exist to believe that you have 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 you were driving in violation of an alcohol restriction on your driver’s license, you are deemed to have consented to take a test to determine the alcohol, drug or controlled dangerous substance concentration in your body. 21. The result of an intoximeter or blood test may be admissible against you 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 you refuse to take an intoximeter or blood test, your refusal to take the test can be entered into evidence against you at trial as consciousness of guilt. 22. If you take the test and the result is a .08 or higher, the MVA will be notified of the test results, your driver’s license will be confiscated, an Order of Suspension will be issued, a temporary license valid for 45 days will be issued to you. An administrative suspension will be issued and your license will be suspended for 45 days for a first offense and 90 days for a second offense unless you request a hearing. If you request a hearing on the suspension, an administrative law judge may modify the suspension of your license or issue a restricted license to you. In addition, the administrative law judge may dismiss the MVA’s case against you depending upon the factual circumstances of your case. 23. If you refuse to take the test, the MVA will be notified of your refusal, your driver’s license will be confiscated, an Order of Suspension will be issued and a temporary license valid for 45 days will be issued to you. An administrative suspension will be issued and your license will be suspended for a period of 120 days for a first offense and 1 year for a second offense unless you request a hearing. If you request a hearing, your will ineligible for a modification of the suspension of your license or for issuance of a restricted license. However, the administrative law judge may still dismiss the MVA’s case against you depending upon the legal circumstances of your case. In addition, the administrative law judge has the discretion to issue a restrictive license to you if you agree to have an interlock ignition device installed in your automobile for a period of 1 year. Instead of requesting a hearing, you may elect to participate in the Ignition Interlock System Program for 1 year. If you so elect, you will be automatically eligible for the program unless 1) your driver's license is not currently suspended, 2) you were not charged with a moving violation in the same incident that resulted in serious injury or death to another person, 3) you so choose to elect within 30 days of date that the Order of Suspension was issued. 24. Your driver’s license or privilege will be suspended on the 46^th day after the date the Order of Suspension was issued unless you request a hearing within 30 days of the date of the Order of Suspension. You 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 your arrest for Driving Under the Influence/Driving Under the Influence Per Se. E. THE FIELD SOBRIETY TESTS 25. You are 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, these tests tend to be rather subjective. The fact that you refused to take these tests cannot be used against you at trial.