Articles Posted in DWI and DUI

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drink-driving-808790__340-300x200In 2016 Maryland lawmakers passed a law requiring anyone convicted of DUI or DWI to enroll in the engine interlock program.  The engine interlock program requires drivers to install a “blow and go” device on a vehicle they own or operate, obtain a restricted license and then successfully complete a 12-month term using the device without violation.   Testing over the limit or failing to keep the device calibrated often results in the MVA extending the program, and thus costing the driver more time and money.  The law had originally been designed to apply to all defendants found guilty of impaired driving, but at the last minute was modified to exclude those who were granted probation before judgment or PBJ.  PBJ allows a judge to sentence a defendant without imposing a permanent conviction and the resulting 8 or 12 points on the defendant’s driving record.  PBJ is granted in more than half of Maryland DUI and DWI cases that result in a plea or finding of guilt, and with over 10,000 drunk driving arrests per year thousands of defendants leave court without a judge ordering interlock.  Assuming the governor signs the bill into law, which at this point is a foregone conclusion, the interlock requirement will become law on October 1.

While the interlock requirement contained House Bill 105 will be celebrated by law enforcement and anti-drunk driving lobbyists alike, its impact may be overstated.  Most Maryland drivers who are arrested for DUI or DWI already face mandatory interlock installation before they ever set foot in a courthouse.  The MVA enforces an implied consent law to drug and alcohol testing.  Anyone with a Maryland driver’s license can look on the back of his or her license to see a sentence that reads “Driving in Maryland implies consent to chemical testing for intoxication as required by law. Longer license suspensions may result from refusal to be tested.”  Those who refuse to submit to a breath or blood test face an automatic 270-day license suspension that starts 46 days after the DUI arrest unless the driver enrolls in the interlock program.  Those who submit to the test and produce a reading of .08 or higher face a 180-day suspension unless interlock is elected.  There are a few exceptions to the general rule that all Maryland drivers who are charged with DUI or DWI must enroll in interlock.  The first exception is if the driver takes the test and scores over .08 and under .15.  These defendants may request a MVA hearing and petition for a restricted, work only license.  Assuming PBJ is granted, a defendant in this scenario may be able to completely avoid interlock.  The second exception is when a defendant tests under .08, or as is often the case with DUI drugs, tests .00.  These defendants could currently be found guilty but avoid interlock if they are granted PBJ.  In sum, the defendants who will be most impacted by the mandatory interlock law are those who don’t refuse and test less than .15.

With over 6,000 impaired driving accidents per year, it’s no wonder that Maryland lawmakers are pressing for harsher penalties for all DUI offenders and not just those who receive a conviction.  At the same time, the MVA already enforces strict interlock laws that drastically affect drivers before they are ever found guilty of impaired driving.  If you have been arrested for impaired driving contact Maryland DUI lawyer Benjamin Herbst anytime for a free consultation.  Benjamin specializes in federal DUI cases, repeat offenders and out of state defendants.  He has also successfully taken on numerous juvenile traffic offenses and other aggravated offenses such as DUI with a minor in vehicle, manslaughter by vehicle and DUI homicide.  Contact Benjamin anytime for a free consultation at 410-207-2598.  Additionally, if you have a drunk driving conviction that is more than 15 years old it may be eligible for expungement come October 1.  Contact us for details about expungements anytime, or if you have a question about breath test refusals and what to expect after being charged with DUI in Maryland.

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dui2-300x199The Maryland State Police recently announced that its troopers will be out in force this weekend as millions of motorists are expected to hit the road for holiday travel and celebrations.  All 23 trooper barracks from the Eastern Shore to Western Maryland will participate in the increased patrol effort, which is being funded in part by the Maryland Department of Transportation Motor Vehicle Administration’s Highway Safety Office.  The State Police will deploy specially trained troopers who have been taught to identify impaired drivers through the use of tactics such as driving pattern observation and deployment at strategic locations and times.  These troopers are part of the SPIDRE team that has been patrolling Maryland highways for over a decade.  SPIDRE stands for State Police Impaired Driving Reduction Effort, and it was created by a grant from MDOT with the goal of reducing alcohol related injuries and fatalities in Maryland.

Starting out in Western Maryland, the state police will be conducting high visibility enforcement along Interstate 68, which is a dangerous stretch of highway that runs through Cumberland and Frostburg.  The Frederick and Hagerstown state police barracks will focus their patrols on Interstate 70 in Washington County and Frederick County.  They will likely be joined by troopers from Howard County on parts of I-70.  Howard County troopers will also be patrolling highways 29, 32 and 100, which are heavily trafficked on all nights and weekends.  The Golden Ring Barrack will be out in force on the I-695 in Baltimore County.  We have handled dozens of DUI, leaving the scene of an accident and suspended license cases initiated by troopers from the Golden Ring Barrack.  These cases end up in the Essex, Catonsville and Towson District Courts, though we generally prefer to handle our cases in the Circuit Court for Baltimore County.

Troopers from the D.C. Metro area will also be out and about on Interstate 495, which has become notorious for serious injury accidents and even DUI manslaughter/ homicide by motor vehicle cases.  I-495 is narrow, curvy and heavily trafficked, which is a dangerous mix of variables.  Interstates 95 and 97 will also be points of emphasis for law enforcement, as will Route 50, which crosses through Anne Arundel County, Queen Anne’s County, Talbot County, Dorchester County, Wicomico County and Worcester County.  Southern Maryland jurisdictions including Charles County and St. Mary’s County will also have a heavy patrol presence along Route 301 and Route 5.

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cannabis-1418339__340-300x290The Montgomery County Council is determined to crack down on driving while impaired by cannabis, but the method by which to accomplish this goal is still in still very much up for debate.  This week members of the Montgomery County Council’s Public Safety Committee met to discuss the issue of marijuana induced impaired driving and the meeting offered some insight on the challenges facing police officers who are tasked with enforcing Maryland impaired driving laws. There is currently no valid scientific test for marijuana impairment that compares to a breathalyzer test, which is used to test blood alcohol content in DUI cases.  Alabama is apparently one of the only states in the country that employs court approved saliva tests for cannabis concentration.  Other states have been reluctant to use this questionable methodology due in part to THC being tracible for several weeks after ingestion.

Without a certified scientific test for cannabis concentration law enforcement officers must rely on their observations of the suspect to prove impairment to a judge or jury.  These include the driving pattern of the suspect, his or her statements and standard field sobriety exercise such as the HGN test, walk and turn and the one-legged stand.  Officers need to establish evidence of impairment before requesting participation in these exercises, and skilled criminal defense lawyers can often pick them apart if there is no corroborating evidence such as a scientific test or an admission by the suspect.  Still, county officials are determined to even the playing field through the use of “green labs” where law enforcement officers can hone their cannabis impairment recognition skills.

Montgomery County is home to the state’s only green lab, where volunteers ingest cannabis in a controlled environment at the county police department’s training academy.  The labs have been around for a few years after originally being proposed by a veteran traffic enforcement officer in 2017.  Since then, the department has hosted several sessions, which start with the volunteers smoking marijuana, vaping or consuming edibles and then transition to an observation and testing period.  There is no indication that the volunteers are asked to get behind the wheel of an automobile, and realistically this could only happen under extremely controlled circumstances in a closed area.  These precautions would likely limit the amount of usable data, as there is simply no way to simulate driving in actual traffic.  The labs likely offer police a glimpse of how a person under the influence of cannabis may look, sound and act, though how this translates to recognition of impairment is up for debate.

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alcohol-beer-197x300Most of the criminal justice bills that are either signed into law by the Governor or otherwise pass the General Assembly become law on October 1 each year.  The exceptions are major policy changes such as the legalization of marijuana, which typically are planned farther in advance.  Marijuana legalization stole all the headlines on July 1, but there were still a fair number of laws that went into effect last week.  One such law was a provision of the Natural Resources article, which adds enhanced punishments for boating under the influence (BUI) and in some cases for driving under the influence or driving while impaired.  The new law focuses on repeat offenders, but not in the traditional sense, as it aims to enhance the punishment for boating offenders with a record of drunk driving and driving offenders with a history of boating under the influence.

The State Boat Act already has provisions that punish repeat offenders; a first offense for boating under the influence carries up to 1 year in jail, while a second offense carries up to 2 years.  A third or subsequent conviction for BUI carries up 3 years in prison.  Boating while impaired, which is a lesser offense than boating under the influence carries a 60-day maximum sentence for a first conviction, and a 1-year maximum for a second or subsequent.  These penalties are similar to the drunk driving laws in transportation article 21-902.  The new Natural Resources Law will now count a defendant’s DUI or DWI convictions as prior offenses in impaired boating cases.  This means that a person with a prior drunk driving conviction could face up to 2 years in prison for a first boating under the influence charge.  The new law also allows the State to consider prior boating convictions under the State Boat Law when recommending a sentence for a DUI or DWI case.  Subsequent offender enhanced penalties for boating under the influence only apply if a defendant was convicted of the prior offense within the last 5 years, and probation before judgment (PBJ) does not count as a conviction.  Also, in order for the enhanced penalties to apply the State must provide notice to the defendant at least 30 days prior to trial of its intent to seek subsequent offender enhancements.

Natural resources offenses such as boating under the influence can lead to serious consequences including a permanent criminal conviction, jail time and the loss of one’s privilege to operate a vessel in Maryland.  Many boating offenses have extremely harsh consequences compared to similar traffic violations.  For example, a second offense for speeding on a state waterway can carry up to 30 days in jail.  Boating offenses involving alcohol or drugs are taken extremely seriously by the State and by judges, which makes it all the more important to retain an experienced lawyer before you go to court.  If you have been charged with BUI or any violation of the State Boat Act contact Maryland criminal defense lawyer Benjamin Herbst anytime at 410-207-2598.  Benjamin has successfully defended over 500 DUI, BUI and DWI charges and has the experience and dedication to fight for the best outcome in your case.  Benjamin has locations in Anne Arundel County and Baltimore City, and accepts cases in all jurisdictions in Maryland.  He has won DUI trials in Worcester County, which has the highest conviction rate in the state, as well as numerous other counties and is standing by to fight for you.  Benjamin is also an experienced federal DUI lawyer for those who have received citations on 295, Fort Meade and the various other parkways and military/federal installations in Maryland.  He represents adults and juveniles in all drug and alcohol violations including open container and public consumption citations, and also specializes in representing out of state defendants who are traveling through Maryland when stopped.

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465392_breathalyzer-300x243The Maryland DUI laws are constantly changing, which means they can be difficult to understand and almost overwhelming for those charged.  This is especially true for first time offenders who have never been through the criminal court system.  Most drivers who are arrested for DUI are released from the police station, but we are seeing more drivers booked into the local jails than ever before.  Either way, once the shock of being arrested and charged wares off, the stress of what lies ahead arrives.  The first thing to understand about a Maryland DUI is that each defendant is fighting two battles at the same time.  The most obvious battle is the court case, where a driver can face anywhere from three to more than ten citations in the District Court of Maryland.  This battle must be taken seriously, as the punishments requested by the State for drunk driving are increasing in severity.  All defendants in impaired driving cases are advised to retain a lawyer for the court case, but the more time sensitive battle may actually be with the MVA.  An experienced Maryland DUI lawyer can help with both the court case and the case with the MVA, but in this post we will focus solely on the immediate consequences regarding driving privileges after being charged with DUI.

The immediate consequences for a DUI arrest are much different for in-state drivers than out-of-state drivers.  First of all, the police do not have authority to confiscate a person’s out-of-state driver’s license, and the home state will not likely be notified of the charge until the case is over.  This means that an out-of-state driver arrested for DUI in Maryland will not have his or her license suspended until much later in the process, if ever.  On the other hand, an out-of-state driver may lose his or her privilege to drive lawfully in Maryland.  Out-of-state drivers who wish to stay here and drive lawfully must switch to a Maryland restricted license in order to drive legally after 45 days.  The firm specializes in representing out-of-state DUI cases, and we are happy to provide a more detailed explanation over the phone or in person.

Law enforcement will confiscate the licenses of Maryland residents arrested for DUI, and in exchange will provide a temporary license in the form of carbon copy paper.  This temporary license is good for 45 days, and during this time a defendant will have no driving restrictions.  The 45-day period is not a time to sit around though, as a driver will have a couple of options and a limited amount of time to decide what to do.  Those who refuse the breath test or who blow over a .15 will have to choose between not driving for 9 months or installing the interlock device in their car.  There is no wiggle room for the interlock requirement on a refusal or a high-test result, and prevailing at an administrative hearing is difficult.  The administrative law judge or ALJ does not have the authority to do anything but allow interlock provided there was a valid basis for the suspension in the first place.  An ALJ may allow drivers who must use a work vehicle to drive said work vehicle without the device as long as adequate proof is provided in advance.

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dui2-300x199Memorial Day weekend is the unofficial beginning of summer in Maryland’s only beach town, and like clockwork arrests involving alcohol related incidents in Ocean City are already starting to hit the news wires.  This past weekend a Pennsylvania woman was arrested and charged with twenty traffic violations for allegedly crashing into an Ocean City Fire Department truck and leaving the scene.  The accident occurred in the downtown area around 8:30 p.m. where numerous witnesses were present.  Those interviewed at the scene told police that a black sedan traveling above the speed limit pulled out in front of and hit a fire truck, and then continued traveling south on Philadelphia Ave.  The fire truck, which was responding to a gas leak, stopped immediately.  Police were able to locate the sedan and its driver, a 27-year-old from Lancaster, and placed her under arrest.  She was released from jail on a $5,000 bond, and now will face trial in August at the Ocean City District Court.

The female driver was hit with every possible citation including multiple serious traffic matters that carry a potential jail sentence.  She was charged with DUI, DWI and DUI per se, which means she submitted to the breath test and blew over the legal limit of .08.  DUI and DUI per se both carry a maximum penalty of 1 year in jail, compared to DWI, which carries a maximum sentence of 60 days in jail.  Other citations include negligent driving, reckless driving and failure to control speed to avoid a collision, which carry hefty fines and the possibility of points.  For failing to stop immediately, the out-of-state driver was also charged with multiple additional jailable offenses including failure to remain at the scene of an accident involving property damage and failing to render reasonable assistance after an accident.  The driver was also cited for making a false accident report and knowingly driving an uninsured vehicle, which surprisingly has a higher maximum penalty than hit and run cases involving property damage.  Under 17.107 of the Maryland Transportation Code, knowingly driving an uninsured vehicle carries up to 1 year in jail and a $1,000 fine.  A second or subsequent offense carries up to 2 years in prison.

It is common for a driver charged with DUI in Maryland to receive numerous citations, but twenty is about as high as we have seen.  Some police departments such as the Maryland State Police have a habit of charging a driver with reckless driving and negligent driving in most drunk driving arrests.  This is regardless of whether there was an accident.  While a person may be able to pre-pay some of these companion citations, it is not advisable to do so before the case goes to trial.  Paying a citation prior to court results in a guilty finding and points being assessed, when in reality the citation will likely be dismissed or nolle prossed by the State at trial.  Any driver who faces a DUI charge in Maryland should be proactive and complete certain tasks before court, but paying the infractions is not one of these tasks that will help.

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drink-driving-808790_960_720-300x200A 28-year-old Anne Arundel County man has been charged with multiple criminal violations in addition to being issued four traffic citations for allegedly causing a head-on collision in Lothian earlier this week.  The accident left three family members injured, including 15 and 9-year-old children.  According to Anne Arundel County Police all three of the occupants were treated for life-threatening injuries, while the defendant was uninjured in the crash.  Police investigation revealed that the defendant crossed the center line, which caused his Rav4 to strike a smaller Nissan Versa head on.  Another vehicle then crashed into the Nissan from the rear as a result of the sudden collision.  Police responded to the scene and began a criminal investigation after bystanders informed officers that the driver appeared to be under the influence of drugs or alcohol.  The driver then allegedly failed field sobriety tests and was placed under arrest for DUI.  He then agreed to submit to a blood alcohol concentration test at the station in lieu of submitting to a mandatory blood draw. The result of the breath test was .18, which is more than twice the legal limit.

In a normal Maryland DUI or DWI case the defendant is usually charged via citation and released to a friend or family member a short time later.  While police do have the authority to book a defendant into the jail for drunk driving, going to jail for a DUI charge in Maryland is rare outside of Baltimore City.  This case was far from normal due to the severity of the victim’s injuries, and the overall egregious nature of the defendant’s alleged actions.  Most people are aware that causing a death in a traffic accident or boat accident while under the influence can result in criminal charges for homicide by vehicle or vessel or manslaughter.  But the legislature also chose to criminalize causing a serious injury accident while under the influence.  Based on the totality of the circumstances, the defendant was booked and charged with this fairly new criminal violation under §3-211 of the Maryland Criminal Code.  This law makes it a criminal violation to cause life threatening injuries by a motor vehicle or vessel while under the influence of drugs or alcohol.  A first offense for this violation carries up to 3 years in prison for DUI and up to 2 years for DWI.  If a defendant has a prior conviction for impaired driving in Maryland or any other state, the maximum penalty would become 5 years in prison.  The defendant in this case was charged with 3 counts, though he can only be lawfully sentenced on one of the counts.  He was held without bail by the court commissioner and by a District Court judge the next day at bail review.  He is now being held at the Jennifer Road detention center awaiting his trial in March of next year.

Almost all drivers who are charged with drunk driving in Maryland are issued multiple citations, which can be confusing and stressful for someone with no experience dealing with this situation.  In reality, the officers are taught to issue multiple citations, typically for DUI, DWI and DUI pe se (if the defendant tested over the limit), because they do not know which of the counts the State’s Attorney will be able to prove at trial.  Regardless of the number of citations a driver receives in a drunk driving arrest, most will eventually be dismissed by the State at trial or pursuant to a plea.  If a plea agreement is reached, the defendant typically admits to one of the citations and maybe two if the driving pattern is especially alarming to the State.

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drink-driving-808790_960_720-300x200The installation of engine interlock devices on vehicles in Maryland has increased exponentially over the last decade, and they have been lauded as a highly effective means to reduce impaired driving.  Currently though, there have been no realistic attempts by the state to make these devices mandatory in all vehicles.  In fact, it would likely impossible for any state to require the use of these devices in vehicles.  There are myriad reasons why a state such as Maryland would find it impractical or even unconstitutional to implement mandatory interlock or related programs.  First, the state does not have the budget or the manpower to develop an enforceable program where drivers would be required to submit to an alcohol test before putting a vehicle in drive.  Aftermarket alcohol testing devices are not especially reliable, and there would have to be someone on the government side to enforce the installation and maintenance of these devices.  Requiring drivers to install and maintain these alcohol testing devices would create a major public outcry regarding the expense and the civil liberties implications.  On top of all of these issues, instituting a statewide testing program would have an undue burden on interstate commerce, and likely lead to the years of legal challenges.

As a result of these implementation issues, the only realistic way to mandate devices that monitor a driver for intoxication is to require the auto manufacturers to install them in the factory.  This may seem like a pipe dream, but decades ago it would have been hard to imagine that all cars new would have seatbelt monitoring systems and airbags.  The NHTSA is the administrative agency that sets the safety requirements for vehicles being sold in the United States, and they take recommendations from the NTSB.  The NTSB has made lobbying for alcohol devices a priority since 2012, and has continued to recommend new cars be manufactured with them.  Passive alcohol testing devices monitor drivers for signs of impairment such as swerving, drifting and even facial expressions and movements.  They are called passive devices because the driver does not actually do anything to activate the device such as blowing into a tube on an interlock device.  Passive devices are always functioning while the car is in operation, and have been researched by multiple auto manufacturers since 2008.  The technology currently exists to detect signs of impairment in drivers, but they are not be perfect and could likely be disabled by a mechanic if the owner was so inclined.  The mandate would only apply to newly manufactured vehicles based on the aforementioned difficulty and expense in installing after-market devices; it could pass muster in a civil liberties argument because the burden will be placed on auto manufacturers and not individual citizens.  The government would not be forcing individuals to be tested for impairment while driving, but rather saying if anyone wants to buy a new car, they will have to deal with the devices.

Nearly 43,000 people were killed on roads in the United States last year, and this alarming number continues to rise.  Roughly one quarter of these deaths are alcohol related, and the government believes each and every one of these are preventable.  As the technology continues to improve, the pressure will mount on the NHTSA to act.  Therefore, it is highly likely that within the next five years all new cars sold in the United States will have some sort of passive intoxication monitoring system.  The Blog will continue to follow this story and may post a follow up article in the future.  If you have a question about a DUI case, an MVA license suspension or the interlock device program feel free to call Maryland DUI lawyer Benjamin Herbst anytime for a free consultation.  Benjamin is an experienced criminal defense lawyer who specializes in traffic violations such as leaving the scene of an accident, fleeing or eluding, driving on suspended license and all drunk driving related matters.  He can also fight to have your bench warrant or arrest warrant recalled if you have missed court or violated your probation.  Call Benjamin anytime at 410-207-2598.

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793842_school_bus-300x224Maryland State Police troopers recently charged a Carroll County public school bus driver with DUI after her bus crashed into multiple telephone poles on Route 32.  Troopers responded to Bartholow Road in Eldersburg and observed such severe damage to the telephone poles that the road was forced to be shut down for roughly 9 hours.  According to reports the school bus drove off the roadway around 2 p.m., and police responded shortly thereafter.  Troopers allegedly observed signs of impairment on the driver that were consistent with recent consumption of alcohol or drugs, and later arrested her on charges of DUI and DWI.  Additional charges may be forthcoming pending the results of a blood analysis that was likely required by the officers.  There is no indication that the driver, a 54-year-old woman from Westminster, was injured, but it appears she was treated by medical personnel.  Reports stated the bus driver was in fact on her way to pick up children at one of the nearby schools, but law enforcement has not confirmed this as fact.  The two closest schools in the area are Eldersburg Elementary and Liberty High School.  At the time of this post the bus driver’s charges had not been released publicly, but she will likely face a host of traffic violations in addition to DUI and DWI, such as reckless driving and negligent driving.  If the results of the blood test reveal an alcohol concentration of .08 or higher the driver will be cited for DUI per se, which carries a 1-year maximum jail sentence and a $1,000 fine.

While there were no children on the bus at the time of the accident, this case will not sit well with the State if indeed there is sufficient evidence of impairment.  The bus driver does not appear to have a criminal record, but does have two prior convictions for driving on a suspended license.  One conviction was from Baltimore County in 2014, and the other from Carroll County in 2012.  If in fact the bus driver was heading to pick up children from school there is certainly going to be a great deal of public attention surrounding the case.  The Blog will certainly follow its progress, and may post a follow-up article in the future.  Obviously, the situation could have been drastically worse if children were in the bus, so the accident may have actually been a blessing.

If there had been children in the bus, the driver could have faced a host of other charges, including criminal charges, regardless of whether an accident occurred.  For starters she would have faced charges for driving while impaired (or under the influence) by alcohol or drugs while transporting a minor.  The maximum penalty for DUI while transporting a minor is up to 2 years in jail for a first offense, which is double the normal maximum penalty.  Repeat offenders face up to 3 years for a second offense and up to 4 years in prison for a third or subsequent offense.  Under Maryland law the maximum penalty for DWI while transporting a minor is up to 6 months in jail, which is three times the normal maximum penalty of 60 days.  The maximum penalties are much harsher, and the judges and the State will also take these cases far more seriously.  For this reason, it is important to retain an experienced Maryland DUI lawyer for your charge right away.  There are a host of things that a defendant can do prior to court to improve the outcome of the case, and it should start right away.  Benjamin specializes in DUI while transporting a minor, federal DUI, repeat offender cases, out-of-state defendants and minors charged with DUI, and has successfully defended numerous clients charged with these offenses.  Call Benjamin anytime for a free consultation at 410-207-2598 and learn what defenses may be available in your case.
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hammer-802296__480-300x225Can the State go to trial without the defendant being present in court?  Last month a Washington County man was convicted of possession with intent to distribute cocaine, and driving under the influence after a traffic stop in the early morning hours of April 8, 2021.  Normally this type of case would not be especially newsworthy for the Blog but for one glaring detail; the defendant was tried and convicted by a jury despite not being present in court.  In legal terms the defendant was tried in absentia, simply meaning he was absent from court but the judge decided to move forward with the case anyway.  The stop and the trial occurred in Cumberland County, Pennsylvania, which is just north of the man’s hometown of Hagerstown on Interstate 81.  According to a press release by the District Attorney’s Office the man was traveling southbound toward Maryland on I81 and nearly collided with a tractor trailer.  After making contact with the Hagerstown man, Troopers noticed marijuana in plain view in the vehicle and observed signs of impairment.  The defendant then allegedly admitted to drinking alcohol and smoking marijuana before driving.  Upon being arrested for DUI Troopers recovered a plastic bag with a white powdery substance that the defendant was trying to conceal in the front bumper of the vehicle.  Chemical analysis revealed that the substance was in fact cocaine, weighing nearly 75 grams.  The amount of cocaine apparently was enough for the jury to conclude that it was not for personal use, but rather that he possessed the drug with intent to distribute.  Sentencing is set for October 4 of this year, and it remains to be seen whether the defendant will show.

Although the defendant was arrested and prosecuted in Pennsylvania, the law regarding trials being held in absentia appear to be similar to the Maryland law.  We do not usually post about cases in other states, but the defendant does hail from Hagerstown and the trial brings up an interesting and rare issue.  Pursuant to Maryland Rule 4-231 a defendant in a criminal proceeding is entitled to be physically present in person at every stage of the case and trial.  The most common exceptions are during arguments over the law, or a when nolle prosequi or STET is entered.  The courts have been conducting remote hearings for more than two years, but at most hearings the judge reminds the defendant that he or she has a right to be physically present.  This is especially true for evidentiary hearings and plea hearings.  There is one more exception to this rule, and it is triggered when the defendant waives his or her appearance by being voluntarily absent from court after the proceeding has commenced or when the defendant engages in conduct that justifies exclusion from the court.  A defendant may also personally or through counsel waive the right to be present.  We have seen cases where defendants have been disruptive in court and then removed from the courtroom in the middle of a trial.  One particular case occurred in Florida, and the trial continued without the defendant even after the jury witnessed the outburst.  This is obviously a rare situation that all parties attempt to avoid, but it does happen.

The lawyers for this defendant in this Pennsylvania case likely attempted to postpone the trial or even withdraw from the case, but the State and the judge seemed to agree that moving the case along was in the best interest of justice.  It is not clear whether the defendant was absent for the entire case or just for the trial, but the language of the Maryland rule does appear to create somewhat of a murky issue by stating “after the proceeding has commenced”.  An argument could be made that the proceeding means the actual jury trial, and therefore a defendant’s presence cannot be waived by failing to appear at trial.  The Blog will continue to follow this case to see whether the defendant shows, and whether the sentence takes into account the defendant’s failure to appear.  It would likely be advisable for the defendant to show up for sentencing, as unlike during trial, a judge does have the ability to factor in failing to appear at sentencing.

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