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Articles Posted in DWI and DUI

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DUI4-300x300A former high-ranking officer with the Maryland Natural Resources Police has been found guilty of DUI and negligent driving after a plea agreement was reached in the District Court for Worcester County in Snow Hill.  The officer, who was second in command at the NRP, was granted probation before judgement for the DUI count, and received a conviction for the negligent driving count.  Pursuant to the plea agreement, the charges for leaving the scene of an accident with property damage and improper backing were dismissed by the State.  As part of the sentence the former decorated law enforcement officer will be required to complete 100 hours of community service and was placed on 2 years of unsupervised probation.  It appears as though the defendant already completed an alcohol education program, as that was not ordered during sentencing.

According to the facts presented at the plea agreement the former police officer was stopped at a red light near Ocean City when he proceeded to back into another vehicle.  In a regrettable decision, the defendant left the scene, and was later found parked in a lot near Route 113.  When troopers arrived, they detected an odor of an alcoholic beverage and began to administer standardized roadside sobriety exercises.  They soon after arrested the officer and issued him four citations.  By leaving the scene, the former officer was in violation of the Maryland Transportation Article section 20-103, which requires all persons involved in an accident to remain in the area of the accident until they have rendered reasonable aid and exchanged identifying information.  A violation of 20-103 is a misdemeanor punishable by up to 60 days in jail, but the State felt it was appropriate to dismiss this citation as part of the plea.  Instead, it appears they were insistent on prosecuting the negligent driving citation.  Negligent driving carries 1 point or 3 points if the act contributed to an accident, so the former officer will have at least 1 point assessed on his driving record.

Fortunately, the accident appeared to be minor and nobody was injured.  If there had been bodily injury the former officer could have been charged under 20-102, leaving the scene of an accident with bodily injury.  This offense is punishable by up to 1 year in jail unless the accident resulted in serious bodily injury or death.  Leaving the scene of an accident with serious bodily injury is a felony punishable by up to 5 years in prison, and if a death occurred the maximum penalty jumps to 10 years.  Under these enhanced penalties the state is required to prove the defendant knew or should have known the accident caused serious bodily injury or death.  Maryland is one of a few states that also criminalizes negligent driving without any proof of drug or alcohol impairment.  Almost all vehicle accidents that result in the death of an individual will be forwarded to the State’s Attorney’s Office for review.  If it appears that the at fault driver deviated from the normal standard of care that is expected when on the road, he or she could be charged with a misdemeanor offense of criminal negligence that carries up to 3 years in jail.  The penalty jumps to a 10-year felony  if there is evidence of gross negligence, which could mean racing or weaving in and out of traffic at a high rate of speed.  A defendant who is at fault for an accident involving death and leaves the scene could face punishment on both charges, as they are separate criminal acts.

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prison-300x201A Washington County man was recently sentenced to 10 years in prison followed by 5 years of probation after entering a plea to one count of manslaughter by vehicle in a grossly negligent manner.  The 30-year-old defendant was originally charged in the District Court with numerous traffic citations such as DUI, reckless driving and driving on a suspended/revoked license.  He was also charged with four criminal offenses included the criminal negligence and homicide by motor vehicle while under the influence of alcohol.  All of the citations and criminal charges were transferred to the Circuit Court after the State’s Attorney’s Office filed a criminal information about two months after the incident.

Under the Maryland Criminal Code, a charge of manslaughter by vehicle is defined as causing the death of another by driving or operating a vessel in a grossly negligent manner.  There is no requirement that the State prove the defendant was under the influence, though it almost always involves an element of drug or alcohol impairment.  The charge is a felony that carries a maximum penalty of 10 years in prison upon conviction, but the max becomes 15 years if the defendant has a prior conviction for a drug or alcohol related driving offense.  This penalty is significantly higher than the 5-year max for a conviction of homicide by motor vehicle or vessel while under the influence and the 3-year maximum sentence for manslaughter by criminal negligence.  It is no surprise that the State was firm on extending a plea offer that involved the gross negligence penalty, especially considering the defendant had a least two prior drunk driving cases and was driving on a revoked license.  The first took place back in 2013 when the defendant received probation before judgment for DUI.  Just three years later the defendant was convicted of DUI and received a jail sentence.

While a 10-year prison sentence may seem harsh for a crime that only carries a maximum penalty of 15 years, the defendant essentially pled guilty to a third DUI, which resulted the death of a young man.  According to comments made by the State and the judge at sentencing the family of the victim was in agreement with the sentence, which means the defendant likely would have received more time had the case proceeded to trial and resulted in a conviction for the top count.  Assuming the defendant did not have any additional criminal convictions, his guidelines were probably in the range of 5-10 years of active incarceration.  This means he received the top of the guidelines, though in cases like this the guidelines are not as influential on the state’s recommendation and ultimately the judge’s decision.  DUI manslaughter cases, and cases involving gross negligence or criminal negligence are some of the toughest cases to defend, prosecute and judge due to their tragic nature, but it appears all sides came to an agreement in this case.

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drink-driving-808790__340-300x200Impaired driving laws are constantly evolving in almost every state, and Maryland is no exception.  It seems that each year the legislature makes a firm commitment to steadily increase the potential punishments for drunk driving.  While many of these initiatives do not end up becoming law, they do garner a degree of attention from the media.  This in turn gets the message out to the public and provides a layer of deterrence, which is one of the main goals of lawmakers and anti DUI lobbyists.  In order to keep up, we feel it is important to provide our readers with an overview of the state drunk driving laws every couple of years.

The potential punishments for a first offense DUI and DWI have changed little in recent time.  In Maryland a person who is arrested for impaired driving will almost always be charged with both DUI and DWI.  While it is rarely brought up in court unless the case goes to jury trial, DWI is considered a lesser offense and as a result has a lower maximum penalty of 60 days in jail, a $500 fine and 8 points if there is a conviction.  Defendants who are charged with drunk driving and are seeking a plea deal should always inquire about the possibility of pleading to DWI in exchange for a dismissal of the DUI counts.  A defendant who submits to a breath test and is over the legal limit will likely not have this option, but it still does not hurt to try.  The maximum penalty for DUI and DUI per se is 1 year in jail, a $1,000 fine and 12 points upon conviction.  The per se count is charged as a result of a breath test that is over the legal limit of .08.

A defendant who is charged as a repeat offender faces far stricter penalties, as the maximum jail sentence for DUI with one prior conviction is 2 years, and for DWI is 1 year in jail.  The fines and license suspension times also increase and there is also the possibility of mandatory jail time if the prior offense occurred within 5 years of the current offense.  The punishments for a second offense have not changed in the past few years, but the legislature has addressed punishing those who have two or more prior convictions for DUI, DWI or other impaired driving offense in a different state.  Anyone with two prior convictions faces up to 5 years in prison upon being charged with either DWI or DUI.  Probation before judgment or PBJ does not count as a conviction under this provision.  A defendant with 3 prior convictions for drunk or impaired driving faces up to 10 years in prison upon being charged with a 4th DUI or DWI.  The 10-year maximum penalty also applies to anyone with a criminal conviction for homicide by vehicle or vessel while impaired or under the influence.  A defendant who has been convicted of causing life-threatening injury by motor vehicle or vessel while impaired or under the influence also faces up to 10 years in prison if subsequently charged with DUI or DWI.

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baltimore-1483757__480-300x200A Baltimore City Police officer was recently arrested and charged with drunk driving after he was found sleeping on the street outside of a convenience store.  According to the incident report the officer was found lying in a pool of his own vomit outside of his vehicle on Eastern Ave in Baltimore.  To make matters worse the defendant, who was off-duty at the time, told responding officers that his personal firearm was missing from the scene.  Police searched the vehicle and the area around the vehicle, but were unable to locate the missing handgun.  The officer now faces charges for driving while impaired and driving under the influence of alcohol, and has a trial date set in the North Avenue District Court in February.  It remains to be seen whether the officer will resolve his case at the District Court level, or request a jury trial that would transfer the case downtown to the Circuit Court for Baltimore City.  DUI carries a maximum penalty of 1 year in jail, which means the defendant has an absolute right to request a jury trial under Maryland law.  DWI carries a maximum penalty of 60 days incarceration, and thus is not an offense that affords a jury trial right.

Regardless of where the case is heard, the judge will not be pleased to find out that the officer had previously been charged with DUI back in 2018.  According to an incident report the officer, who was again off-duty, was pulled over after police responded to a call regarding individuals brandishing firearms at a club.  Police detected signs of impairment and the officer was administered a breathalyzer test at the station, which resulted in a reading of .10.  While this is clearly enough evidence to prosecute for DUI per se under Maryland law, the case ended up being dismissed by prosecutors in court.  The officer was also never identified as one of the individuals who allegedly brandished a gun, but two of his off-duty colleagues were identified and disciplined as a result of their involvement.  The officer, who currently lives in Howard County, avoided any major disciplinary consequences back in 2018, but he may not be so lucky in the present case.  If he enters a plea or is found guilty at trial the fact that he was so intoxicated that his handgun was lost or taken without his knowledge will certainly be a factor that the judge will consider at sentencing.  It is likely that a sentencing judge would consider this behavior even more reckless than a typical DUI, as it resulted in another illegal firearm being circulated on the streets of Baltimore.

The 28-year old city police officer has been placed on paid leave during the course of an internal investigation that will not be made public.  The results of the case will be public though, and it will be interesting to see how the state and the judge handle the case.  The public will certainly be watching, and so will the Blog.  We will post a follow-up article when the case is resolved, and comment on the outcome.  Benjamin Herbst is a Maryland criminal defense lawyer who specializes in DUI defense and other traffic charges such as leaving the scene of an accident, fleeing and eluding police, driving on a suspended license, reckless driving, driving without a license and federal traffic citations received on Maryland parkways or on federal property.  Benjamin also handles all criminal charges including wear, transport or carry of a handgun, and illegal possession of a firearm.  He is available 7-days a week for a free consultation and is licensed in Florida for those who have criminal or traffic cases in Miami-Dade, Broward or Palm Beach County.  Call Benjamin today at 410-207-2598 or 954-543-0305 to discuss your case and which defenses may be available to you.

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technology-2500010__480-300x200The U.S. Attorney’s Office recently announced that a 29-year old Baltimore County man has pled guilty to two felony charges in federal court, which stemmed from his use of a fake Secret Service badge.  According to facts presented in the plea agreement the Middle River resident was pulled over in Baltimore City by an MTA Police Officer for driving on a suspended license.  Upon being approached by the uniformed officer the defendant removed a law enforcement badge from his pocket and placed it in his lap, and then told the officer that he was a United States Secret Service Agent.  Rather than give him a pass and send him on his way, the officer become more suspicious of the defendant’s behavior, likely in part because he detected an odor of alcohol coming from the vehicle.  The driver was arrested and taken to the police station where he continued to maintain that he was a Secret Service Agent.  Police contacted the Secret Service, who unsurprisingly had no record of the man being employed in their agency or any other federal law enforcement agency.  Actual Secret Service agents made the trip to the police station to interview the defendant, who apparently admitted that the badge was fake.

Maryland Transportation Police originally charged the defendant with DUI and driving on a suspended license as well as multiple criminal violations.  The criminal charges included obstructing and hindering, resisting arrest, false statement to a law enforcement officer and impersonating an officer under public safety code section 3-502.  All of these charges were ultimately dismissed in the Baltimore City District Court, as the feds decided to prosecute the man for more serious offenses.  Further investigation into the defendant revealed that in addition to using the fake law enforcement badge to attempt to avoid being arrested, he had also posed as a federal agent on several other occasions to defraud at least 8 civilians from early 2017 to early 2019.  The plea agreement described numerous incidents where the defendant would use his fake law enforcement status to get free food and parking.  He also used his fake credentials to gain entry into people’s homes where he would steal their bank checks and credit cards and then go on spending sprees.  The total losses to the victims was more than $20,000.

The Baltimore County man is currently scheduled for sentencing in November, where he faces us to 10 years in prison for access device fraud under 18 U.S. Code section 1029.  He also faces a 2-year mandatory prison sentence for aggravated identity fraud, which will run consecutively to any sentence he receives on the access device fraud charge.  It will not be the first lengthy jail sentence for the defendant, as he was sentenced to 6 months in the Baltimore County Detention Center for unlawful taking of a motor vehicle in April of 2019.  The Blog will continue to follow this case and may post a follow up article in November after the sentencing hearing.  It is rare for a person to be charged in federal court for impersonating an officer, but this case clearly had much more going on than just a futile attempt to avoid a traffic citation.

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drink-driving-808790__340-300x200A former Washington County Circuit Court judge recently pled guilty to DUI and was sentenced to 30 days in jail at a recent court appearance in Frederick County. The judge is no stranger to appearing as a defendant, as he was also charged with DUI back in 2009. In the 2009 case the judge pled guilty and was sentenced to supervised probation, a sentence that was modified two years later to PBJ. The facts of the 2009 case were quite alarming, as the former judge was driving with a BAC of .18, more than twice the legal limit and considerably higher than the .15 threshold for enhanced penalties. In this case the judge sideswiped another vehicle at an intersection and injured the driver, and there was also a 3-year old passenger in the vehicle that luckily was uninjured. Needless to say when the judge appeared as a defendant for a second time last week he faced an uphill battle to avoid a jail sentence.

The defense likely requested a probation sentence, but this request fell on deaf ears. Instead of probation the former judge was immediately taken into custody to begin serving his month long sentence in the Frederick County Detention Center. An appeal to the circuit court was filed the same day, but the former judge remains in custody and will serve out the rest of his sentence after release was denied at his bail review hearing a week later. The former judge was not granted the benefit of probation before judgment, which means he will receive 12 points on his drivers license. He may face suspension or revocation unless a Frederick County Circuit Court judge decides to grant PBJ at his next court appearance in August, or down the road with a modification of sentence motion.

All district court judgments are subject to appeal in the circuit court, where the case starts over as if nothing ever happened. This de novo appeal process comes with a catch though; if a defendant is sentenced to jail or probation in the district court he or she will have to begin serving that sentence unless the judge specifically states the sentence will be stayed or continued. In cases where the defendant is jailed, there may be the possibility of posting a bail while the appeal is pending if the sentencing judge grants an appeal bond. The other option is to request a bail from the circuit court, which in this case proved unsuccessful.

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the-sea-1252182__480-300x200Nine recreational boaters were arrested for operating a vessel under the influence during the July 4th weekend according to the Maryland Natural Resources Police. The Natural Resources Police or NRP is the enforcement arm the Department of Natural Resources or DNR, and among other duties is responsible for patrolling the state’s hundreds of navigable waterways. They are especially busy during the summer months, with July 4th and Labor Day being perhaps the single two busiest days on the water each year. The main duty of NRP officers during these heightened times is to keep boat operators and their passengers safe out on the water, and boat safety checks are one of the most effective ways to achieve this goal. NRP officers conducted close to 2,000 safety checks over the holiday weekend and issued almost 700 citations for violations of the State Boat Act, which is part of the Waters section of the Natural Resources code.

If you are operating a vessel on a Maryland waterway during a holiday weekend there is a good chance you will be approached by an NRP officer for a safety check. Unlike a traffic stop on state roadways, boating officers do not need reasonable suspicion to approach a vessel to conduct a safety check. NRP officers can make close contact with vessel operators and their passengers at basically any time, and this contact can quickly turn into a criminal investigation.

During boat safety checks the officers will make sure the required safety equipment is present and that the number of occupants does not exceed Coast Guard limits, but the officers are always on the lookout for the possibility of drug use or an impaired operator. If an officer suspects that the operator is under the influence he or she may request the operator to submit to field sobriety exercises and a breath test similar to what occurs during a DUI investigation out on the road. A boat operator is not required to submit to a breath test unless there is an accident involving death or serious injury, but refusing could trigger a one-year suspension of operating privileges. The penalties for operating a vessel under the influence of alcohol or drugs are basically the same as the penalties for drunk driving. Boating under the influence of alcohol carries a 1-year maximum jail sentence and a $1,000 fine, while boating while impaired carries a 60-day jail sentence and a $500 fine. These citations are often accompanied by charges for operating a vessel in a reckless or dangerous manner. Unlike its traffic counterpart in the transportation code, under the Maryland boat law operating a vessel in a reckless or dangerous manner carries a potential 30-day jail sentence for a first offense and a 60-day sentence for a subsequent offense. These citations are criminal must appear citations, and failure to appear could trigger an arrest warrant. While a conviction for operating a vessel under the influence or reckless operation could result in a criminal record, they do not trigger driver’s license suspensions.

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annapolis-237078_960_720-300x195The 2019 Maryland legislative session has come to an end, and unlike previous years where marijuana was decriminalized or mandatory prison sentences for certain drug offenses were effectively discarded, there will be no drastic changes to the criminal code come October. While not headline makers, lawmakers did successfully address some minor offenses such as gambling and possession of alcohol, and changes are on the horizon. We previously wrote about a bill that proposed to decriminalize small time gambling, which in our opinion was long overdue. With state casinos booming, and sports betting on the verge of becoming legal in Maryland it really makes zero sense to impose criminal sanctions on citizens engaged in unlawful gambling. Both houses agreed and passed the bill that will now punish illegal gamblers with a civil citation and a fine, rather than a potential misdemeanor conviction and jail time. Anyone caught running an unauthorized casino or taking bets as a bookie still faces criminal liability, though lawmakers did away with the archaic 6-month mandatory minimum penalty. The maximum fine for civil gambling offenses will be $500 if less than $100 is at stake or $1,000 if more than $100 is at stake. Illegal gambling cases were not common to begin with, but now police will be even more motivated to look the other way.

Lawmakers also passed legislation that will make consumption of alcohol in public and possession of an open container a civil infraction rather than a criminal misdemeanor. The $100 fine will remain the same, but offenders no longer run the risk of a criminal conviction for drinking a beer, wine or liquor in public. This bill does not directly impact citations for minors in possession of alcohol, which will remain a civil infraction with a potential $500 fine for a first offense. Each of these civil infractions may be prosecuted by the local State’s Attorney’s Office, which is generally a good thing. The SAO has the ability to offer some sort of pre-trial diversion such as community service or alcohol education in exchange for a dismissal, while a district court judge has no such ability. The passage of this bill may affect the way open container violations are handled in local jurisdictions such as Ocean City. Previously public consumption or possession of an open container of alcohol was punishable by jail time in Ocean City, and police officers of this popular summer destination had the authority to arrest those, who for example were leaving Secrets with a drink in their hand. The Blog will pay attention to the local code to see if the city counsel is forced to make any changes to the existing laws regarding alcohol.

There was a lot of talk before the 2019 session began that the threshold of criminal possession of marijuana would be raised from 10 grams to one ounce (28 grams) but this change may not be on the immediate horizon. In addition to raising the lawful possession threshold, a Montgomery County lawmaker also proposed to allow adults over the age of 21 the right to use marijuana, to possess up to 5 grams of marijuana concentrates, and to cultivate up to 6 marijuana plants in their homes. The proposal was in the form of a constitutional amendment that would be put to a vote in this year’s general election.

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drink-driving-808790__340-300x200Holiday DUI patrols have been operational in Maryland for years, but until recently many of these enhanced law enforcement efforts have taken place on the Eastern Shore during the summer months. Memorial Day and Labor Day weekends along with July 4th have traditionally drawn the most attention of various police departments including the State Police. These law enforcement agencies run DUI checkpoints and deploy extra patrol officers during the nighttime hours in an effort to deter drunk driving and enforce the laws when the message doesn’t register. When a special holiday task force is operational it typically produces a greater number of arrests that a normal weekend, but this is expected as more law enforcement resources are in use. Before we begin a cost benefit analysis of drunk driving task forces, we’ll stop and say the purpose of this post is simply to point out that they are becoming more common throughout the state and coming to a county near you this holiday season.

Various law enforcement agencies in Montgomery County are about to begin their fifth weekend of the local DUI holiday task force, which has already produced close to 200 drunk driving arrests. This particular task force is made up of officers from the state and county police and the local police departments of Rockville, Gaithersburg and Takoma Park. Officers from the Maryland National Capital Park Police are also participating in the task force on the stretches of Montgomery County highway that are within the jurisdiction of federal law enforcement such as the Clara Barton Parkway. These agencies are not limiting their activity to standard proactive road patrols, rather they are also running sobriety checkpoints and compliance checks of local business that sell alcohol. Additionally law enforcement has also taken a more aggressive stance in issuing citations to adults that have allowed minors to consume alcohol on their property. Under Alex and Calvin’s law (section 10-119 of the criminal law code) adults who host parties where alcohol is served to minors face fines of up to $2,500 for a first offense and $5,000 for a second or subsequent offense. These citations are not considered criminal, but failure to pay could result in a criminal contempt charge that carries jail time. Additionally a conviction for one of these civil citations could become part of the permanent court record, which could lead to adverse consequences for the defendant.

Drunk driving has been an especially contentious issue in Montgomery County for the last few years, and for good reason. In 2015 a young law enforcement officer was killed by a repeat DUI offender, which led to the state enacting a law requiring installation of the interlock device for offenders. The engine interlock device is viewed as one of the most effective means to curtail impaired driving by lawmakers, prosecutors and judges alike. The device also spares defendants the possibility of losing their ability to drive, which in Maryland can be crippling due to the shortcomings of public transportation. The obvious downsides of the device are the high cost, frequent malfunctioning and embarrassing look, but most would agree that it’s worth it to be able to drive legally. The Montgomery County task force will continue to operate until January 5, 2019 and the Blog may post a follow up article after the final data on the program is released. If you or a loved one has been charged or arrested for any traffic offense in Maryland feel free to contact DUI lawyer Benjamin Herbst anytime for a free consultation. Benjamin specializes in representing out of state defendants, repeat offenders and drivers charged with federal DUI by the Park Police and other federal law enforcement agencies.

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drink-driving-808790_960_720-300x200The DUI laws in Maryland change almost every year, which makes it difficult for the average person to know what to expect in the days and weeks following an arrest.  This is especially true for out of state drivers from states such as Pennsylvania, Virginia, Delaware and others.  Two of the biggest questions after being arrested for DUI are going to jail and losing your license, so for this post we’ll focus on those two issues.

Will I go to jail if I’m arrested for DUI in Maryland?  First of all, the following paragraphs apply only to those defendants that intend to plead guilty.  If you believe you were wrongfully arrested you should certainly consider taking your case to trial (we always recommend a jury trial for DUI).  While no lawyer will ever be able to guarantee or predict a specific outcome it is extremely rare for a first offender to serve jail time for a first DWI or DUI.  This is true in all jurisdictions, including the federal courts that handle citations issued on certain federally maintained roads like the BW Parkway (295) and the Clara Barton Parkway, or on military bases like Fort Meade and Andrews. Unfortunately there are exceptions to this no jail for a first offense rule for cases involving injury accidents, extremely high BAC levels or not cooperating with police.

As for repeat offenders, the prospect of jail time increases depending on the number of priors and the time that has elapsed since the priors.  A defendant with one prior DUI that happened more than 5 years ago could certainly make a good case for a probation sentence, while a third time offender will have a more difficult time accomplishing this goal.   Maryland law imposes a mandatory 5-day sentence for a second DUI conviction within 5 years and a mandatory 10-day sentence for third conviction within 5 years of the last.  The best way to avoid jail time regardless of if you are a repeat offender is to be proactive, and show the judge this will never happen again.  We advise each of our clients to immediately seek out an alcohol education program, set up an evaluation and comply with any treatment recommendations.  You may not need counseling, but it will absolutely help in court and the judge will probably order it anyway.  After finishing the program be sure to obtain a certificate that you can present in court, and be ready to speak about your experience and answer any questions about what you learned.  An attorney can and should assist you in finding the right program.

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