DWI and DUI

Published on: July 14, 2019

Nine Boating Under The Influence Arrests During Holiday

Nine recreational boaters were arrested for operating a vessel under the influence during the July 4^th 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 4^th 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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Published on: April 11, 2019

Legislative Session Ends Without Fireworks

By Benjamin Herbst

The 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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Published on: December 12, 2018

Holiday DUI Patrols Producing Arrests

By Benjamin Herbst

Holiday 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 4^th 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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Published on: September 15, 2018

What Happens After A DUI Charge?

By Benjamin Herbst

The 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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Published on: August 25, 2018

Baltimore Woman Arrested Twice For DUI On Same Day

By Benjamin Herbst

A Maryland State Police trooper arresting a driver for DUI on a Friday night in Baltimore County is hardly a newsworthy occurrence. But when the same trooper arrests the same driver for the same offense just two hours after the first traffic stop it has to make your head turn. The first arrest happened just after midnight on Route 40 in Rosedale, an area northeast of Baltimore City. This stretch of highway is a hot area for late night police patrols, and officers are especially keen to impaired driving. On this particular night a trooper observed a woman driving 67 in a posted 50 mph zone on Route 40 and allegedly passing another car on the shoulder. A traffic stop ensued and the officer arrested the 33-year old female driver for suspicion of DUI. The Baltimore woman was also issued a host of other citations including negligent driving, reckless driving, open container and driving off the roadway while passing another vehicle. As is typical for most DUI cases the woman was processed at the police station and released a couple hours after the initial stop. What is not typical is that the woman decided to return to her car and drive home that same night.

The state trooper working that evening likely had an idea that the woman he arrested was not finished driving for the night. According to reports he observed her get back in her vehicle that was parked on a side street off 40. Police could have had the vehicle towed but they did her a favor and left it parked, which in hindsight was not favor at all. The trooper followed the woman for a short distance and then initiated another traffic stop at 1:58 a.m., less than 2 hours after and 2 miles away from the first stop. The same signs of impairment were observed and the woman was again arrested and taken to the police station. This time she received additional citations for driving within 12 hours after an arrest for DUI or DWI and willfully disobeying a lawful order of a police officer. Driving within 12 hours of a drunk driving arrest is a jailable offense that carries a maximum penalty of 60 days, and while it’s not that common, it is definitely an offense that a judge will not take lightly.

The woman will be summoned to appear for trial sometime in the next couple months at the district court in Essex. She may chose to resolve her cases in district court or request a jury trial and have the case transferred to Towson. In this type of situation the defendant and her attorney will likely be better served by trying to have the cases consolidated to the same trial date, which the clerk’s office will likely do considering the arresting officer is the same. Assuming the cases are set for trial on the same day a good defense strategy would be to try to enter into a plea agreement on one of the cases in exchange for the State dismissing the other. If the State agrees to drop one of the cases it may turn out to be the first case, as it would be reasonable to expect the prosecution to be firm on the charge of driving within 12 hours after a DUI arrest.

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Published on: July 24, 2018

Baltimore Police Officer Charged With DUI

By Benjamin Herbst

Drunk driving charges have been filed against a Baltimore Police sergeant after he allegedly crashed an unmarked department vehicle into multiple parked cars. The incident occurred last weekend in the northeast part of the city not far from the site of the old Memorial Stadium. The sergeant is a 15-year veteran of the force, who is assigned to a new plainclothes unit sporting the nondescript title Anti-Crime Section. This undercover unit has been around since April, and is the first of its type since plainclothes units were disbanded following federal indictments of numerous members of the Gun Trace Taskforce. The charged officer is one of two sergeants on the plainclothes unit, which also includes 12 officers. Pursuant to department policy the sergeant has been suspended with pay while an internal investigation takes place.

The sergeant was not arrested and booked into jail, but rather was issued must appear citations. He will receive a summons to appear for trial, likely at the North Avenue District Court in Baltimore City sometime in the next few weeks. Most people who are arrested for DUI or DWI in Maryland are not actually booked into a jail, but rather are released to a friend or family member at the police station. This process typically takes a few hours, as the officer has to complete all the paperwork and inform the defendant of his or her rights with respect to the breathalyzer test. There are certain scenarios where a driver arrested for drunk driving could be booked into jail, but a polite and cooperative attitude will usually be enough to avoid this unfortunate outcome.

Like most first time offenders, the police officer will probably have an opportunity to receive probation before judgment or PBJ from the judge in district court. This of course depends on whether the officer’s attorney feels the state has enough evidence to prove the charges, and it is not clear whether the sergeant submitted to a breath test. The officer may elect to fight his case at trial, though this route should take the case downtown to the circuit court. It is extremely difficult to win a DUI trial in district court because you are relying on the judge alone to find the state has not met its burden of proof. Police officers typically have the most experience testifying in traffic cases, and in a district court trial they only need to convince one person (the judge) that the citations should stand. Contrast this with a jury trial where 12 citizens are scrutinizing each and every word coming from the state’s witnesses. Most jurors understand that even two sips of alcohol can be detected on a person’s breath, and that the roadside exercises are a ridiculous endeavor. Standing on one leg and walking heel to toe in a straight line are hardly an adequate means to test a person’s normal faculties. If you are charged with DUI or DWI (typically a person will be issued citations for both and an additional one for DUI per se if the breath results were above .08) do not hesitate to request a jury trial and transfer your case to circuit court. Making this request does not automatically mean your case will go to a jury trial, rather it simply means that this option will be available.

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Published on: June 30, 2018

Worcester County Tops At Proving DUI

By Benjamin Herbst

Just as the summer beach season began, Worcester County was honored for producing the highest conviction rate among all Maryland counties for DUI and DWI. The announcement came at a recent gathering for state prosecutors at an Ocean City hotel, which also hosts the annual bar convention. The average conviction rate for drunk driving statewide is about 78 percent, and Worcester County bested this number by a cool 13 percentage points to come in at 91 percent, meaning nine out of ten DUI arrests resulted in a conviction last year in the state’s eastern most county. Worcester is no stranger to a high drunk driving conviction rate, as the county has been tops in the state for 5 of the last 6 years. The State’s Attorney’s Office and the numerous police departments that patrol the county highways deserve much of the credit for the courtroom success, but there are other factors contributing to the unusually high conviction rate.

Worcester County is home to Maryland’s only beachfront resort, and thousands flock to Ocean City each summer to enjoy the sun, sand and plentiful nightlife. While Ocean City will never be confused with South Beach, it is one of the most popular summer destinations in the region and attracts out of state tourists from Pennsylvania, Washington D.C., Northern Virginia, West Virginia and Delaware. Many of these tourists come for mellow family vacations involving mini golf and boardwalk fries, but even more come to party. There is a lot of drinking each night in Ocean City, and unfortunately a lot of driving as well. Police are on high alert for drunk driving all summer long, and anyone pulled over driving at night in the area will immediately become a suspect. This is especially true for teenagers and young adults, and also those with out of state license plates. More drunk driving investigations does not always mean more convictions, but when it comes to younger defendants and out of state residents to odds increase for a conviction.

Out of state defendants are less likely to be versed in Maryland laws and more likely to try to resolve their case on the first trial date. Ocean City and Snow Hill are not exactly centrally located, thus out of state defendants are less inclined to request a jury trial and appear at numerous court hearings. Drunk driving trials are almost a foregone conclusion unless the cases is tried in front of a jury, as a judge will typically believe an officer who makes a determination that a driver is impaired. On the other hand, jurors are definitely more skeptical and require evidence in order to come back with a guilty verdict. It’s one thing to fight your case till the very end when the courthouse is around the corner, but it’s a different animal when court is a five-hour drive away.

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Published on: June 13, 2018

Police Ramping Up Eastern Shore Patrols

By Benjamin Herbst

Depending on where you live schools are either out or ending Friday, and the annual senior week pilgrimage to Ocean City is already underway. Pretty soon traffic will be piling up on Bay Bridge each weekend, and Route 50 will be jam packed with beachgoers. If you venture east not only will you be sharing the road with thousands of station wagons and SUVs filled to the brim with coolers and chairs, but also with state and local law enforcement. Maryland State Police have officially launched their “Lose the Booze” initiative for 2018, and are teaming up with local law enforcement on the Eastern Shore to combat underage drinking and DUI. The Easton Police Department, Talbot County Sheriff and Caroline County Sheriff have already joined the initiative, and other law enforcement agencies in the area will certainly be on high alert for all drug and alcohol related offenses.

Police on the Eastern Shore are notorious for making arrests on the few thoroughfares that head to Ocean City and the Delaware beaches. Route 50 is really the only direct way to Ocean City for beachgoers from Maryland, Washington D.C. and Virginia. Police patrolling 50, 301 and 404 will always profile a car full of young adults/ teenagers and look for any excuse to make a traffic stop to investigate further. Out of state license plates do not help the cause either. Pennsylvania vacationers avoid most of the Maryland highways on their way to the beach but their PA license plate still sticks out on Coastal Highway and other roads inland. Most of the time it’s speeding, but an officer who locks on to a car is legally permitted to make a stop for any type of traffic infraction, no matter how minor. Once the traffic stop begins the officer can then use his or her observations to develop probable cause for a search.

Upon making a traffic stop Eastern Shore police officers are immediately looking for signs of impairment. All police are trained to look for clues of DUI or DWI but officers in Ocean City and the surrounding areas almost expect it. This is especially true on weekends in the afternoon, evening, or even first thing in the morning for those drivers who have not quite slept it off. Cops that encounter teenagers or anyone that looks under the age of 21 will be on high alert for alcohol in the vehicle. Minors in possession of alcohol can be charged with a civil citation and face up to a $500 fine, which all minors in a car could be subject to if the alcohol is found in the passenger compartment.

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Published on: February 8, 2018

Drunk Driving Penalties May Increase

By Benjamin Herbst

Despite rarely appearing in statistical crime reports, drunk driving is one of the most common jailable offenses committed in Maryland each year. The number of yearly statewide drunk driving arrests is in the thousands, and hundreds of these are the direct result of an accident causing death or serious injury. The penalties for driving under the influence or while impaired are about average in relation to other states in the country, but in the last few years there has been legislation to make these penalties progressively harsher. Lawmakers recently added mandatory engine interlock in certain cases and increased the length of license suspensions for testing over the legal limit or for refusing the test. Despite the recent progress Annapolis lawmakers are far from finished, and will continue to modify drunk driving laws. This year a bill is on the table in both houses that may not come into play as often as mandatory interlock and long license suspensions, but it’s one that will send a clear message to repeat offenders.

While a first time offender can be sentenced to as much as a year in jail for committing a DUI it is still classified as a traffic offense, and even multiple convictions will not technically leave a person with a criminal record. As the laws are currently written in the transportation code the stiffest penalty for a drunk driving case is three years in jail, and this only applies on the third or subsequent conviction. There are other factors that may escalate the sentence such as drunk driving with a minor in the car, though even with enhancements a DUI or DWI is still considered a misdemeanor traffic offense regardless of how many times the defendant has been convicted. Maryland law does not allow for the expungement of a DUI or DWI even if the defendant has received a probation before judgment, so there will always be a record of a case where defendant pleads guilty or no contest. This is a harsh consequence, but based on the new bill it appears that Annapolis lawmakers believe simply being barred from expungement and increasing possible penalties is not enough of a deterrent to drive drunk.

If new bill ends up becoming law later this year it will take drunk driving laws to a new level, and one that many states currently have in place. The call from lawmakers is to classify a standard DUI or DWI charge as a felony with a 10-year maximum jail sentence and a possible $10,000 fine provided the defendant has certain prior convictions. Specifically the bill would establish that anyone with a prior conviction for vehicular homicide or manslaughter by vehicle or vessel is subject to being charged with a felony if they are arrested for drunk driving. This includes manslaughter from criminal negligence or gross negligence. It also could give the state the power to charge felony DUI if the defendant has three or more prior convictions. No other aggravating factors need to be present in order for these enhanced penalties to come into play, and the only requirement on the state to charge felony DUI would be that they notify the defense 5 days before trial in the district court and 15 days prior to trial in the circuit court.

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Published on: September 5, 2017

When Will A DUI Suspend My License?

By Benjamin Herbst

The two main concerns for anyone that is arrested for DUI are typically going to jail and losing the ability to drive legally. We touched on the likelihood for jail sentences in a previous post, so in this post we will stick to a discussion about the potential for dealing with a suspended license. It is important to understand that there are two different events that can result in a suspended license, and one generally has nothing to do with the other. The first event is the initial traffic stop where the officer will ask you to take a breathalyzer test to determine blood alcohol content or BAC. If you refuse to submit to the test then your license will automatically be suspended for 270 days for a first refusal and 2 years for a second or subsequent refusal. The suspension is administrative, and is initiated after the arresting officer submits an order of suspension to the driver, and forwards copies to the MVA. The suspensions were increased to these numbers in October of 2016 after the passage of the Drunk Driving Reduction Act.

The suspension for a refusal will actually go into effect after 45 days from the order of suspension, and you will be able to legally drive during this time. The paper order of suspension will serve as the temporary driver’s license. During these first 45 days defendants have three choices to make. First, they can elect to install the engine interlock device (also known as blow and go) in their car and then obtain a restricted license from the MVA. The restricted license will state that the driver is only allowed to drive a vehicle with the device, and for a refusal must be maintained for a minimum of one year. You can only obtain this type of restricted license after you present the MVA with a certificate of installation from the company that installed the interlock device in your car.

If you refuse the breathalyzer you also have the option of requesting a hearing in front of an administrative law judge. The hearing will take place at an MVA branch office or the OAH in Hunt Valley, Baltimore County. When dealing with a refusal case, a hearing officer may only uphold the suspension or reverse the suspension. They will not issue a restricted, work only license. The only realistic ways to win an administrative hearing are to prove that you didn’t refuse, or that the cop had no legal basis to request the test in the first place, and most hearings end up with the driver walking out disappointed, so think twice before requesting one. The third option for a driver that refuses the test is to accept the 9-month suspension. If the police did not confiscate your license you must turn it into the MVA or sign a form stating you lost it in order to get credit for serving the suspension.

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