1. Contact alcohol counselor to set up evaluation and treatment. (List of Counselors enclosed).

2. Sign authorization for release of information with counselor and instruct counselor to send copies of evaluation and treatment plan to your attorney.

3. Respond to MVA Express office and get copy of complete driving record and send to attorney. (Copy can also be obtained on line http://mva.state.md.us/default.htm). There is a $10 charge and the record will be sent to the address that MVA has on file.

4. Prior to court or MVA hearing contact alcohol counselor for updated treatment summary. Instruct counselor to send/fax copy of update to our office and bring copy with you to MVA and court hearings.

5. If counselor has ordered AA or NA meetings procure attendance slips for all meetings and bring slips with you to all MVA and court hearings. If meetings will not provide attendance slips, create log of all meetings attended. Include date, time and location of meeting.

6. Bring copy of temporary driver’s license and all extensions of driving privilege with you to the MVA hearing.

7. Bring to MVA Hearing a letter from your employer indicating your need to continue to have a driver’s license as a condition of your employment.

8. Whenever a Summons is received for Court or MVA Hearing, immediately contact Sheila Englehart (senglehart@mdattorney.com) to advise of date of hearing.

-DUI: Under Maryland law, driving under the influence (DUI) can be proven by a test result of .08% alcohol or more or by evidence showing that the driver's normal coordination has been substantially impaired as a result of the consumption of alcohol. The maximum penalties are 1 year and $1000 for a first offense, 2 years and $2000 for a second offense, and 3 years and $3000 for a third offense. DUI also carries 12 points with the MVA and at a hearing the driver's license may be revoked.

-DWI: Driving while impaired (DWI), although a lesser offense under Maryland law, is still a serious crime and can be established by evidence showing that the driver's normal coordination was impaired to some extent as a result of the consumption of alcohol. This offense can be proved by evidence of a test result of .01% or more, but less than .08%. The maximum penalty is 60 days and $500 for a first offense and one year and $500 for a subsequent offense. DWI also carries 8 points with the MVA and at a hearing the driver's license may be suspended.

In many cases, a criminal defendant is charged with both DUI and DWI. A defendant, however, will only be penalised for one of the two offenses. In the event of a conviction for both offenses, the lessor charge DWI will merge into the higher offense (DUI). It should also be noted that in the event a defendant has prior offenses, the prosecutor may elect to seek enhanced or more severe penalties.

The offenses of driving under the influence (DUI) or driving while impaired (DWI) are two of the most common criminal charges faced by Maryland citizens every year. A DUI/DWI conviction can result in the loss of driving privileges, severe fines, and possibly imprisonment. Even the most responsible individuals are at risk of DUI/DWI charges when driving home after having only a couple of drinks. Facing drunk driving charges can be one of the most embarrassing and stressful times in a person’s life. The attorneys at Silverman, Thompson, Slutkin & White, L.L.C., are highly skilled and experienced in representing criminal defendants charged with DUI/DWI. The Firm actively and aggressively represents its clients faced with such charges by counseling each defendant through the criminal process, asserting and exercising all rights of the defendant that are available, and meticulously examining the factual scenario leading to the charges, to highlight a few of the legal services Silverman, Thompson, Slutkin & White provides to its clients in this area.

Please contact us for a free consultation.

Every DUI defendant who consults with our law firm is provided a list of court certified alcohol education and treatment facilities. It is recommended that the client schedule an immediate appointment, answer the evaluators questions honestly and follow the recommendations of the counselor. If a person is deemed to have an alcohol dependency, in-patient and out-patient options will be discussed. Most problem drinkers will benefit from an out-patient program which may span from 12-48 weeks. In-patient treatment referrals are common for egregious cases and repeat offenders. The length varies.

If a person does not appear to suffer from alcohol dependency, a 12 hour alcohol education program will likely be recommended.

Why do it:

1) Many judges want to see an alcohol evaluation prior to the disposition of the case. If a private evaluation has not been completed in advance, the client may be at the mercy (sometimes good, sometimes not so good) of a county employed evaluator. The evaluation is done on the spot.

2) Often a judge will be impressed that a person has taken the initiative to address the underlying reasons he/she was arrested for in the first place. This could mean the difference in jail/no jail or points/no points.

3) Even if you think your case is defensible, sometimes prosecutors will dismiss a flimsy case because the prosecutor is satisfied that at least the underlying alcohol problem is being addressed.

4) Finally, I have never seen someone hurt by seeking help. It could make the difference the next time you consider taking a drink, or are drinking alcohol and reach for the keys.

So the answer is an overwhelming yes. Private alcohol evaluations and treatment before court will help you and help your lawyer help you.

For more information on Maryland DUI, DWI or drunk driving defense, please contact us for a complimentary consultation.

I had a case in Baltimore County that presented this exact situation several months ago. My client was pulled over on I695 for speeding. He admitted to the officer that he had had 3 beers completing the last beer approximately 90 minutes prior to being stopped. He was asked to perform field sobriety tests and consented to do so. He believed that he had performed the tests virtually flawlessly but the State Trooper arrested him anyway. He was taken back to the State Police Barrack where he was read his rights and had the potential consequences of refusing to take the breath test or blowing over .08 explained to him. He initially said refused to consent to the breath test but then requested to use the telephone to contact his attorney.

My client then agreed to take the breathalyzer but when he accompanied the officer into the other room to do so, there was another officer there with another suspected drunk driver preparing to take the test. The police told my client that they (the police) essentially had a first come first served policy on the breathalyzer. My client protested pointing out that his time limit was about to expire and asked if the other person was up against the limit. He was told that in spite of the fact that the other person had more than an hour left before his time limit expired, he would still be allowed to go first. By the time the machine warmed up and the other driver was finished with the test, my client's time limit had expired and the police refused to allow him to take the test.

At both the MVA hearing as well as the trial, both judges found that my client's unequivocal withdrawal of his earlier refusal to consent was made with sufficient time remaining in the two hour time limit. Both judges also concluded that it was unreasonable for the police to make him wait in line behind another driver who had plenty of time left to take the test simply because the other driver had gotten there first. He was found not guilty at trial and no action was taken against his privilege to drive at the MVA hearing.

In Rowe, a Maryland State Trooper observed a van being driven in the slow lane of I-95, at about 1:00AM. The trooper followed the vehicle for a little over a mile, and in that span observed it cross over onto the right shoulder about 8 inches, touch the rumble strip, return to the slow lane, and cross over a second time. The trooper then initiated a traffic stop “for the benefit of the driver...because it was late in the evening.” Id. at 428. The officer determined that the driver was not intoxicated, but discovered that he was driving a rental vehicle with an expired rental contract. The officer then searched the vehicle and discovered marijuana, and was issued a warning for failure to drive in a single lane under Trans Art. § 21-309(b) . Suppression of this evidence based on an unlawful stop was denied in the trial court.

The Court of Appeals reversed the denial. The Court stated that “the petitioner’s momentary crossing of the edge line of the roadway and the later touching of that line did not amount to an unsafe lane change or unsafe entry onto the roadway, conduct prohibited by §21-309, and thus, cannot support a traffic stop in this case.” Id. at 441. The Court also stated that a lawful traffic stop may also rest upon reasonable, articulable suspicion, and stated: “A traffic stop may also be constitutionally permissible where the office has a reasonable belief that “criminal activity is afoot.” Whether probable cause or reasonable suspicion exists to justify a stop depends on the totality of the circumstances.” The Court did not determine that there was other reasonable suspicion.

For more information regarding probable cause to detain a motorist in a Maryland DUI/DWI stop, please contact Steve Silverman.

In cases involving motor vehicle accidents in which the suspected drunk driver is injured badly enough to require hospitalization, there is obviously not an opportunity for the investigating officer to request that the suspected drunk driver perform standardized field sobriety tests. In these cases the officer will typically speak to the driver and develop suspicion that the driver is impaired by alcohol based upon his observations. The officer will look for the smell of alcohol, blood shot eyes, slurred speech and other clues that the person is under the influence. If that suspicion is developed the officer will respond to the hospital and request that the driver submit to a test of his blood. The person my refuse to consent unless the accident caused death or life threatening injury, in which case he may be compelled to submit to a blood test.

If the person refuses, as did my client, the State will issue a subpoena ducas tecum for the person's medical records. In most cases the medical staff will have taken blood and analyzed it for a variety of things including the person's BAC. In my client's case that BAC level turned out to be .36. However, unlike in the cases where the person consented and the testing is done by the State Lab, the BAC level will carry with it no legal presumptions. It essentially has no meaning without the presence of an expert to explain the level to the court and to opine that a person with this level would be under the influence of alcohol and incapable of operating a motor vehicle. The State can also be required to produce the nurse or other "qualified person" who drew the defendant's blood as well as the custodian of the medical records. Producing these witnesses can be very difficult often making these cases difficult for the State to prove.

Today I had a similar case in the District Court for Baltimore City. My client had the misfortune of passing a late model Chevy Malibu at approximately 1:00 AM on Interstate 95 N. just South of the Harbor Tunnel. About the time he pulled even with the Malibu (doing approximately 85MPH) he realized that it was an undercover Maryland Transportation Authority Police car. He was then pulled over and ultimately arrested for DUI, speeding and negligent driving.

Luckily for my client, he was arrested by one of the few police agencies that utilizes dash board cameras in Maryland so that we were able see what actually happened. I don't necessarily think the officer was intentionally lying but I do think there is a lot of pressure on these officers to make DUI arrests. I also think there is a major flaw in the procedure that all of the police agencies that I deal utilize in DUI cases and that is that the officers do not take contemporaneous notes while the person is conducting the tests. Instead the officer writes the report an hour or more later when he gets back to the station and is then under the psychological pressure of justifying the arrest he just made.

In my career I have represented hundreds of people charged with DUI in Maryland and in only a very small fraction of those cases did I have the benefit of a video recording of the stop. I can't even count the number of times where there was no video and my client insisted that he or she had performed much better than the officer had indicated in his report. In the overwhelming majority of those cases, the officer's version was accepted by the court. It is my opinion that it is now time to require that all police vehicles in Maryland be equipped with dash board video cameras. In the digital age this would not be prohibitively expensive and would be invaluable to court's in determining precisely what happened not only in DUI cases but in many other serious matters that are adjudicated every day by the courts in Maryland.

So, when and under what circumstances are the police required to read a person their Miranda rights? Most people wrongly believe that as soon as a person is placed under arrest, which they almost invariably define as the point at which they are handcuffed, the police are required to read them thier Miranda Rights. Although this is the common procedure on television, it is simply not how it is done in the real world. The police are only required to read a person their Miranda Rights in the context of a custodial interrogation. That means that the person must both be under arrest (or at least in custody) AND be under interrogation by the police. A common question that I get from my clients in DUI/DWI cases is why are the State is allowed to use incriminating statements that they made to the police prior being read their rights.

I was presented with this exact situation in a case that I had in Baltimore County this week. My client had admitted to the officer that he had been at the Baltimore Raven's game and consumed 6 beers. He did reasonably well on the field sobriety tests and refused the breathalyzer. He was convinced that his admission to drinking six beers would be suppressed because the officer did not read him his Miranda Rights until he was arrested and taken back to the station. He was also convinced that he would be found not guilty without that statement. I told him that I agreed with him that were it not for the statement that he had a good shot at an acquittal but had to break the news to him that because he was not yet in custody that his statement would most certainly not be suppressed.

A particularly shocking example of this trend is the DUI/DWI case that I was hired for on Tuesday. The client was picked up for DUI/DWI on Sunday night. He allegedly made a right turn on red at an intersection where doing so was prohibited. He pulled over immediately and was totally cooperative and polite throughout the investigation. After not performing the field sobriety tests to the satisfaction of the officer he was arrested and taken to Central Booking. Sometime on Monday morning he saw a court commission who set his bail at $10,000.

At this point his wife attempted to post their home for the bail but was told by the commissioner that they had insufficient equity. The reason for this is that the court calculates the equity in a home by subtracting the outstanding mortgage from the tax assessment value of the home. The tax assessment value is almost always substantially less than the market value of the home.

When a person receives a DUI or DWI in Maryland, that person faces two possible suspensions of his or her driver's license. The person will first face a suspension of his driver's license, depending upon whether or not he took the breathalyzer. The defendant will also face suspension if he is ultimately convicted of the DUI or DWI when the matters proceeds to court. In addition to suspensions resulting from DWI's and DUI's a person may have his license suspended for several other reasons. By far the most frequent cause of a license suspension is that a person fails to appear in court for a minor traffic citation or fails to pay the fine after appearing. These so called "H" violations make up the vast majority of suspended license cases. A person may also have his privilege suspended or revoked due to an accumulation of points, for not paying child support, for receiving three moving violations within a a six month period, and for several other reasons.

I had a case this morning in which the state was unable to meet the notice requirement. In that case, the MVA did send notice to my client that they were suspending her for accumulation of points. However, that notice was returned by the post office. Once I pointed this out to the State's Attorney she did the right thing and dismissed the case. This was a very big thing for the client because not only was the state recommending 90 days in jail but she was on probation for driving while suspended which would have been violated had she been convicted.

While it was clear that the notice requirement was not met in my case today, it is not clear in every case that the notice requirement has not been met simply because the notice was returned by the postal authority. In my case the client had not moved in the last three years and the MVA had her correct address. Yet for some reason, as I said, the notice was returned. I have had many cases in which my client moved and failed to notify the MVA of his or her change of address. Failure to do so can prevent using the notice requirement as a defense under certain circumstances. In my case today, the client was only suspended for about 6 weeks when she was pulled over and received the driving while suspended citation. In cases in which a person was suspended for a long period of time, many courts will not allow a person to assert the lack of notice defense, citing case law that states that although the State must notify a defendant that he or she is suspended, this does not mean that a person can stick his or her head in the sand like an ostrich. This "ostrich defense" is usually is argued by the state in cases in which a person received a minor citation, failed to appear in court and simply forgot about it for an extended period of time. Many courts in this situation will rule that the defendant was certainly aware that he received the ticket and knew or should have known that if it was not taken care of his license would be suspended. The court will then conclude that these facts place the person on "constructive notice" of the suspension even if he or she was not on actual notice.

These are just a few examples of typical situations in which a Maryland DUI/DWI/Criminal Attorney can attack the notice requirement in driving while suspended cases. For whatever reason many attorneys fail to properly scrutinize the defendant's driving record for evidence (or lack thereof) of notice. The point that needs to be stressed here is that the notice requirement is an affirmative element of the case that the state must prove in order to gain a conviction. In many cases this element can be successfully attacked by an experienced and aggressive DUI/DWI/Criminal attorney who knows the law and knows what to look for.

Just about the first question people routinely ask me when they find out that I am an Aggressive DUI/DWI Attorney is should they or shouldn't they take the Breathalyzer if they are stopped by a police officer after they have been drinking. The answer to the question is somewhat more complicated than it used to be given recent changes in Maryland DUI/DWI law.

The reason that Constitutional defenses are really the only viable defenses these days in most DUI/DWI cases is that if a person is truly under the influence an experienced police officer is going to make observations about his or her appearance and demeanor as well as the person's physical and cognitive functioning and note these observations in his report. The officer will also request that the person perform standardized field sobriety tests which are the horizontal gaze nystagmus test, the one leg stand and the walk and turn. The officer will note the person's performance on these tests in his report as well and the combination of these observations is more often than not sufficient for the prosecution to gain a conviction of at least driving while impaired even if the person refuses to take the breathalyzer test. Incidentally, the fact that a person was offered the opportunity to take a test and refused that opportunity will be conveyed to the judge or the jury leading to an obviously negative inference. Given that in the absence of a Constitutional defense the person would likely be convicted anyway there was really no reason for a first offender to refuse the breathalyzer and thereby subject himself to the harsher administrative suspension for refusing the test.

After January, 1 2006 the answer to the question of whether or not a first offender should take the breathalzyer got slightly more complicated but my advice remains to go ahead and take it. The law changed on January 1, 2006 so that a person who registers a blood alcohol level of .15 or greater is now subject to a mandatory 90 day suspension with no work restricted license or a period of at least one year with the interlock device installed in his or her car. So the benefit to taking the test, at least in cases where the BAC is over .15 has been all but eliminated but on balance I still recommend to take it and hope for a reading of .14 or lower. Of course if a person knows that that his or her reading will exceed .14 my advice would be to go ahead and refuse and take a chance that the officer is inexperienced and writes a poor report.

My advice to repeat offenders is to say as little as possible, do not participate in the field sobriety test and do not take the breathalyzer to give the person every conceivable avenue to avoid a second or subsequent conviction which is likely to cause the person to serve a prison sentence and to lose his or her license for an extended period.

Most Maryland State Troopers, Maryland Transportation Authority and some other police units are equipped with dash board cameras that record the interaction between the police and the client to include the field sobriety tests. It is not all uncommon for the police to exaggerate poor performance by the client and be contradicted by the video-graphic evidence. If there does not appear to be either a Constitutional defense or a factual defense (or as a back up plan or plan b to a mediocre defense) repeat offenders can still avoid jail time by entering into long term in-patient treatment plans and taking other steps that can convince a court that the client is not likely to offend in the future.

The Baltimore-based lawyers of Silverman, Thompson, Slutkin & White are experienced at all facets of representing defendants charged with drunk driving in Maryland. Please contuct us for a free consultation.