The Maryland Court of Special Appeals ruled in Johnson v. State (1991) that this DOES NOT amount to double jeopardy. The bases of the MVA administrative hearing is to determine if the driver "broke his agreement" with the state when he was issued his license and agreed not to "drink and drive."

The drunk driver of the vehicle that hit the train stayed at the scene long enough for the police arrive. He told the police when asked that he was driving and he agreed to submit to field sobriety tests. He was found to be intoxicated, went to court and was convicted based upon his admission to the police and the subsequent field sobriety tests.

In the case of the defendant who hit a tree, left the scene and his car behind, jumped in a cab and went home to sleep it off. The next day when the police tracked him down by his license plate, he refused to talk to them without a lawyer present. He did not admit to driving, causing the accident, or to drinking. He was charged with leaving the scene of an accident involving property damage, but not DUI. When he went to court, the State could not prove he was driving that night and the defendant was acquitted. His only repercussion was the costs to get his car out of the Baltimore City yard.

I blogged about a case a few weeks ago that I got involved after the sentence had been imposed and tried unsuccessfully to reverse the damage. In that case the defendant did not get into an accident, blew a .16 and had only one prior occurring 11 years prior to the second. He received a sentence of 4 months to serve in the Baltimore City Jail after the case was badly mishandled by his attorney. I represented a similarly situated second offender in the exact same court last week with a completely different outcome. Here are the facts.

I recently got involved in a DUI case that was badly mishandled by another attorney in Baltimore City Circuit Court. Here are the facts:

As experienced Maryland DUI lawyers, we have found that in difficult cases, our clients often fair much better on appeal than in the original trial. This is usually due to the fact that the higher court is used to dealing with the most serious crimes and a DUI is, relatively speaking, not as serious as murders, rapes, and other crimes the higher court is accustomed to dealing with. It may also have something to do with the fact that delay is always a friend of the defense for several reasons.

The term "drive" as used in the Maryland drunk driver statutes means to drive, operate, move or be in actual physical control over a vehicle. This includes control over the steering of a vehicle that is being towed.

The seminal Maryland case on this issue is Atkinson v. State, 331 Md 199 (1993). In Atkinson, Maryland court of Appeals has determined that in situations where the driver is simply using his car for shelter until sober enough to drive, the driver can not be prosecuted for DUI. As long as the occupant is totally passive and has not made any attempts to actively control the vehicle. he is immune from a DUI prosecution in Maryland.

What constitutes "actual physical control" includes 1) whether the vehicle is legally parked or on a public roadway, 2) whether the vehicle's headlights are on, 3) whether the ignition is on and the engine is running, 4) whether the driver is awake, 5) where in the vehicle is the occupant (driver's seat or back seat makes a significance difference), and 6) the physical location of the ignition key.

Indeed at the time I was shocked at the level of incompetence of some of the attorneys. When I asked around, I found that many of these attorneys were domestic attorneys or had practices focusing on civil litigation. It seems that if one of their client's came to them charged with a criminal or serious traffic offense, they would simply handle the case themselves instead of referring the matter to a criminal attorney. As I said, I prosecuted cases against these attorneys on a daily basis for five years and the clients were usually not well served. I have made the same observations from the other side of the aisle in 12 years I have spent as a full time criminal attorney and I witnessed a particularly egregious example last week.

It is very easy for the police to prove a vehicle was in an accident. Often there are paint, blood or hair follicles that can be matched to the object or person hit. In cases where the vehicle is not ditched, police are often able to track down enough evidence to make a case against the owner/ driver. Sometimes the investigation takes days or weeks.

In these instances, however, it is almost impossible to prove the operator of the vehicle was impaired. This is because in order to convict a person of drunk driving, the police need to establish that the person was 1) behind the wheel, 2) had alcohol or drugs in his system, and 3) was above the Maryland legal limit of .08 or otherwise impaired.

The client was charged with a DWI/DUI about a year ago. This charge represented his first Maryland DWI/DUI offense. Prior to this situation, he had been represented by an attorney in a divorce case. He had never had the need for an attorney prior to his divorce, so this attorney was the only one that he knew. So when he was again in need of an attorney he did what most people in his situation would have. He called his divorce attorney. This attorney, of course, told him that in addition to being a divorce attorney, he was also a criminal/serious traffic attorney and was "more than qualified" to handle this case. While this statement was not an outright falsehood, ( according to Maryland Judiciary Case Search, this attorney handles roughly 20-25 criminal/ serious traffic cases per year) he is hardly a specialist.

Actually the case went back much further than last week and had in fact been postponed a number of times. I will get into the procedural background of the case shortly but first the facts: My client was driving his brand new Cadillac Escalade in Baltimore County one day last year. While admittedly driving approximately 50 mph in a 40mph zone my client claims he was clipped from behind by a as he began to negotiate a curve. According to my client, the car was tailgating him and when my client slowed down slightly to take the curve the car struck his rear bumper. This impact caused my client to lose control of the vehicle and strike telephone pole totalling the vehicle.

The primary reason that police officers ask suspects to perform these tests is to allow the officer to develop probable cause to arrest the suspect or at least take him or her into custody and charge them accordingly. The reason for this is that the smell of alcohol alone is not generally considered to be enough to establish probable cause. The police officer will typically run the suspect through the tests and based on his assessment of the person's performance, either take the person into custody or release him.

Offenders with two or more prior convictions, however, face almost certain incarceration if convicted in any jurisdiction in the state. As any experienced Maryland DUI/DWI lawyer will tell you, Harford County is among the strictest (if not the strictest) jurisdictions in Maryland for these types of cases which makes the risk even greater than if the offender were charged elsewhere.

This is especially true if the defendant took the breathalyzer and registered a reading of .08 or greater. This is because in Maryland, a person who is proven to have been operating a motor vehicle while having a blood alcohol content of .08 or greater is "per se" guilty of driving under the influence of alcohol. Even if the defendant didn't take the breathalyzer, however, most police officers write thorough enough reports detailing their observations of the defendant's performance on the field sobriety tests and conduct throughout the booking process, for the State to secure a conviction at least as to driving while impaired if not to driving while under the influence. We successfully defended a case in Howard County last month that presented this exact situation. Here are the facts:

By way of example, and I could offer many others, I was in Baltimore County District Court recently when I witnessed the shocking mishandling of a DUI/DWI case. The client was a second offender so the stakes were a little higher than for a first offender but the case was still very manageable if handled correctly. The attorney that handled the case, whom I will not name, was an attorney whom I know to be primarily a domestic and civil attorney. I watched in disbelief as he mishandled the case from beginning to end.