The following are frequently asked and other important questions
relating to DWI in Maryland, along with answers.
"Blood Alcohol Concentration" or BAC is defined as:
- the number of grams of alcohol per 100 milliliters of
blood; or
- the number of grams of alcohol per 210 liters of breath
In Maryland it is illegal to operate a motor vehicle with a
BAC of .08 or more.
If a driver’s BAC is .08 or more the driver is per se under
the influence. However, if a driver’s BAC is .07 or above, it is
presumed that the driver was impaired. If the test result is
over .05 but less than .07, the test evidence is considered
neutral. If the test result is .05 or less, the driver is
presumed not to be under the influence of alcohol.
If a driver refuses the chemical test, or if the test doesn’t
come into evidence for some other reason, the State must prove
through other observational or testimonial evidence that the
driver was operating a motor vehicle while his normal
coordination was substantially impaired to prove DUI (driving
under the influence), or somewhat impaired to prove DWI (driving
while impaired).
Maryland has a two tier drunk driving statute, DUI and DWI.
Driving under the influence means that the driver was operating
a motor vehicle while his normal coordination was substantially
impaired. Driving while impaired is a lesser offense and means
that the driver was operating a motor vehicle while his normal
coordination was somewhat impaired. In addition, Maryland has a
DUI per se offense, meaning that the driver was operating a
motor vehicle with a BAC over .08. If the accused submits to a
breath test, and the reading is above .08, the officer will
often charge the defendant with all three offenses. The
pre-printed citations the officer carries to write tickets for
these offenses after October 1, 2001 require the officer to
write separate tickets for each offense. It is possible to be
found guilty of all three charges, but generally the lesser
offenses merge into the greater offense for sentencing purposes
and points will only be assessed for the greatest offense. It is
also possible to be found guilty of only one or two of the charges.
In order for the stop of a vehicle to be upheld in court, the
officer must have articulable reasonable suspicion to believe
the driver committed, was committing, or was about to commit, a
crime. If the judge finds the officer did not have a basis to
make the stop, then the driver may have a defense in court. It
is not a defense at Motor Vehicle Administration (MVA) hearings
unless the driver can prove the officer pulled the vehicle over
in bad faith.
If an officer gets a statement concerning the number of
drinks consumed, then it must be put in context with the time
frame they were consumed in, as well as with the height, weight
and gender of the defendant. Oftentimes, a toxicologist can be
helpful as an expert witness to testify as to what BAC level a
defendant should have been at based on these factors.
Yes. A person who is stopped by police and is being
investigated as a possible drunk driver does not have to submit
to field sobriety tests. However, the officer will normally
arrest someone who refuses the field sobriety tests.
Yes, with two exceptions. If a person is involved in a fatal
accident or an accident involving a life threatening injury, and
the officer has reasonable grounds to believe the driver was
impaired, the person shall be required to submit to a test. And
on federal property in Maryland, which is under the jurisdiction
of the National Park Service and patrolled by the United States
Park Police, under the National Park Service Regulations a
refusal is a crime punishable by up to 6 months in jail and a
$5000 fine.
To answer this question, several factors must be weighed.
Under Maryland’s implied consent law, if a driver blows over a
.08 or refuses the test he/she is facing a suspension of his/her
driving privileges. (Any driver who refuses a test or blows over
a .08 should fill out the hearing request form on the back of
the officer’s certification and request a hearing within ten
days.) A refusal hearing may have three possible outcomes:
- A license suspension for 120 days for a first offense
and one year for a subsequent offense.
- Instead of a license suspension, the judge may allow you
to install and maintain an interlock device on your car
for at least one year.
- If you have a legal defense the result can in some cases
be "no action."
On the other hand, the penalty for submitting to the test in
Maryland and recording a test result of .08 or more is a 45 day
suspension for a first offense and a 90 day suspension for a
subsequent offense. On a first offense, typically the person
gets a restricted license to drive to and from work or any
alcohol class for the 45 days. Also, the test result may
constitute persuasive evidence of guilt at the court proceeding.
The Maryland Motor Vehicle Administration (MVA), maintains two
driving records on all drivers, a semi-private complete driving
record, and a private probation before judgment (PBJ) record.
When a person refuses the test, all entries go on the complete
driving record and may be picked up by insurance companies. All
entries relating to a first blow of over .08 go on the PBJ
record and will probably not be picked up by any insurance
company.
On a first offense, it is probably better to submit to the
test, since the 45 day work permit is a lesser penalty, the
insurance company cannot find out about it, and the result in
court as a first offender will not be overly harsh. On the other
hand, if the person is a third or fourth offender or more,
he/she may be better off refusing the test.
In Maryland, there is a right, upon request, to consult with
an attorney to decide whether to take or refuse the breath test
for alcohol, so long as it does not interfere with or
unreasonably delay the testing process. The test must be taken
within two hours of apprehension.
This right does not necessarily exist on federal property in
Maryland which is under the jurisdiction of the National Park
Service and patrolled by the United States Park Police. Those
areas are under the jurisdiction of the federal courts, and
under the National Park Service Regulations a refusal is a crime
punishable by up to 6 months in jail and a $5000 fine.
In Maryland, the driver has no choice as to the type of test
to be taken. Generally a breath test is administered, unless the
driver is injured and taken to a hospital, is unconscious or
incapable of refusing the test, or a breath test machine is not
available. Under those circumstances, the officer may direct
medical personnel to withdraw a blood sample.
In Maryland, if a person has not been convicted of drunk
driving within the previous five years, the person is eligible
for probation before judgment, informally called PBJ. A PBJ is
exactly what it says. After the court finds that the evidence is
sufficient for a finding of guilt, the person is placed on
probation before getting a judgment (or conviction) against
them. If the probationary period is completed without any
violations, the person does not receive a conviction, no points
are assessed, and the guilty finding does not show on the
person's complete driving record. The PBJ will appear on a
separate PBJ driving record, which is only available to the
person, his or her lawyer, the courts, the prosecutors, and the
police. If the person receiving PBJ gets arrested for drunk
driving a second time, the authorities will know that he/she is
not a first offender. If a person elects to accept PBJ he or she
gives up the right to an appeal and the arrest cannot be
expunged. However, a PBJ can be expunged from a driving record,
after 10 years without a ticket.
It is within the judge’s discretion whether or not to issue a
PBJ. The answer to this question will largely depend on what is
done before trial to demonstrate a desire to learn about drunk
driving, what county the case is and who the judge is.
Generally, judges who give PBJ’s want to see first offenders get
an alcohol evaluation to determine whether they are a social
drinker or a problem drinker, and also to complete the
recommended educational or treatment program. Some judges,
generally in more rural counties where court dockets are not so
congested, will impose a short jail sentence, one night to ten
days, even on a first offender.
When charged with DUI in Maryland you face both administrative
and criminal penalties. License suspensions and revocations are
handled administratively, by the Maryland Motor Vehicle
Administration (MVA). If you refuse the breath test or blow over
a .08, then you face a suspension of your license, or for out of
state drivers, the privilege to drive in the state of Maryland.
The law is designed to get your attention by immediately
confiscating licenses of alleged drunk drivers. This is not
fair, but courts justify this by saying the suspension is not
“punishment” but rather it is for the protection of the public.
Unless your license or privilege to drive is already suspended,
the officer will usually issue a 45 day temporary license that
allows you to drive prior to a hearing. It is a good idea to
request a hearing before the Motor Vehicle Administration on
these matters. This is done by filling out the back page of the
officer’s certification form, (it is marked hearing request
copy), and sending it in to the Office of Administrative
Hearings with a check for $125.00. If the hearing is requested
within 10 days of the arrest, then you will receive an extension
of your temporary license if the hearing does not take place
within 45 days. MVA hearings are tape recorded informal hearings
that take place in a room at the MVA before an administrative
law judge (ALJ). Generally there are no witnesses, and the ALJ
conducts the hearing based on the paperwork from the arrest.
There are several issues that can be raised at these hearings,
and in many instances there are complete defenses to these
suspensions, or in other instances the driver may request a
modification of the suspension.
If found guilty of DUI, the MVA may again be able to suspend
or revoke your license or privilege to drive in the state of
Maryland, so it is possible to have an MVA hearing before and
after the criminal proceedings.
For licensees licensed in other states, the state of Maryland
does not have jurisdiction to suspend your out of state license,
but will suspend your privilege to drive in the state of
Maryland. The first time a driver blows over .08, it goes on a
Maryland PBJ record, and will not be transferred to the home
state. A refusal or a second blow over .08 however, may be
transferred to the home state, so it is important for out of
state drivers to request a hearing and consult with an attorney
to try to beat the suspension.
An interlock is a device that is installed in your car that is
about the size of a cell phone with a mouthpiece on it. The
device connects a motor vehicle ignition to a breath analyzer
that measures a driver’s blood alcohol and prevents a motor
vehicle ignition from starting if a driver’s blood alcohol level
exceeds the calibrated setting on the device. A driver must blow
into the device in order to start the car, and then periodically
while driving when ever the device beeps.
In Maryland, a driver may request a modification of any
non-mandatory suspension that will allow the driver to drive
with an interlock. Other individuals who may be required to
participate in the ignition interlock program are, individual’s
whose licenses are suspended or revoked for a conviction of
drunk driving, individual’s ordered to participate by the court,
an individual violates an alcohol restriction on his/her
license. A person under 21 convicted of drunk driving may be
required to participate in the ignition interlock program for a
period of not more than three years to retain his/her license.
An individual whose license is suspended for a fourth or greater
offense of drunk driving is considered a habitual offender and
that person’s license may not be reinstated unless the
individual participates in the interlock program for at least 24 months.
A licensee may appeal from a decision by the administration to
the circuit court within 30 days of the decision. It is not
guaranteed that the administration will allow a delay of the
license suspension pending appeal. The licensee must request a
stay of the suspension in writing, and the administration then
has the discretion to grant or deny the stay.
This is the horizontal gaze nystagmus (HGN) test. When
conducting this test, the officer is watching for an involuntary
jerking of the eye, which may, among other causes, by caused by
consumption of alcohol. If the officer detects three clues in
each eye, lack of smooth pursuit, nystagmus at maximum
deviation, and nystagmus prior to 45 degrees, then he is trained
to arrest. In Maryland, the legal effect of this test has pretty
much been neutralized by two appellate decisions holding that
the court can only accept the test to show the defendant had
consumed alcohol.
If you really did do well on the field tests, this may be a
defense at trial. In many cases, people misunderstand the
directions or do not know what the officer is looking for. The
field tests most commonly administered by officers are approved
by the National Highway Traffic Safety Administration (NHTSA)
for the investigation of drunk driving cases.
On the follow the penlight with the eyes test, (HGN) the
officer is looking for an involuntary jerking of the eyes known
as horizontal gaze nystagmus. You cannot feel this.
On the one leg stand test, the officer is looking for four
clues, putting the foot down before 30-1000, hopping, swaying,
and raising the arms more than six inches.
On the walk and turn test, the officer is looking for eight
clues, whether the person started before the instructions were
complete, was unable to stand with one foot in front of the
other while being instructed, failed to touch heel to toe on
every step, failed to stay on the line, stopped walking, raised
arms more than 6 inches, took the wrong number of steps, or
turned improperly.
Accuracy is questionable. Even when these tests are
conducted under ideal circumstances by qualified law enforcement
personnel, the National Highway Traffic Safety Administration
has determined that the three standardized field sobriety tests
Pen Test (Horizontal Gaze Nystagmus) -- 77% likelihood that
the BAC is › .10
Walk and Turn -- 68% likelihood that the BAC is › .10
One Leg Stand -- 65% likelihood that the BAC is › .10
As indicated by these results, the standardized field sobriety
tests are not a highly reliable indicator of intoxication.
Likewise, their results can often be successfully contested in
court by a skilled attorney. Maryland case law holds that the
Horizontal Gaze Nystagmus, or (HGN) test may only be introduced
to show presence of alcohol, but, despite their inaccuracy
rates, the SFST’s may be used in court as observational
evidence. Nonetheless, if the officer does not administer the
tests to NHTSA standards, a skilled attorney can use that to
impeach the officer’s credibility on cross examination.
Accuracy is questionable. There are many things that can cause
false high or low readings in the breath tests. A skilled
attorney can assist you in determining whether your reading is
commensurate with what you had to drink, and advise you of any
defenses you may have concerning a false reading.
Yes.
The preliminary breath test (PBT) is a hand held device that
the officer may use on the street to assist him in his decision
whether or not to arrest a detainee.
The officer is supposed to advise the driver of his/her right
to refuse to submit to a preliminary breath test, and no, the
driver cannot lose his/her license for a refusal to blow on the
street. The results of a PBT are not admissible in court, and
oftentimes the officer will not advise a detainee of the result.
It is simply a tool the officer uses to help determine whether
or not a driver is intoxicated.
You probably were advised of your right to take or refuse a
chemical test for alcohol and the penalties for failing or
refusing the breath test. You are probably referring to the 5th
Amendment "Miranda" warning about the right to remain silent and
to have the assistance of a lawyer. Miranda warnings apply to
police interrogation, not to preliminary questions used to
determine probable cause. For that reason, Miranda warnings
generally are not given in drunk driving cases. However, if the
officer did conduct an interrogation after arrest and the
Miranda rights were not read, then the prosecution may not be
able to use any of your answers to the officer’ s questions
against you in court.
That will depend on the insurance company and the disposition
in court. A conviction will likely have an effect on insurance
rates, however, for first offenders who receive PBJs, no
conviction is ever received, and the insurance company is
unlikely to find out.
Yes. If convicted of a DUI, there will be a permanent record
in court and at the MVA on your driving record, however, the
driving record can be expunged after ten years without a ticket.
These are public records and can be accessed by anyone who is interested.
On the other hand, if you are found not guilty, the record of
your arrest can be expunged and there will likewise be no trace
of your arrest for anyone to locate.
The maximum penalty for driving on a suspended license can
either be 3 points, a $500.00 fine, and sixty days in jail, or
12 points, a $1000.00 fine and a year in jail depending on the
reason for the suspension.
The rules for a driver pulled over while operating a
commercial motor vehicle are a little bit different. A person
operating a commercial motor vehicle faces disqualification of
his/her CDL for a period of one year if while driving a
commercial motor vehicle:
Any person convicted of two or more of any of the above
violations will be disqualified for life. The federal government
has conditioned availability of highway funds on states enacting
more restrictive CDL provisions including disqualifying CDL
holders who receive a DUI or DWI while driving a non-commercial
vehicle. Maryland is likely to enact such provisions in 2005.
Every state has its own laws pertaining to point systems, and
how out-of-state convictions are handled. Anyone concerned with
whether an out of state conviction will be reported to his/her
home state should contact an attorney in that state, as the laws
vary from state to state.
Although you can represent yourself, it is usually not a very
good idea. The drunk driving area of the law is very complex and
you need someone who knows all of the procedures and personnel
involved in order to be able to get you the best possible result
under your particular circumstances.
This web site provides, at the top its home page, the names of
attorneys experienced in DUI matters. Of course, this is not an
all inclusive list of experienced DUI attorneys. If you wish to
contact someone else, you should receive a positive answer to at
least the following questions:
- Do you have experience taking drunk driving cases to trial?
- Does the fee include all the Motor Vehicle
Administration (MVA) hearings? (If the lawyer says he or
she does not handle MVA hearings because it will not
affect the result there, you should seek a different
lawyer).
- Are you willing to put me on a payment plan so I can
afford your services?
- Can you present me with a written retainer agreement?
- Finally, when you finish discussing your case with a
particular lawyer, you should feel confident in his or
her ability to obtain the best possible result for you.
You can be arrested for DUI even if the officer doesn’t see
you driving or in physical control of the vehicle if you are at
the scene of a traffic accident and the officer has probable
cause to believe that you were guilty of DUI.
Although under your insurance policy you are probably
obligated to cooperate with your insurance agent or adjuster,
you must be cautious in what information you provide. Any
information or statements provided can be used against you in
any pending criminal case. Therefore, you should contact your
attorney for advice on how to proceed and what information you
should not divulge.
Yes. Any statements made in connection with a civil lawsuit
can be used against you in your criminal case. You should
immediately consult both a criminal and civil attorney to ensure
that your rights are protected in both the civil and criminal cases
You should consult both a civil and criminal attorney
immediately to ensure that your 5th Amendment right to remain
silent is preserved. Under certain circumstances, your actions
in relation to a civil case could affect the preservation of
your 5th Amendment rights in a related criminal case.
A minor is any person under 18 years of age. Persons 17 years
of age and younger cannot be prosecuted under adult DUI laws,
rather their matters are handled in juvenile court.
Anyone under the age of 18 will be prosecuted as a juvenile and
should not be put in adult jail, but rather will be subject to
juvenile detention. Anyone 18 or over will face the same
penalties as an adult over 21 in court in addition to the
penalties for violation of the alcohol restriction on the under
21 year old’s drivers license.
Yes. Any person who drives in Maryland, regardless of their
age, has impliedly consented to take a breath or blood test.
The consequences for refusal are the same for an under age
driver as for an individual over 21. The driver’s license will
be suspended for 120 days for a first offense and one year for a
second or subsequent offense. For a blow of .08 the driver faces
a 45 day suspension for a first offense or a 90 day suspension
for a second or subsequent offense. The difference is that a
driver under 21 also faces a suspension for a violation of an
alcohol restriction, as all drivers under the age of 21 in
Maryland have an alcohol restriction on their licenses
prohibiting them to drive with any alcohol in their blood. A
violation of an alcohol restriction subjects the under age
driver to a six month suspension. In other words, an under age
driver faces two separate hearings for two separate violations.
A lawyer can move to consolidate these hearings, and may request
for an ALJ to have the suspensions run concurrently if the
arguments pertaining to a complete defense to the both
suspensions fail.
For a conviction of DUI, the under age driver faces
revocation. For a first conviction of DWI the minor faces
suspension for six months, and for a second or subsequent DWI,
suspension for a year. Furthermore, a minor may be required to
have an interlock for a period of not more than three years in
order to retain his/her license for a conviction of drunk driving.
