As an Experienced and Aggressive Criminal and DUI Attorney I have successfully defended hundreds of people who were charged with DUI and DWI in Maryland Courts. As most people are aware these laws are being more strictly enforced by the police and more aggressively prosecuted by the State every year. Nowadays, repeat offenders, including second offenders routinely go to jail if convicted.
I successfully represented a second offender in Harford County last week. The State was seeking a 30 day jail sentence for this single mother of two. Needless to say this would have been a devastating result for her. Here are the facts:
client went out for drinks at a bar in Harford County after playing a game in a kickball league. She only had 3 beers before switching water as she knew she had to drive. Unfortunately, she is not a big person and didn’t eat very much. She thought she would be all right to drive (frankly, she was) but was over the limit. She pulled up to an intersection at a little after one in the morning. She was in a designated left turn lane but did not utilize her turn signal prior to executing a left hand turn. The police officer who had pulled up in the lane behind her while she was waiting for the light to turn green, immediately activated his emergency equipment and effectuated a stop of the vehicle.
After asking for her license and registration, the officer informed her that he smelled the odor of alcohol and asked her if she had had anything to drink. She was honest and admitted to drinking 3 beers. She was then put through a battery of field sobriety tests including the walk and turn, the one leg stand and the horizontal gaze nystagmus test. According to the officer she failed these test and she was arrested. She agreed to submit to a breathalyzer and blew a relatively low .11 Blood Alcohol Concentration (BAC). As most people know these days the legal limit for Driving Under the Influence in Maryland is .08 so she was charged accordingly. Open and shut case for the State, right? Before I answer that question, I want to spend a moment explaining what happens if a person’s BAC result is below a .08 but there is some alcohol in that person’s system. Many people wrongly believe that if they blow under a .08 that they cannot be convicted of an alcohol related offense. This is simply not true.
In Maryland a BAC of .07 is prima facia evidence that the person is impaired by alcohol. This means that unless the other evidence such the person’s performance of the field sobriety tests, the person’s driving prior to being stopped and/or the officer’s observations either contradicts the evidence, in which case the person should be found not guilty or enhances the evidence, in which case the person could be found guilty of Driving Under the Influence, the person will be found guilty of Driving While Impaired. At .06 there is no presumption either way which means a person could still be convicted of at least Driving While Impaired. At .05 or below the State would have to overcome a presumption of sobriety. While this would be a difficult burden for the State it is not impossible and people have been convicted of DWI who had BAC levels this low.
Back to the case. So is this an open and shut case for the State? The answer is, fortunately for the client, no. In Maryland, a person is only required to use a turn signal if their failure to do so might “affect another car on the road”. After electing a court or judge trial (as opposed to a jury trial) I made an oral motion to suppress the evidence in the case. The officer, to his credit, testified under direct and cross that the client was in a designated turn lane and that her failure to signal did not affect him in any way. At the close of the State’s evidence I moved to suppress the evidence for lack of probable cause to stop my client. The judge granted that motion and my client was found not guilty of all charges.