Maryland Criminal Attorney Blog
Maryland DUI/DWI Attorney I was recently retained to represent a person who is charged with Driving Under the Influence of Alcohol, Driving While Impaired, Negligent Driving and Failure to Control Speed to Avoid a Collision. The client was involved in a serious single car accident while driving home from a night out at the bars. He lost control of his car, went off the road and slammed into a telephone pole. He was seriously injured with several broken bones and was transported to shock trauma.
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 does consent the driver’s blood will be drawn by a nurse. The blood is packaged in a blood kit and taken to the State Laboratory to be analyzed by a chemist using procedures developed by the State Toxicologist on equipment that is monitored and tested regularly to insure accurate results. If the test reveals the presence of alcohol it can be admitted into evidence in trial and will carry with it legal presumptions depending upon the blood alcohol level. The evidence can also be introduce without the presence of the chemist who performed the test or anyone else in the chain of custody unless the defendant notifies the State in writing that the presence of the Chemist and all others in the chain of custody is demanded. If the blood alcohol level (BAC) is .08 or greater, this alone constitutes per se evidence that the person was under the influence of alcohol. If the BAC is .07 the State is entitled to a legal presumption that the defendant was impaired. If the BAC is less than .07 but greater than .05, there is no presumption and if the BAC is .05 or lower, the driver is presumed to not be impaired or under the influence of alcohol.
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.