Attorney at Law
LAWYER FOR JUSTICE
Practicing Law Throughout Maryland, Washington, D.C., and Virginia
Since 1998
MARYLAND DUI LAWYER
Listed in the Martindale-Hubbell Bar Register of Pre-Eminent Lawyers for Criminal Trial Practice and White Collar Crime
Washingtonian "Top Lawyers" (2004, Partner Jon Katz)
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DRUNK DRIVING CHARGES CALL FOR AGGRESSIVE DEFENSE AND PREPARATION
One Too Many? - Defending Drunk Driving Cases
Surprise is a common response my clients have to their first arrest for driving while intoxicated. Sometimes the surprise is because the person is simply not guilty. Often, however, the person did drink over the legal limit, but just did not realize that it does not take much alcohol to make a person culpable of driving while intoxicated.
The penalties for driving while intoxicated can be harsh, including imprisonment and the loss of one's license for a lengthy period of time. With drinking and driving laws as stiff as they are, it is best to never risk driving after drinking more than a moderate amount of liquor, if even that much. It is commonly said that the body should not be expected to metabolize more than one drink (e.g., a 12-ounce beer, a 4-ounce glass of wine, or one ounce of liquor) per hour.
Unfortunately, it is hard to get the benefit of the doubt from a police officer who smells liquor on a driver's breath, or who thinks a driver is acting intoxicated. Police are not experts in identifying drunk drivers, and drivers need to know their rights in dealing with the police.
Even if a person has broken the drinking and driving laws, there is no reason for the driver to make a bad situation worse by providing unnecessary cooperation to the police. The police and prosecutor have the burden to prove a driver guilty beyond a reasonable doubt in a court of law; the accused walks into court presumed innocent. The driver should do whatever is honestly and legally possible to be found not guilty, and to get the most favorable sentence if found guilty. A driver should not help make the police officer's job easier if that only will increase the driver's risk of being treated harshly in court.
When a driver is stopped by the police, the driver and the car's passengers should try to identify whether the driver did anything to justify being stopped. This information will be important for the arrested driver's attorney to argue in court that the police stopped the car illegally, and, therefore, to throw out any evidence beginning with the traffic stop.
In general, a driver has no obligation to provide a police officer any information other than the driver's license and car registration. An arrested person's silence generally cannot be used against the person in a criminal trial. Police are trained to persuade people to answer their questions. People must remember, however, that police generally do not want to help suspects avoid a conviction.
Once a police officer suspects that a driver has been drinking beyond the legal limit, the officer will likely ask the driver to step out of the car, and to perform a number of so-called field sobriety tests. These tests may include walking a straight line from heel to toe, standing on one leg with one's arms fully extended outwards, following the officer's pen or flashlight, counting backwards, and reciting the alphabet from the middle. The driver has no legal obligation to perform such tests, and, even if fully sober, the average person may very well perform poorly with some or all of these tests. Unfortunately, the police may be permitted to testify that the suspect refused such tests, and negative inferences might be unfairly drawn from such a refusal.
A driver suspected of drinking too much may be asked to blow into the officer's portable alcohol-reading device. These devices are so inaccurate that their results are generally inadmissible in court. Finally, if still suspected of drinking too much, the driver will be taken to the police station, and will be asked to submit to a test of the suspect's blood alcohol level. Ideally, the driver should have the advice of a qualified attorney at this point about whether to take the blood alcohol test, because the many variables in making such a decision are too voluminous and sometimes minute to sufficiently cover in this or any other article. Unfortunately, many drunk driving arrests take place during the weekends and early morning hours when it is hard to reach a qualified attorney. In any event, if the suspect is able to reach an attorney, that should be the time also to talk about the advisability, permissibility, and availability of getting an expert witness onsite to check the accuracy of the testing as it happens.
Different jurisdictions have a jumble of civil and criminal rules about sanctions for refusing to take blood alcohol tests, the weight that judges and juries may place on such refusals, and even rewards for blood alcohol results below a certain level (e.g., as of the updating of this article, Washington, DC, generally has a diversion program in Superior Court for first-time arrestees with blood alcohol levels below 0.15). For those who take a breath test at the police station, be ready to be asked to blow very hard into the machine; this certainly is unfair for people who physically are unable to blow forcefully.
When the driver takes the breath test, the defense lawyer has more discovery and defenses to prepare, including: sufficiency of the rights read to the driver before the test is taken, including overcoming any language barriers with drivers who are not fluent in English; the time that elapses between the time of arrest and the time the breath test is offered; inferences of no intoxication that might arise from improperly advising the driver of the right to take or refuse the test and of the implications of such refusal or acceptance; an improperly administered test, and a low blood alcohol reading; the qualifications of the breath test technician; the accuracy of the breath testing equipment; and the willingness of the breath technician to permit the driver to reverse a refusal or agreement to take the test.
The driver's defense counsel will demand or subpoena the breath technician's presence in court within the deadline established by the applicable court rules, to avoid the court's automatic admission of the breath test results into evidence. It is also vital to try to find ways around any per se drunk driving statutory provisions.
Apparent intoxicated behavior often can be explained by such other circumstances as health problems, fatigue, personality, weather conditions, and traffic conditions. Sometimes, intoxicated behavior results from drugs in one's body. When the breath test result is low, and when the arresting officer still suspects foul play, the officer might then call in a drug recognition ("DRE") expert to try to establish that the driver was driving under the influence of drugs. Unless the arresting officer has found drugs in or around the driver, has smelled drugs, or has an admission that the driver has been using drugs, the prosecutor must rely on blood test results and/or circumstantial evidence. Defenses to the blood test results include that drugs can stay in the bloodstream long after they have any effect on driving; moreover, most of the defenses against the breath test results can be adapted to defending against the blood test results.
Often, the drug recognition expert is a police officer who has minimal classroom training and on the job training in drug recognition, and little to no college training in this subject. A stronger argument can often be made against accepting the DRE as an expert than accepting the breath technician as an expert. Although bench trial judges may be willing to be more lax in qualifying the DRE as an expert, a stronger argument can be made against the prejudice of having the jury hear the DRE when the DRE's expertise is too much in question. If the DRE is allowed as an expert, often the DRE will make outrageous claims about circumstantial evidence that will provide strong ammunition for effective cross examination.
The driver will be concerned not only with the criminal implications of a drunk driving arrest, but also about the possibility of administrative loss of the driver's license both after a conviction and through a parallel motor vehicle administration suspension hearing. Although administrative suspension defense issues can fill many pages, a few key considerations for defending at administrative hearings include: taking maximum advantage of the absence of opposing counsel at such hearings, including the inability of the government to respond to creative legal arguments; calling live witnesses, which can sometimes be more powerful than the opposition's presentation of mere documentary evidence; and seeking restricted driving privileges for the shortest amount of time, in the event that a suspension is ordered.
No matter how draconian the states' drunk driving laws become, the defenses remain numerous and often powerful enough that "innocent" should continue to be a frequently heard plea for such cases.
NOTE: This article was updated in April 2002, for publication in the Summer 2002 newsletter of the Criminal Law Section of the Association of Trial Lawyers of America. This article was updated in April 2006.
JON KATZ, P.C. - FIGHTING FOR DEFENDANTS ACCUSED OF DRIVING UNDER THE INFLUENCE OF ALCOHOL AND DRUGS
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