Drunk driving/DWI/DUI

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

Field sobriety tests are not mandatory tests in drinking and driving cases where I practice law. Therefore, when the police offiicer commands a drinking and driving suspect to take the field sobriety tests -- or makes the taking of the tests anything but fully voluntary -- the results should be excluded.

Virginia caselaw confirming that field sobriety tests are voluntary tests is Hammond v. Virginia, 17 Va.App. 565, 439 S.E.2d 877 (1994) (thanks to my colleague who introduced me to Hammond), which says:

A field sobriety test is not mandatory and is administered by an officer only with the consent of the accused. The test provides an immediate indication of whether probable cause exists to believe that the accused is under the influence. If a defendant refuses to take the test, that refusal may be evidence of guilt. Farmer [v. Com.], 12 Va. App. at 341, 404 S.E.2d at 373. Similarly, we assume arguendo that if a defendant readily volunteers to take a field sobriety test, the willingness may be relevant to prove innocence. Farmer held only that evidence of the accused's refusal to take the test or his actions in voluntarily **879 performing the non -required field sobriety test may be relevant to prove the accused's guilt or innocence.

Hammond,  17 Va.App. 565, 568 (1994).

Maryland caselaw confirms that field sobriety testing amounts to a search requiring reasonable articulable suspicion to proceed with such tests in drunk driving cases. Blasi v. State, 167 Md. App. 483, 893 A.2d 1152, cert. denied, 393 Md. 245, 900 A.2d 751 (2006). Blasi says:

[T]he administration of field sobriety tests by a police officer during a valid traffic stop intrude into an area of an individual's reasonable expectation of privacy because: (1) the process of conducting field sobriety tests exposes certain aspects of an individual not otherwise observable by the public; and (2) the information disclosed by the field sobriety tests may reveal private facts about an individual's physical or psychological condition. Therefore, we hold that the administration of field sobriety tests by a police officer during a valid traffic stop constitutes a search within the meaning of the Fourth Amendment to the U.S. Constitution."

Blasi, 167 Md. App. at 505.

Although Virginia law does not recognize field sobriety tests to be searchs, Blasi does. Blasi, 167 Md. App. 483. Consequently, the prosecution in Maryland cases has the burden of showing that the Defendant submitted to the field sobriety test/search voluntarily. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041 (1973). 

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

If a drunk driving suspect has alcohol in his or her system, s/he risks a blood alcohol reading over the legal limit of 0.08. If a drunk driving suspect refuses to take a breath or blood test when offered to do so at the police station or jail (not the handheld device on the street, which should always be refused, in the jurisdictions where I practice), here are the sanctions one risks for such a refusal, in the jurisdictions where I practice:

- Virginia. Where the defendant has no prior DWI convictions, the magistrate -- after finding probable cause that the defendant violated the DWI law -- will suspend the defendant's driver's license for seven days, whether or not the defendant refused to take the breath test. If the defendant refused to take the breath test after being advised pursuant to the statutory language by the police of the one-year sanction faced for a refusal (and the jail risked for a refusal where the defendant has prior refusal or DWI convictions), the first-offense sanction for so refusing is a civil offense carrying one year of no driving and no restricted driving privileges. Defenses against a refusal charge are that the police arrested without probable cause to believe the defendant was in violation of the DWI law, that the defendant did not refuse (police will sometimes list inability to blow into the machine sufficiently as a refusal, when they should instead then offer a blood test), and that the refusal was reasonable (for instance, the defendant can argue whether the test runs counter to his or her religion, or whether the police followed up the implied consent statutory language with confusing commentary on it).

- Maryland: When a DWI defendant refuses to take the breath test or has a blood alcohol content result (through a breath or blood test) of 0.08 or higher, the police officer ordinarily seizes the driver's Maryland license (if the driver has one) and, regardless of the licensing state, issues a suspension notice that takes effect in forty-five days unless the defendant timely and correctly delivers a hearing request to the Maryland Office of Administrative Hearings. Postmarking the hearing request no later than ten days after the issuance of the suspension notice extends the licensee's privilege to drive in Maryland until the administrative hearing date. If the administrative law judge finds that the officer had reasonable grounds to believe that the licensee was driving or attempting to drive in violation of the DWI laws, and that the licensee refused the breath or blood test after being properly advised of the sanctions for refusing, for a first-time violation the sanction will be 120 days of no driving on a Maryland license, or in Maryland for an out-of-state licensee, unless the Maryland licensee requests and receives an order allowing driving with the ignition interlock for a year. One convicted for violating the drunk driving laws can be exposed to up to sixty additional days of jail for a refusal.

- District of Columbia: Ordinarily, at least with the Metropolitan Police, police will issue a suspension notice to a DWI suspect who refuses a blood, breath or urine test, who has a BAC test result of 0.08 or more, or who police claim was driving under the influence of alcohol or drugs. The licensee has a designated number of days to demand an administrative hearing with the DMV, with out-of-state licensees having additional days to demand a hearing. The DMV seems to require unrepresented licensees to come personally to the DMV to request a hearing --which can be particularly cumbersome to those who live and work far away. As a courtesy to my clients who hire me for their parallel DWI cases, I, on the other hand, am able to satisfy the hearing demand deadline by both emailing and snail mailing a hearing demand to the appropriate DMV personnel. Police often do not appear at the DMV hearings, which makes it all the more worthwhile to demand a hearing, lest one lose one's D.C. driving privileges for a year for a refusal, or for sixth months if the hearing examiner finds clear and convincing evidence that the driver was driving in violation of the drunk driving laws, and, for the one year suspension), refused any requested breath, blood or urine test. Restricted driving privileges are rarely granted for DMV driving suspensions for DWI cases.

Federal court: For DWI cases in federal court, I usually am dealing with National Park police, Pentagon police, CIA police, and military police for those trying to drive into military installations. At least with park police, a regulation is in place that provides for up to six months in jail for refusing a breath or blood test. In fact, most park police moving violations carry up to six months in jail, even for speeding just a few miles over the speed limit. To expose a person to jail for low-level moving violations is nuts. Because such prohibitions and sanctions are creatures of federal agency regulations, it is all the harder to convince Congress to change the situation.

Whether or not to refuse a breath or blood test in many respects comes down to balancing the arrestee's interests in beating the DWI charge (in which case a refusal is more advisable) against the arrestee's interest in preserving his or her privilege to drive. Unfortunately, depending on the jurisdiction and circumstances, taking the breath or blood test might make it more likely that the defendant will lose the DWI case AND get his or her driving privileges suspended.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

On April 17, 2013, the Supreme Court issued a splintered opinion in which a 5-4 majority ruled that nonconsensual blood draws ordinarily require a search warrant in driving while intoxicated investigations and arrests. Missouri v. McNeely, __ U.S. _ (April 17, 2013). McNeely says that the totality of the circumstances needs to be reviewed to determine whether an exigency existed to draw the blood without first obtaining a search warrant, but underlines that search warrants will usually be required for such investigations.

McNeely, unfortunately, focuses on the dissipation of alcohol in the suspect's body, and includes no discussion about the many instances in which alcohol continues absorbing into one's bloodstream after the suspect's driving activity is complete. Consequently, criminal defense lawyers and their expert witnesses (experts on breath testing, for instance) must be at the ready to educate judges about the frequent ongoing absorption of alcohol into the bloodstream after driving ceases.

Among McNeely's benefits is the elimination of the draconian practice in at least one or more states where police have reportedly pinned down resistant drunk driving suspects on the scene, to draw blood onsite.

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting tirelessly for the best possible results for his clients. http://katzjustice.com.

On January 10, 2013, Virginia's Supreme Court allowed trial judges to amend drunk driving/DWI charges to reckless driving, at least where the judge has not yet found guilt of DWI and where the defendant does not oppose the amendment. Kelley v. Stamos, __ Va. _ (Jan. 10, 2013).

Reckless driving is a double-edged sword in Virginia. On the downside, a reckless driving conviction can arise not only from driving recklessly but from driving twenty miles an hour or more over the speed limit or eighty miles an hour or more, and is a Class 1 misdemeanor carrying up to a year in jail, up to a $2500 fine, and up to six months of suspended driving (with restricted driving privileges available). On the upside, for less serious DWI charges (e.g., with a low blood alcohol reading) or where the prosecutor is unsure whether s/he will win the DWI charge, Virginia prosecutors sometimes offer to amend DWI to a guilty plea or reckless driving, which looks better on one's record than DWI and eliminates the mandatory ignition interlock. Over time, some judges have been more willing than others, even, to amend DWI to reckless -- even without prosecutors concurring, as I obtained at the end of a DWI trial as explained here and without my request -- where the judge finds such an amendment to be merited, even though reckless driving is not a lesser included crime of DWI.

Last Thursday, Virginia's Supreme Court authorized trial judges to continue with the practice, if the judges so choose, to amend a DWI charge to reckless driving if they so choose, without kneeing the prosecutor's consent. In Kelley, the defendant entered a guilty plea before the General District Court judge, who continued the case disposition to the following month. The General District Court being a court not of record, with no recording device in the courtroom unless one or both parties arrange for it, the Supreme Court was not sure what precisely took place in the District Court, so relied on the documents in the case and the notations made on the case disposition sheet.

The prosecutor successfully sought an order from the next highest court, the Circuit Court, for the General District Court judge to change his disposition to DWI. Praised be Virginia's Supreme Court for reversing the Circuit Court, saying that trial judges are authorized on their own, without the prosecutor's consent, to amend criminal charges. Implicit in the ruling is that the defendant needs to consent to the amendment, and what defendant would not consent to amending DWI to reckless driving, everything else held equal?

ADDENDUM: As procedural curiosity, the foregoing Kelley case arose from the chief county prosecutor Theo Stamos's filing a lawsuit against the presiding General District Court Judge Thomas Kelley (before whom I have appeared many times) seeking a mandamus order from the Circuit Court. Kelley also addresses Judge Kelley's procedural challenges to the prosecutor's seeking mandamus relief. I am curious about whether the General District Court system paid the fee to have Judge Kelley represented by counsel in this case, who on appeal was Robert R. Musick of Richmond.

"Homo sum: humani nil a me alienum puto./I am human: nothing human is alien to me" - Publius Terence.

As I tell many of my clients charged with drivin under the influence of alcohol ("DWI"), the only difference between them and me is that they got caught. Of course, I stopped drinking after driving cold turkey over a quarter century ago, and have not imbibed at all for over seven years.

The DWI laws are so draconian that it takes but two people sharing a bottle of wine at a restaurant to make the driver a potential DWI arrestee. When I started practicing criminal defense in 1991, it was a golden age when driving with a 0.10 blood alcohol content ("BAC") in Maryland created but a rebuttable presumption of DWI guilt. Then, the federal government came along -- just like it did in the 1980's, strongarming states to raise the drinking age to twenty-one (but still willing to send eighteen to twenty year olds to war) -- with new legislation conditioning ongoing federal highway funding on a state's making it a crime to drive with a 0.08 BAC.

Unless and until the DWI laws outlaw DRUNK DRIVING rather than outlawing slight impairment from alcohol or a low BAC level of 0.08 -- and nobody know their BAC level in advance of being arrested and tested -- the DWI laws are a farce denigrating respect for the criminal justice system and lining courts' coffers with $millions in fines and costs for DWI convictions.

Now comes along Idaho Republican Senator Mike Crapo with a DWI arrest -- with a January 4, 2013, arraignment -- joining such other public officials charged with DWI as former Wicomico County chief prosecutor Davis Ruark; former Alexandria, Virginia, police chief David Baker; Maryland Delegate Herman Lee Taylor, Jr. (acquitted in court, and prior to his arrest sponsored a bill in 2006 to require a scarlet letter license plate emblazoned with "DUI" for those with over two drunk driving convictions); and Maryland house majority leader Kumar P. Barve, who entered a guilty plea to DUI and received a probation before judgment in Montgomery County.

To this very day, Senator Crapo's official website proclaims: "As a basic principle, any person convicted of injuring another individual should be punished to the highest extent of the law."  Perhaps his recent DUI arest will show Senator Crapo to take a more balanced and in-depth view and action on the criminal laws and criminal justice.

In any event, here are some additional thoughts on Senator Crapo's arrest and prosecution

 - Crapo is presumed innocent and his case may be winnable. For instance, the 0.11 BAC reading could be a false high. These machines can err.

- Crapo's BAC reading will not come into evidence if no arrest probable cause is found.

- The relevant BAC in Virginia is from the time of driving. BAC can rise between time of driving and BAC testing, as alcohol can be absorbing into the bloodstream.

- Breath BAC testing margin of error arises from machine error, operator error, excessive blowing and the machine's assuming a mouth temperature of 33 degrees celsius, whereas most people have a higher mouth temperature than that. The higher the mouth temperature, the higher the margin of error on the breath testing machine.

I wish Mike Crapo the best in his pending DWI case, and hope that this case will enlighten his approach to criminal law in the Senate.

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting relentlessly for the best possible results for his clients. http://katzjustice.com

In early 2010, the District of Columbia Metropolitan Police revealed a broken down system since 2008 for testing drunk driving suspects with breathalyzer machines. The metropolitan police scrapped the breath testing approach, and reverted mainly to urine testing, despite urine's inability to show one's blood alcohol level.

Now the metropolitan police have bought new breathalyzer machines to go into operation, rather than relying on blood testing, which, when performed properly, is superior to the error-ridden breathalyzer regime. However, rather than giving drunk driving suspects the due process option of blood tests (more reliable than breath tests), the D.C. government has favored the lower cost of breath testing over blood testing (lower cost than drawing and examining blood, and lower cost in terms of getting the necessary witnesses to trial, since blood testing requires at least the testimony of the blood drawer and blood examiner plus the arresting officer, whereas breath testing requires at least the testimony of the arresting officer and breath tester).

The emergency legislation that renews the breath testing regime and adds some harsher penalties is here. Thanks to a colleague for providing the foregoing legislation and newspaper links.

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting relentlessly for the best possible results for his clients. http://katzjustice.com

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting relentlessly for the best possible results for his clients. http://katzjustice.com

Virginia law requires a one-year loss of license for unreasonably refusing to submit to a blood or breath test when there is probable cause to believe one is driving while intoxicated. Maryland law increases by sixty days the maximum possible jail time for such a refusal, when convicted for driving under the influence or driving while impaired.

What happens, then, when the police request a breath or blood test and the suspect remains silent? In the Fourth Circuit, that silence (versus spoken refusal) cannot be used against the defendant to prove that s/he was the driver, whether or not it can be used to try to prove refusal to take the breath test:

The magistrate judge considered Hagedorn's silence after being advised of the implied consent statute as an admission that Hagedorn was, in fact, the driver. The Government argues this inference is permissible because of the constitutionality of the use of defendants' incriminating statements relating to refusals to submit to blood and alcohol tests. See *110 South Dakota v. Neville, 459 U.S. 553, 566, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (upholding against a Fifth Amendment challenge the use of a defendant's statement refusing to submit to breath test in a subsequent prosecution for refusal). We reject this reasoning. Hagedorn's silence did not amount to a refusal. Indeed, he consented to the breath test, and the results were ultimately used against him at trial. Rather, Hagedorn merely exercised his right to decline to speak when advised of the implied consent laws applicable to motorists. We cannot agree that silence under such circumstances constitutes an admission of culpability. See, e.g., Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

U.S. v. Hagedorn, 55 Fed. Appx. 109 (unpublished) (4th Cir. Decided Dec. 16, 2002 decided on rehearing Feb. 3, 2003).

To put all this more in context, the Fourth Circuit finds no Fifth Amendment violation for admitting pre-arrest silence into evidence. U.S. v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985).

Thanks to a fellow listserv member for posting on Hagedorn.

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting relentlessly for the best possible results for his clients. http://katzjustice.com

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting tirelessly for the best possible results for his clients. http://katzjustice.com

Last year, I blogged about winning a drunk driving trial where the police officer found my client asleep at the wheel of a car in a parking lot with the ignition running and with my client's exhibiting significant hallmarks of being under the influence of alcohol. In Maryland, merely being asleep in a parked car with the ignition running does not automatically amount to the driving or attempted driving behavior that can expose a person to a drunk driving conviction, as “long as such individuals do not act to endanger themselves or others.” Atkinson v. Maryland, 331 Md. 199, 627 A.2d 1019 (1993). 

Atkinson  "set forth six factors which must always be taken into account when assessing the potential danger presented by the various circumstances of each case: 1) whether or not the vehicle's engine is running, or the ignition on; 2) where and in what position the person is found in the vehicle; 3) whether the person is awake or asleep; 4) where the vehicle's ignition key is located; 5) whether the vehicle's headlights are on; 6) whether the vehicle is located in the roadway or is legally parked...  No one factor will be dispositive of whether an individual was in 'actual physical control' of the vehicle." Atkinson.

Ironically, a day before I tried the above-discussed case, the Virginia Supreme Court went the opposite direction of Atkinson, ruling 6-1 that one is an operator of a motor vehicle for purposes of a drunk driving prosecution, merely by being asleep at the wheel of a parked car with the key simply turned to the position to have the radio playing. Nelson v. Virginia, 281 Va. 212, 707 S.E.2d 815 (2011). 

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting tirelessly for the best possible results for his clients. http://katzjustice.com

In The Forty Year Old Virgin, one of the hero's drunk prospects asks him to blow into a tube into her car, and away they recklessly go. He did not at the time realize that he was blowing into the ignition interlock machine to enable the car to drive after she had been convicted for drunk driving.

If only that were mere fiction. Yesterday, Virginia's House of Delegates passed a Senate-passed bill mandating the ignition interlock for all people convicted of drunk driving, whereas before those with first-time DWI convictions for a blood alcohol level under 0.15 did not face such a statutorily mandated requirement. All that is left is for the governor to sign the bill, which will soon be a fait accompli, and to see when the legislation will go into effect.

The vast majority of my first-time DWI clients with BAC test results under 0.15 ordinarily plead innocent to DWI, and many take a risk at trial even when prosecutors offer to strike BAC's allegations of 0.15 or higher in exchange for a guilty plea. The incentives to plead guilty to strike the BAC was to avoid the interlock requirement and to avoid jail. Now with the interlock mandatory for all DWI convictions, I foresee more trials, as well, for those originally charged with BAC's of 0.15 and over.

DWI trials sometimes can be won, as I have detailed recently here: http://katzjustice.com/underdog/permalink/VirginiaDRunkDrivingTrialDefending..html , http://katzjustice.com/underdog/permalink/VirginiaAttorneyDefendingDWI..html , and http://katzjustice.com/underdog/permalink/FairfaxNorthernVirginiaDWIDefending..html . With mandatory ignition interlocks for all Virginia DWI convictions, the stakes are all the higher for Virginia DWI defendants to fight such charges tooth and nail.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients.

The D.C. Attorney General’s Office now posts several NHTSA student field sobriety testing training manuals online, from various years from 1995-2007, to expedite answering discovery requests. 

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com  

As I understand it, states created a per se guilty rule for blood alcohol content exceeding 0.08 in drunk driving cases, under threat of losing highway funding otherwise. I understand that the same impetus spurred states to raise their drinking ages in the early 1980's.

Now, there is pending proposed federal legislation (details are here and here) in the House Transportation Reauthorization Bill to pay legal bribes of $25 million annually to each state that requires driving with the ignition interlock system by any person convicted of drunk driving, even with a low blood alcohol content.  

Please contact your Congressional representative to urge that this ignition interlock provision be reomoved from the Transportation Reauthorization Bill. The current drunk driving laws set such a low thresshold for a drunk driving conviction (as low as a 0.08 blood alcohol content) that people who are barely culpable get snagged into guilty DWI convictions under the current state of law. Requiring the ignition interlock is expensive for defendants to have it installed and to be part of the Interlock program, and an interlock restriction requires only using vehicles equipped with the interlock device.

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting tirelessly for the best possible results for his clients. http://katzjustice.com

In law school, a criminal law professor one day joked about police claims that they don't have arrest quotas, and then at once hilariously and pathetically took the role of a police supervisor asking his subordinate: "Where are your minimum thirty traffic tickets for the month?"

Do police feel they have quotas to justify their jobs and salary? Just ask Howard County, Maryland, police, whose department received a federal grant that the police chief confirmed "'mandated that an average of 2-4 citations must be written per hour on each of these details by each officer or future funding may be withheld.'" (Thanks to a listserv member for posting on this story.) If that is not a quota, then what is?

But wait. The situation gets more pathetic. According to the Baltimore Sun, a "December 2010 stat sheet obtained by The Baltimore Sun includes a handwritten notation advising county officers of 'a prize' for boosting traffic stops 60 percent. This memo was not used in the court case" that led District Court Judge Hantman to dismiss a drunk driving charge in a courthouse up the road from me.

This story alone should be enough to end the practice of too many judges, jurors, and prosecutors (of course) who ascribe extra credibility to police officers merely because they wear a uniform. The uniform does not add credibility any more than my changing my name to John Coltrane makes me an astounding sax player. A vast majority of people lie and exaggerate. Police are people, so a vast number of them also lie and exaggerate. Sad but true.

Congratulations and thanks to criminal defense lawyer Mark Muffoletto, who had the information and insight to issue a records subpoena that obtained the above-described quota smoking gun that led to the dismissal of his case before Judge Hantman. This story is fodder for compelling compliance with more of such records subpoenas in other jurisdictions.