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Borbon (not bourbon) to the rescue

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Image from National Institute of Standards & Technology.

When I attended my first National Asssociation of Criminal Defense Lawyers Meeting in 1991 — about to transition from corporate law to the Maryland Public Defender’s Office three months later — I wondered why so many highly talented lawyers there practiced drunk driving defense. I figured that more of them would be handing major felony defense.

As it turns out, the vast majority of felony defense is handled by public defender and court-appointed counsel, as is the case with all criminal defense cases. Because driving is so crucial to so many people’s livelihoods, a substantial number of people who qualify for indigent defense hire private lawyers. I point that out not out of disrespect to public defender lawyers, but as a reality.

My own extensive defense of those accused of drunk driving goes well beyond economics to some of the cores of civil liberties, including the extensive Fourth Amendment violations caused by police trolling for possible drunk drivers, the shamefulness of a criminal justice system that punishes for blood alcohol levels as tiny as 0.08, and the shamefulness of a criminal justice system that annoints the error-ridden breathalyzer machines.

Related to drunk driving defense in criminal court is representation of drivers at parallel administrative hearings that threaten to remove their driving privileges for long stretches of time.

I recently won such a Maryland administrative hearing that sought to yank my client’s driving privileges for four months for allegedly refusing to blow into the Intox EC/IR II breathalyzer machine. As usual, the opposing Motor Vehicle Administration sent no witnesses no lawyer on its behalf, and merely submitted documents mainly consisting of my client’s signature agreeing to take the test, police officer’s brief recitation of what happened on the scene, and the claim on the officer’s report that my client provided insufficient breath to provide a result on the machine.

At my client’s administrative hearing, I pointed out to the administrative law judge that nothing in the evidence showed that my client intentionally tried to frustrate the breathalyzer testing process. Also, I pointed out that he could have been offered a blood test, which he was not, when he was unable to blow sufficiently into the machine.

I won the hearing, with the help of Borbon v. MVA, which confirms that the mere inability to provide a sufficient breath is not enough to determine an effective refusal to provide a blood alcohol sample. Borbon v. MVA, 345 Md. 267, 691 A.2d 1328 (1997).