Maryland DUI Lawyer Blog

Today the Supreme Court heard oral argument in the cases of Birchfield v. North Dakota, 136 S.Ct. 614 (2015); Bernard v. Minnesota, 136 S.Ct. 615 (2015); and Beylund v. Levi, 136 S.Ct. 614 (2015).

Leonard R. Stamm, along with Donald Ramsell and Jeff Green, co-authored an amicus brief filed on behalf of the National College for DUI Defense and the National Association of Criminal Defense Lawyers, in these three cases on February 11, 2016.

The issue in the case was whether a state may make it a crime to refuse a warrantless breath test, or put differently to exercise one’s constitutional right to require the state to comply with the Fourth Amendment.   Maryland has a sentencing enhancement of up to 60 days that may apply if a person is found by a judge or jury to have knowingly refused a test.  The National Park Service, which controls a number of roads in Maryland, including the Baltimore-Washington Parkway, has a regulation, 36 CFR § 4.23(c) that makes it a crime to refuse a breath test, with a maximum penalty of 6 months in jail and a $5,000 fine.  In both state and federal DUI cases, a suspect is told there is a possible jail sentence if he or she refuses to submit to a breath test.  As a result, every breath test in state and federal court in Maryland is subject to a motion to suppress alleging that giving that advice is coercive and in violation of the Fourth Amendment.

If you have been following the news lately you have heard that Maryland has joined the states that require interlocks in all DUI cases, even for first offenders blowing under 0.15.  For example, see Md. lawmaker: Slain officer Noah Leotta ‘is still on the job’ in the Washington Post.  However a close examination of the record reveals over 50 changes to the original version of Noah’s law contained in the Conference Committee Report.

A key provision in contention would have required a first offender with a test result of 0.08 or higher but less than 0.15 to get an ignition interlock for 90 days.   The House had rejected that provision.  However, that provision was contained in the third reading of the Senate Bill 945.  (The House and Senate had both already stricken a provision requiring defendants charged with DUI or DWI but only convicted of reckless or negligent driving to get an ignition interlock).  In the end, the House and Senate Conference Committee compromised.  They increased the length of the suspension to 6 months, but reinstated a provision that allows alleged offenders to request a hearing to get a permit that allows driving for employment, alcohol education, education or medical purposes for the licensee or family members, without obtaining an ignition interlock in the car.  So while a 6 month interlock is an option, it is not a requirement in the new law.  The new law, which takes effect on October 1, 2016 (assuming the Governor signs it), also requires ignition interlock for defendants convicted of drunk driving (for 6 months, one year, or 18 months).  But in Maryland most of them are second offenders, since most first offenders found guilty end up with probation before judgment (PBJ) – not a conviction.

If you are facing criminal or traffic charges in Maryland state or federal court, call Leonard R. Stamm of Goldstein & Stamm, P.A. at 301-345-0122 for a free consultation.

Every breath test in Maryland is subject to suppression.  Every administrative suspension based on a failed breath test should be thrown out.  The reason is – in Maryland there is a potential 60 day enhanced jail penalty for every driver arrested for DUI who refuses to take a breath test.  The question is – can the State put someone in jail for refusing to consent to a search of their body?  Can the State make it a crime, or a sentencing enhancement to refuse to consent to a warrantless search?  And if they cannot, can they comply with due process when they use the threat of jail to induce the person to consent to a breath test?  The answer to these three questions should be NO.

There is a conflict among courts on the issue of whether a State can criminalize refusal to submit to an alcohol test.  If it cannot, then any consent obtained by advising a suspect that refusal is a crime carrying a potential penalty of incarceration is coerced and involuntary as a matter of law.  In Maryland, the DR-15 advice used to obtain consent gives this questionable advice.

This is an important issue currently because on December 11, 2015, the Supreme Court granted certiorari in three cases that raised this issue: Birchfield v. North Dakota, 136 S.Ct. 614 (2015); Bernard v. Minnesota, 136 S.Ct. 615 (2015); and Beylund v. Levi, 136 S.Ct. 614 (2015).  These cases will be argued in the Supreme Court on April 20, 2016.

The Maryland House of Delegates took the courageous step of passing Noah’s Law, HB 1342, with substantial amendments.  The amendments make the bill a much more rational and humane way of encouraging sober driving while not unnecessarily punishing social drinkers or putting them out of work.

The law deals with test failures and refusals before court and the effect of convictions after court.

Under current law a person who submits to a test and has a reading of 0.08 or more and less than 0.15 faces a 45-day suspension for a first offense and 90-day suspension for a second or subsequent offense.  On a first offense or a second or subsequent offense more than five years after the first the suspensions may be modified by an administrative law judge to allow restricted driving for purposes of work, school, alcohol education or treatment, or medical treatment for the licensee or family members.  Noah’s Law changes this to increase the suspension periods from 45 to 90 days and 90 to 180 days.  The proposed law also eliminates the work etc. permit provision and requires these offenders to get an ignition interlock for the period of suspension.  The House amendments restore the work etc. permit but leave the increased length of suspensions in place.

The anti-DUI lobby in Maryland has put together a massive effort to pass HB 1342/SB 942 called the Drunk Driving Reduction Act of 2016 – Noah’s Law, in memory of Montgomery County police officer Noah Leotta, who was killed by a suspected drunk driver last December.  The bill proposes a number of changes to Maryland law.

  • MVA penalties for a test result of 0.08 or more but less than 0.15 would be increased from a suspension of 45 days on a first offense and 90 days on a second or subsequent offense would be increased to 90 and 180 days respectively. Critically, instead of first offenders being able to drive with a permit restricted for work, education, alcohol education, or medical purposes, all of these drivers would be required to install an ignition interlock for this period of time.
  • MVA penalties for a test result of 0.15 or more would be increased from a suspension of 90 days on a first offense and 180 days on a second or subsequent offense would be increased to 180 and 270 days respectively.  Instead of ignition interlock being optional for these offenders, it would now be mandatory.

The Supreme Court today granted certiorari in three cases Birchfield v. North Dakota (14-1468); Bernard v. Minnesota (14-1470); and Beylund v. North Dakota (14-1506).  These cases raise the question left open after the Court’s decision in Missouri v. McNeely, 133 S.Ct. 1552 (2013): can a state make the refusal to submit to a breath or blood test for alcohol a crime, punishable by imprisonment?

Police are presumptively required to obtain a warrant before obtaining a blood test for alcohol.  Missouri v. McNeely, 133 S.Ct. 1552 (2013).  The Supreme Court will now decide whether a warrant is required for a breath test, whether the refusal to consent to a breath or blood test can be made a crime, and whether advice that refusal is a crime carrying a possible jail sentence renders any consent to submit to a breath or blood test coerced and involuntary.  However, relevant authority and review of Supreme Court cases compels an answer of yes – a warrant is required for a breath test, no – a refusal to consent to a breath test cannot be made illegal without violating the Fourth Amendment, and yes, advising a suspect that refusal is a crime punishable by imprisonment renders any consent given coerced and involuntary.

Warrantless searches are presumptively unreasonable.  Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).  Where there is a warrantless search, the government has the burden of proving the legality of the search, that it was conducted pursuant to a recognized exception to the warrant requirement, such as exigent circumstances, consent, and search incident to an arrest.  In United States v. Reid, 929 F.2d 990 (4th Cir. 1991), the Fourth Circuit held that a warrant was not required to conduct a breath test during a DUI investigation because a breath test was a permissible search incident to an arrest and was conducted under exigent circumstances.  However, Reid was overruled by McNeely, to the extent that it relied on exigent circumstances. United States v. Brooks, No. CRIM. PWG-14-0053, 2014 WL 2042028, at *5 (D. Md. May 16, 2014).  The search incident rationale of Reid is also no longer valid due to the Supreme Court decisions in Arizona v. Gant, 129 S.Ct. 1710 (2009) and Riley v. California, 134 S.Ct. 2473 (2014).  The final possible applicable exception to the warrant requirement is consent.  However, where, the “consent” is obtained by a threat of incarceration, the consent is coerced and is not voluntary.  State v. Won, 2015 WL 7574360, — P.3d — (Haw. 2015).

This week Donald Trump, the leading Republican contender for President, proposed banning all Muslims from entering the country, as one of his solutions to deal with ISIS inspired terrorism in the homeland.  This bigoted and anti-American proposal, on top of his anti-Mexican, misogynistic, and crude comments have only enhanced his standing in the polls, to the shame of us all.  His reliance on demonstrably false information to support his claims is no hindrance to him or his followers.  In response, I commend to you a piece by Kareem Abdul-Jabbar in Time Magazine.  His article, What Donald Trump and ISIS Have in Common, explains how Trump’s proposal is against everything we stand for, and is unconstitutional to boot.

We have seen this before.  History has taught us that what starts out as harmful speech targeting a race, religion, or ethnic group, frequently evolves into discriminatory behavior with real consequences to members of the targeted group.  This type of damage has occurred too many times to recount, at its extremes leading to the worst kinds of violence and genocide.  The appeal to emotions, rather than reason, can entice the best of us to do bad things.  That is why we are so fortunate to live in a country governed by the rule of law with constitutionally protected freedoms and rights.

When a sizeable portion of the electorate is impelled by fear or demagoguery to act lawlessly or even to change the laws to target a race, religion or ethnic group, the Constitution provides a brake.  Similarly, when the public’s reaction to crimes impels the State to target an individual who everyone “knows” is the perpetrator or has committed a crime, the law requires evidence, proof beyond a reasonable doubt, and honor to our rules requiring adherence to First, Fourth, Fifth, and Sixth Amendment protections that minimize the risk that an innocent person would be convicted.  Freedom of speech, religion, and assembly, against unreasonable searches and seizures, against compelled self-incrimination, the right to counsel, notice, jury trials, due process and equal protection of the laws protects us all.  Our Constitution minimizes the risk that a lynch mob led by the likes of Donald Trump would ever subvert the fairness and even handedness of our laws or our criminal justice system.  We can only hope that the Constitution continues to protect us as we face new challenges posed by cynical or mindless opponents.

The Hawaii Supreme Court announced its decision today in State v. Won.  The court held that where a suspect in a DUI case is told that it is a crime to refuse to submit to an alcohol test, that consent to submit to the test is coerced and invalid because it is not voluntary.   The Fourth Amendment requires that searches be conducted pursuant to a search warrant or the government must rely on an exception to the warrant requirement.  In most DUI cases, the government relies on consent to justify warrantless breath and blood tests.  However, some jurisdictions have criminalized refusal to submit to a test, providing that refusal can result in a jail sentence.

The Hawaii court said:

Where arrest, conviction, and imprisonment are threatened if consent to search is not given, the threat infringes upon and oppresses the unfettered will and free choice of the person to whom it is made, whether by calculation or effect.30 See id. at 261-63, 925 P.2d at 829-31 (finding that a permissive response to a request to search the defendant resulted only from “inherently coercive” circumstances that were “calculated to overbear [the defendant’s] will”); Pauʻu, 72 Haw. at 508, 824 P.2d at 835 (same). Thus, the threat of the criminal sanction communicated by the Implied Consent Form for refusal to submit to a BAC test is inherently coercive.  [Footnotes omitted].

Today the New York Times featured on its front page a story about a Baltimore woman who had to endure a $25,000 bond, numerous court appearances, a suspended drivers’ license, and 34 days in the Baltimore City Jail for a first offense DUI with a 0.09 BAC reading: On Probation Lives Can Run Far Off Track – A Maze of Fines, Court Dates and Penalties by Shaila Dewan.  The judge assumed the defendant was a problem drinker without first getting an evaluation and ordered three AA meetings a week as well as required permission for her to move.  Failure to request permission before attempting to move was the first alleged violation of probation.  The failure to provide proof of all of the required AA meetings landed her in jail for 34 days with a $5000 bond she couldn’t afford, before she saw a judge.  The judge gave her a conviction which led to a six month driver license suspension.

The article quoted Leonard R. Stamm.

For a woman of Mrs. Hall’s weight, assuming drinks were consumed over a four-hour period, the difference between 0.06, considered “neutral,” and 0.09 would have been about one glass of wine, according to Leonard R. Stamm, a Maryland defense lawyer who specializes in drunken-driving cases.

On Saturday, July 25, 2015, Leonard R. Stamm became the Dean of the National College for DUI Defense. At the annual summer session, held at Austin Hall at Harvard Law School (the College is not affiliated with Harvard Law School, it just rents space), before lunch, Stamm gave the Dean’s Address.  Also in attendance was Professor Alan Dershowitz, who answered questions about the future of the criminal justice system.

The three day summer session featured lectures by Larry Taylor, James Farragher Campbell, Tommy Kirk, Jim Nesci, Joe St. Louis, Mimi CoffeyPaul Homoly, Howard Nations, John Henry Hingson, Scott Joye, Bell Island and Jessica Phipps.   Breakout sessions were also held where students were able to refine their skills on opening statements and cross-examination of police officers.

If you are facing criminal or traffic charges in Maryland state or federal court, call Leonard R. Stamm of Goldstein & Stamm, P.A. at 301-345-0122 for a free consultation.