Articles Posted in Breath testing

by

The new interlock bill passed by the legislature, and coming to a court near you on October 1, 2024 will hurt many commercial drivers who find themselves facing DUI charges for what they did in their personal vehicles.  A commercial driver’s license (CDL) is an addition to a regular driver’s license and is required to drive commercial vehicles (basically the big 18 wheelers, limos, and buses).

A commercial driver with a CDL faces a one year disqualification of the CDL if convicted of driving under the influence of alcohol or if found to have refused a breath test.  For many of these drivers a disqualification can be devastating as most of them will lose their jobs.  The legislature had previously passed an exemption if the driver was found guilty of driving while impaired under Transportation Article, § 21-902(b) as opposed to driving under the influence under § 21-902(a) it would not result in a disqualification.  Probations before judgment (PBJs) are considered convictions under the CDL laws so that doesn’t help.

There was a problem on the administrative side though, for CDL drivers that didn’t refuse, and blew .15 or more, the choice is either a six month suspension or one year on an ignition interlock.  However, if the CDL defendant blew .08 or more but under .15, while facing a 6 month suspension, 6 month on interlock or 6 month work permit.  All of these choices would result in a lost job because any restriction other than alcohol or glasses/contacts, is incompatible with a CDL.  However,  those CDL drivers that blew .08 or more but under .15, could conceivably get a reprimand from an administrative law judge (ALJ) at the MVA hearing, basically a warning that would go on their driving record but with no real consequence.  However, even if convicted under § 21-902(b) and facing a possible suspension at the MVA, the ALJ still had discretion to impose only a reprimand.

Continue reading

by

The Maryland Legislature has approved a bill, effective on October 1, 2024, part of “Noah’s Law,” that will require all licensees receiving probation before judgment fro driving under the influence or impaired by alcohol in Maryland to successfully complete the Ignition Interlock System Program before obtaining any further driving privileges.  While most of the people found guilty of driving under the influence of alcohol or driving while impaired have already gone through the interlock program by virtue of refusing or failing a breathalyzer test, there has been an out for people who either take the suspension, get a work permit, or win the administrative hearing before court.  Now those few will have to get an interlock if they receive probation before judgment in court  and were arrested on or after October 1, 2024.

It appears this does not apply to out-of-state drivers.

If you have been charged with a DUI or DWI, and do not want the interlock, you will have to fight your case in court.

Continue reading

by

I recently handled a sentencing for a client of mine for driving while impaired (DWI).  Under Maryland law, one year of ignition interlock is required if you are convicted of the higher offense, driving while under the influence of alcohol (DUI).  However, the relevant statutes do not require it for DWI, unless the “trier of fact finds beyond a reasonable doubt that the person refused to take a test arising out of the same circumstances as the violation.”  More often than not, in Maryland, a driver who refuses a breathalyzer test at the time of arrest if found guilty of anything, will not be found guilty of the higher offense DUI, only the lower DWI.  So the question is what does this phrase mean, that the “trier of fact finds beyond a reasonable doubt that the person refused to take a test arising out of the same circumstances as the violation.”

The answer can be found in Wadlow v. State, 335 Md. 122, 642 A.2d 213 (1994).  In Wadlow, the indictment charged the defendant with possession with intent to distribute more than 448 grams of cocaine but it did not refer to the sentencing enhancement under Art. 27, § 286 (f).  Also, the jury was never asked to decide the amount of cocaine.  As a result the Maryland Supreme Court reversed the part of the sentence that relied on possession of more than 448 grams.  The Court said:

In Maryland, however, we have generally drawn a distinction between sentence enhancement provisions that depend upon prior conduct of the offender and those that depend upon the circumstances of the offense. In the former situation, involving recidivism, we have made it clear that determination of the requisite predicate facts is for the sentencing judge. See Maryland Rule 4–245(e) (“[T]he court shall determine whether the defendant is a subsequent offender….”). The State must give timely notice to the defendant of its intention to seek enhanced penalties because of one or more prior convictions, but that notice is not filed with the court until after the acceptance of a guilty or nolo contendere plea, or after conviction. The applicable Rule also provides that “[t]he allegation that the defendant is a subsequent offender is not an issue in the trial on the charging document….” Md.Rule 4–245(d).

Continue reading

by

On May 5, 2023, the Maryland Criminal Defense Attorneys’ Association is holding its 19th Annual Advanced DUI Defense Seminar at the Doubletree Hotel in Linthicum, Maryland.

The seminar, organized and run by Leonard R. Stamm in conjunction with the MCDAA will feature presentations by experienced lawyers as well as an expert chemist.  The schedule is shown below.  If your lawyer attends this program, he or she is getting the most up to date training available for how to handle DUI cases.

MCDAA’S 19th Annual Advanced DUI Defense Seminar 

Continue reading

by

It has recently come to our attention that the approval required for breath test operators in Maryland changed with the below statute, Courts and Judicial Proceedings Article, § 10-304, effective on October 1, 2022.

“Qualified person” means a person who has received training in the use of the equipment in a training program approved by the toxicologist in the Department of State Police Forensic Sciences Division and who is either a police officer, a police employee, or a person authorized by the toxicologist in the Department of State Police Forensic Sciences Division.

Only a “qualified person” is allowed to conduct a breathalyzer test in Maryland.

Continue reading

by

The Washington Post recently ran a story by reporter Dan Morse about testing volunteers high on weed to practice the tests they run when they suspect a driver is impaired by marijuana.  The story quoted attorney Leonard R. Stamm.

Such drug impairment tests are regularly challenged in court across the country.

“There are real questions about the scientific validity of what they’re doing,” said Leonard R. Stamm, a longtime defense attorney and author of “Maryland DUI Law,” which devotes more than 30 pages to defending drugged driving cases.

Continue reading

by

In legislation enacted last year, the legislature amended statutes governing breath testing in Maryland, effective October 1, 2022.  Previously, relevant statutes delegated to the toxicologist under the Post-Mortem Examiner’s Commission in Baltimore, the responsibility for approving equipment used for blood and breath testing in Maryland.   The new law transfers that authority to “the toxicologist in the Department of State Police Forensic Sciences Division.”

At this point it is unknown how this shift will affect the admissibility of breath tests conducted after October 1, 2022, as these cases are just starting to get litigated.  The toxicologist under the Post-Mortem Examiner’s Commission drafted regulations and procedures governing the approval of equipment for use in breath and blood testing in DUI cases.  For tests occurring between October 1 and December 31, 2022, the new toxicologist simply wrote a letter extending the approvals previously issued by the former toxicologist.  Whether this passes muster in court is yet to be determined.  Arguably, once the legislature made the change, the new toxicologist could do anything except that as the legislature determined that the former toxicologist in charge of testing not make those decisions.  Rather, the new toxicologist needs to develop procedures the assure the reliability and accuracy of breath and blood testing.  Time will tell whether the new toxicologist will take the independent action to approve the equipment being used the legislature arguably requires.

For now, it is critical that defense lawyers request all available discovery from the State to evaluate whether the State has complied with the new laws requiring the toxicologist in the Department of State Police Forensic Sciences division to approve the equipment used in breath and blood testing in Maryland.

Continue reading

by

Earlier this week, the Maryland Court of Appeals agreed to hear the case of Dejarnette v. State.  In Dejarnette, the Maryland Court of Special Appeals held that a violation of the requirement that officers observe a defendant for 20 minutes before a breath test would only go to the weight to be given to the violation, as opposed to its exclusion.  Dejarnette, represented by the Public Defender’s office, filed a petition for a writ of certiorari, asking the Court of Appeals to take the case.  Dejarnette was joined by the National College for DUI Defense and the Maryland Criminal Defense Attorneys’ Association, who filed an amicus brief in support of the petition, written by Leonard R. Stamm and others.

Dejarnette will be arguing that a violation of the 20 minutes observational requirement should result in the exclusion of the breath test from evidence, as the 20 minute requirement is an essential component of an accurate and reliable breath test.

by

Recent articles in the New York Times have raised questions about the reliability of breath testing devices used across the country in DUI cases.  These Machines Can Put You in Jail.  Don’t Trust Them  and 5 Reasons to Question Alcohol Breath Tests.  The authors also interviewed a defense lawyer and defense expert in NPR, and heard from other persons connected with the breath testing process including an officer and a defendant. Blown Away: Why Police Rely On Faulty Breathalyzers.

Breath testing is used to estimate a level of alcohol in the person’s blood.  Breath testing relies on an assumption that a persons breath can contain alcohol in roughly a 1/2100 ratio of the alcohol in the breath to the alcohol in the blood.  There are numerous other assumptions as well, highlighted in an article by Leonard R. Stamm, and published in the magazine of the National Association of Criminal Defense Lawyers, the Champion, titled The Top 20 Myths of Breath, Blood and Urine Testing.

The New York Times articles highlight some of the problems that have plagued the government’s efforts to prosecute drunk driving cases.  This includes problems with calibration, maintenance of the machines (officers insist on calling them “instruments”), the controls that are used, the adequacy of the procedures used to test individuals, failures in record keeping, secrecy in computer codes, human errors and others.

Continue reading

by

Every state prohibits drunk driving.  Every state also acknowledges that it is legal to drink alcohol and then drive if the alcohol consumed does not impair one’s abilities.

The amount of alcohol that a person can drink in an evening and be safely under the legal limit varies from person to person.  The main factors of weight, number of drinks, size of the drink, concentration (proof) of the alcohol, gender, and time of drinking all affect the outcome.  In the 1930’s a Swedish scientist named Erik Widmark came up with a formula to calculate blood alcohol concentration (BAC) based on these factors.  Using Widmark’s formula, it is possible to estimate BAC.   In these calculations, there is a rough equivalence between a 12 oz. beer, and 6 oz. glass of wine, and a mixed drink containing 1.5 oz. of alcohol.

A woman will have a higher BAC than a man of the same weight because alcohol is more concentrated in the cells of a female.   Since many women weigh less than many men, this difference is exaggerated with most people.

Continue reading
Contact Information
Capital Office Park
6301 Ivy Lane # 504
Greenbelt, Maryland 20770
Phone: 301-345-0122
Toll Free: 800-256-8172
Fax: 301-441-4652

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2024, Goldstein & Stamm, P.A.
JUSTIA Law Firm Blog Design