Legislation

April 15, 2024

Commercial drivers with CDLs hurt by new Maryland DUI law

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.

April 9, 2024

Ignition Interlock is Coming for You

by Goldstein & Stamm, P.A.

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.

September 13, 2023

Do you have to get an interlock in Maryland for a DWI? Some judges say yes. I say no.

by Goldstein & Stamm, P.A.

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).

May 4, 2023

The Maryland Criminal Defense Attorneys’ Association presents the 19th Annual Advanced DUI Defense Seminar

by Goldstein & Stamm, P.A.

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

April 26, 2023

New problems with breath test operators in Maryland after October 1, 2022

by Goldstein & Stamm, P.A.

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.

April 1, 2023

Maryland legislature passes on interlock for all DUIs bill

by Goldstein & Stamm, P.A.

A few years ago, the Maryland legislature reacted to the tragic death by a drunk driver of Noah Leotta by enacting Noah’s Law. The supporters of Noah’s law increased penalties and closed some loopholes in Maryland’s DUI laws but failed to achieve one objective. The legislature did not agree that every first offender who gets a DUI should be required to have an interlock installed in their car for a minimum of 6 mos. The proponents of this measure have made annual attempts to impose this requirement. This year that attempt took the form of House Bill 451 and Senate Bill 528. As a representative of the Maryland Criminal Defense Attorneys’ Association, Leonard Stamm filed written objections to the proposal and testified against the bills before the Senate Judicial Proceedings Committee on March 10, 2023.

There are a number of objections to the bill that were detailed in the letter submitted to both the House Judiciary Committee and the Senate Judicial Proceedings Committee.

My name is Leonard R. Stamm, appearing on behalf of the Maryland Criminal Defense Attorneys’ Association. I have been in private practice defending persons accused of drunk driving and other crimes for over 38 years. I am author of Maryland DUI Law, and of all post 2013 updates to Maryland Evidence: State and Federal, both published by Thomson-Reuters. I am currently a Fellow (former Dean) of the National College for DUI Defense, a nationwide organization with over 1500 lawyer members. I am a former president of the Maryland Criminal Defense Attorneys’ Association. I have co-authored amicus briefs filed by the National Association of Criminal Defense Lawyers and the National College for DUI Defense in the Supreme Court cases of Bullcoming v. New Mexico, 564 U.S. 647 (2011), Missouri v. McNeely, 569 US 141 (2013), and Birchfield v. North Dakota, 579 US __, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016).

February 2, 2023

Responsibility for breath and blood testing taken from the ME and shifted to MSP

by Goldstein & Stamm, P.A.

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.

June 26, 2022

My thoughts on Dobbs v. Jackson Women’s Health

by Goldstein & Stamm, P.A.

Here are a few thoughts on our future after Dobbs.

1. I have always viewed Roe v. Wade as a compromise – an attempt to settle the dispute between those who favor and oppose choice. It was the middle position, giving preference to choice during the first trimester, and against choice in the third trimester, and balancing the interests during the second trimester. This was later adjusted to viability in Casey and requiring laws not to impose an “undue burden” on choice before that point. Dobbs says a prohibition of abortion survives because there is a rational basis for the legislature to believe the ban supports legitimate state interests. Here are some options for restoring the Roe/Casey compromise.

2. Pass the Equal Rights Amendment. This would allow an end run around Dobbs, recognizing women’s rights, and require the use of the much tougher strict scrutiny test. To pass strict scrutiny, the legislature must have passed the law to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest.

January 24, 2019

Daily Record: “Md. lawmakers plan bill to close ‘Noah’s Law’ loophole”

by Goldstein & Stamm, P.A.

As the Daily Record reported yesterday (Jan. 23, 2019), a bill will be introduced in the Maryland legislature to expand Noah’s Law (named after Noah Leotta – a police officer killed by a drunk driver) to require an ignition interlock be installed as a condition of a probation before judgment. Currently, first offenders who blow a .15 or higher, or refuse to submit to a breath or blood test are required to obtain an ignition interlock for one year or have their licenses suspended for 180 or 270 days respectively (for a first test failure or refusal). If the driver submits to a test with a result of .08 or more but less than .15, the 180 day interlock is optional. That person may elect instead to drive with a permit that allows driving for work, school, medical, or alcohol education restricted driving privileges. Currently, some first offenders escape the interlock where they win the MVA hearing for a test failure or refusal, or if they have an out of state driver’s license.

There are some significant problems with the proposal, such as dealing with individuals who share cars with family members, who don’t own a car, who have to drive clients to earn a living or who live out of state. Currently, out of state drivers are not allowed to participate in Maryland’s ignition interlock program. This can be a devastating problem for drivers who live out of state and work in Maryland. Additionally, the law would deprive judges of the discretion to deny interlock in an appropriate case. This was the decision the legislature made a few years ago when Noah’s Law was enacted. Also commercial drivers are not allowed to drive commercial vehicles while their licenses are restricted in this way.

As the Daily Record reported:

March 2, 2018

SB722 and HB1205 withdrawn after testimony from Stamm and others!

by Goldstein & Stamm, P.A.

Many people will remember the nurse in Utah who refused to draw blood in a DUI case under directions from a police officer and was arrested. She subsequently settled a lawsuit for $500,000 and the officer was fired. As a result the Utah legislature tried to fix the problem.

In Anne Arundel County doctors and nurses have also refused to follow illegal directions from police officers. In response, bills were introduced in the Maryland Senate and Maryland House of Delegates to try to fix the problem. The bill would require qualified medical persons to withdraw blood where the driver did not consent to a test after an officer developed reasonable grounds (defined as reasonable articulable suspicion) to believe a person was driving while impaired by alcohol or drugs and there was an accident resulting in a fatality or life threatening injury.

The problem is that the Supreme Court has held in two cases, Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) and Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), that before police may direct a qualified medical person to withdraw blood the officer must have probable cause and a warrant, unless an exception to the warrant requirement such as exigent circumstances or consent exists. However, not every case involving a fatal or life threatening injury will involve exigent circumstances.