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).

With all that is going on in the news these days, it is easy to forget the progress we have made. My family and I were on the mall on January 20, 2009 for Barack Obama’s first inauguration. There were people as far as the eye could see to witness the inauguration of this country’s first Black president. We could only get as close as the far side of the Washington monument. But the air was electric and people were optimistic about our future. Here is a video I took that day. https://www.youtube.com/watch?v=CQpGsZyrcc0
Who could have predicted that the backlash that followed would lead to almost half of the country acting in a cult like fashion to deny reality in subservience to an amoral, fascist, megalomaniac, pathological liar and conman or that we would witness a rise in hate crimes and political violence? Or that the president would incite a mob to attack the Capitol on January 6? Today’s Supreme Court decision on affirmative action is part of the backlash. But it won’t last. It has been 2 steps forward and 1 step back for most of this nation’s history. But I prefer the optimistic view. I was also on the mall on January 20, 1993 when Bill Clinton was sworn in and remember hearing him say, “There is nothing wrong about America, that cannot be cured by what is right about America.” I still believe that today. The struggle to make this country a more perfect union continues.
Inauguration

On July 1, 2023, recreational marijuana became legal in Maryland.  Adults over 21 years old are permitted to possess up to 1.5 ounces of marijuana and also to possess two pot plants.  (Two plants is also the limit per household).  With these changes it is important to remember that driving while impaired by marijuana is still a crime and a person who refuses a breathalyzer or after being examined by a so-called “drug recognition expert” refuses a blood test, can have his or her driver’s license suspended.

These drug recognition experts can be challenged on the ground that their testimony is insufficiently reliable to be considered by a court.  As noted in an op-ed by Regi Taylor in the Baltimore Times on July 1,

Greenbelt-based attorney, Lenny Stamm, takes issue with the “scientific reliability” of methods used to identify suspected impaired drivers, particularly “assessments conducted by the state’s Drug Recognition Experts.” Stamm is an author and recognized national authority in his field, conducting seminars and lecturing widely on the DUI topic.

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 

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.

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).

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.

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.

I am relieved.  I think that’s the right word.  Make no mistake a fascist minority attempted to take over our country.  Should I list the most outrageous things that were either said by Trump or Maga Republicans, overtly proposed or covertly suggested, and not condemned, that were rejected in the most recent election:

  • No – Obama was not born in Kenya
  • The Muslim ban was beyond offensive to American values

I lost another client three weeks ago. Not even 60 years old.  Perhaps I should have anticipated this.  The signs were there.  He had two accidents within a few years and very high BACs.  I mean VERY high.  But I believed him when he told me he had been in rehab for 28 days and sober for over a year.  When I saw him in court this spring he seemed sober.  I never noticed any indication if he was still drinking.  Yet when he went to jail for a week his ex-wife called me to say she had  been receiving bizarre texts from him in the jail.  But when I called the jail they said he had been released.  He apparently ended up in the hospital.  Did he end up in the hospital because he went into withdrawal in the jail?  He denied that when I last saw him in July. He minimized what I had heard from his ex-wife and convinced me everything was fine.  It wasn’t.  I think he just wanted the government to leave him alone.  Three weeks ago I found out he died in a fall.

While the vast majority of DUIs do not involve people as sick as my client apparently was, I recommend an appropriate level of education/treatment for all my clients.  If you can’t stop drinking – get help.

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