DUI Update Sept. 2011 – What have they done to us this year?!

In the past year there have been a number of developments in the area of DUI law in Maryland, and most of them favor the State.

The Court of Appeals has issued a number of decisions favoring the MVA. In Hill v. Motor Vehicle Admin., the Court of Appeals rejected an argument that the DR-15 was misleading to drivers holding a commercial drivers license (CDL) because the form was claimed to not advise CDL holders that if they refused a breath test the interlock option would not available in lieu of the disqualification of the CDL. In Najafi v. Motor Vehicle Admin., although the Court of Appeals held that Najafi’s right to counsel was not violated, it said in dicta that a claim of a violation of the right to call a lawyer before deciding whether to submit to a breath or blood alcohol test cannot be litigated at an MVA hearing. In Motor Vehicle Admin. v. Loane, the Court of Appeals construed the plain language of Transportation Article, § 16-205.1(a)(2), that the implied consent law does not apply on purely private property. The Court held that despite this plain language that the implied consent law does apply on purely private property and that the issue cannot be raised in defense at an MVA implied consent hearing. In Thomas v. Motor Vehicle Admin., the Court of Appeals held that the “detention” referred to in § 16-205.1 is not required to be an arrest. In Motor Vehicle Admin. v. Aiken, the court held that the MVA need not produce the test strip or form Notification of Test Result, if the breath operator noted the test results under oath on the DR-15A Form. The court held that the MVA did not need to show in its prima facie case that the test had been administered with equipment approved by the toxicologist, because approval by the toxicologist was not listed as an issue that could be considered at the hearing under § 16-205.1(f)(7) of the Transportation Article. In Headen v. Motor Vehicle Admin., the Court of Appeals held that under § 12-111(b)(2) of the Transportation Article the MVA could designate drunk driving offenses as confidential after five years and deny expungement as to those convictions. The Court also held that a driver who is refused a drivers license due to an out-of-state suspension or revocation is not entitled to an administrative hearing to contest the refusal.

In Motor Vehicle Admin. v. Shea, the Court of Appeals reviewed the question of what constitutes reasonable grounds to support the detention at an MVA hearing. The facts included the officer’s statement concerning a moderate odor of an alcohol beverage on the driver’s breath and that the driver submitted to standardized field sobriety tests. An administrative law judge took action against Shea’s license. On appeal, in response to Shea’s argument that the DR-15 Form provided insufficient reasonable grounds, the circuit court ruled for Shea but held that moderate odor of an alcohol beverage combined with a seatbelt violation was an insufficient basis to conduct field sobriety tests. The circuit court ruled for Shea but held that moderate odor of an alcohol beverage combined with a seatbelt violation was an insufficient basis to conduct field sobriety tests. The Court of Appeals reversed, relying on Motor Vehicle Admin. v. Richards, since the Fourth Amendment exclusionary rule does not apply in MVA hearings. The Court also avoided deciding whether a moderate odor of an alcohol beverage alone could constitute reasonable grounds to support a detention to take a test, since the Court found that there was substantial evidence to support the finding of reasonable grounds, namely that the ALJ could have inferred on this record that Shea failed the standardized field sobriety tests.

Effective October 4, 2010, the Toxicologist’s Regulations were replaced with new regulations codified at COMAR 10.35.02. Included among the changes are these: the regulations tightened the accepted level of uncertainty to .005 of the reported result or 10% of the average measurements, whichever is greater – COMAR 10.35.02.03C; and, the regulations provided that the breath test operator need not solely conduct the 20 minute observation period if a different officer conducted part of the observation – COMAR 10.35.02.08G.

The legislature enacted two significant bills effective on October 1, 2011. In Chapter 334, the legislature created the new crime of criminally negligent manslaughter. This 3 year misdemeanor requires that the defendant’s criminally negligent driving caused the death of another. Criminally negligent driving requires more than simple negligence but less than gross negligence. The driver’s failure to perceive the risk of death must be a “gross deviation from the standard of care that would be exercised by a reasonable person.”

In Chapter 556, the legislature expanded the use of the ignition interlock and made it mandatory in the case of a driver who: is required to participate by a court order; is convicted of driving while under the influence of alcohol or under the influence of alcohol per se and had a blood alcohol concentration (BAC) at the time of testing of 0.15 or greater; is convicted of driving while under the influence of alcohol, under the influence of alcohol per se, or while impaired by alcohol and within the preceding five years was convicted of any specified alcohol and/or drug-related driving offense; or was younger than age 21 and violated the alcohol restriction imposed on the driver’s license or committed the specified alcohol-related driving offense. If the driver violates the interlock restriction they will be terminated from the program and have to serve a new suspension, which is a minimum of 45 days, before again being required to successfully complete the program for the required time period (without credit for time served). The legislature left unmentioned what will happen to out-of-state drivers who are not eligible to participate in the Ignition Interlock System Program.