The National College for DUI Defense (NCDD) and the Maryland Criminal Defense Attorneys’ Association (MCDAA) filed an amicus brief late last month authored by attorney Leonard R. Stamm in Motor Vehicle Administration (MVA) v. Deering.
Deering was arrested for DUI and requested to take a breath test. Before submitting she asked to call her lawyer. However, the police department had a policy of not allowing arrestees to call their lawyers before submitting to a breath test. The policy directly contradicts the Court of Appeals‘ holding in Sites v. State that a person accused of drunk driving has a right to contact a lawyer so long as the phone call does not interfere with the State’s ability to conduct the test. Deering submitted to the test and blew a 0.16 At her license suspension hearing for a test of 0.15 or greater her attorney asked the Administrative Law Judge (ALJ) to take “no action” due to the failure to allow her to call her lawyer. The ALJ denied the motion, but was reversed by the circuit court on appeal. The MVA asked the Court of Appeals to hear the case and they agreed to.
The issue in the case is whether denial of counsel can be raised as a defense at an administrative license suspension hearing. The amicus brief raises 6 points.
1. The considerations governing the choice of submitting to or refusing an alcohol test are much more complex now than when Sites was decided in 1984, the consequences of a wrong choice more severe, and the need for counsel greater.
2. The due process right to contact counsel was recognized by this court in Sites primarily due to a potential loss of the ability to earn a livelihood, and the MVA hearing is the only forum where loss of employment or inability to obtain employment can meaningfully be addressed
3. Addressing due process concerns, the legislature amended § 16-205.1(f) to include a requirement that the officer “fully advise” the driver of the administrative sanctions for failing and for refusing the test
4. The practice of raising a Sites based defense at MVA hearings has been firmly entrenched since sites was decided in 1984, and Transp. § 16-205.1 amended in 1989
5. Requiring officers to adhere to Sites does not prejudice the MVA, because the right to counsel by definition does not impair the state’s ability to obtain a chemical test
6. The remedy for denial of counsel should be to take no action, because a driver denied counsel has neither been “fully advised” of the administrative sanctions, nor intelligently and knowingly refused or consented to a test, because it would be fundamentally unfair to suspend the driver’s license of a driver denied due process, and will be perceived by the public as fundamentally unfair.
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.
Leonard R. Stamm
Goldstein & Stamm, P.A.
6301 Ivy Lane, Suite 504
Greenbelt, MD 20770
Author: West’s Maryland DUI Law