The Court of Appeals recently held that even though implied consent to blow is only given by persons who drive or attempt to drive, it is sufficient to suspend a driver’s license or privilege to drive if the officer merely has “reasonable grounds to believe” the person was driving.
The Court of Appeals ruling was based on a provision in the law governing the issues that can be raised at a hearing. It only requires the MVA to show the officer had “reasonable grounds to believe” the person was driving. As it has done in other cases, the Court of Appeals has created two different standards, one for the criminal case, and another for the license suspension hearing.
In the criminal case, the Court has recognized the “stationary shelter” defense. A person may use the car to “sleep it off,” even with the motor on and not be driving, and therefore not be guilty in the criminal case. At the MVA hearing, which is separate from the criminal case, the MVA could satisfy the lesser standard of “reasonable grounds to believe” the person was driving, and the person can lose his or her license or privilege to drive in Maryland for 270 days for a first refusal or two years for a second or subsequent refusal or be required to participate in the ignition interlock program for one year. (Important note – the interlock program only applies to Maryland licensees – out of state drivers are out of luck.).
However, if the person takes and fails the breath or blood alcohol test, the statute governing the issues that can be raised contains an additional issue: “Whether the person drove or attempted to drive a motor vehicle while having an alcohol concentration of 0.08 [or 0.15] or more at the time of testing.” As a result the Styslinger opinion does not preclude the not driving defense where the driver submits to and fails the test.
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
Dean, National College for DUI Defense
Author: 2015 update to Maryland Evidence: State and Federal by Professor Lynn McLain
“Patience, Perseverance, Persuasion”