COVID-19 Update: How We Are Serving and Protecting Our Clients

Articles Posted in Alcohol/Drugs education and/or treatment

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 

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.

We have noticed lately what seems like an extraordinary number of referrals to the MAB.

When anyone suspects that a driver may have a physical or mental condition that would affect their ability to drive, he or she may refer that person to the Medical Advisory Board (MAB) of the MVA.[1]  Initially, the referral goes to the Division of Driver Wellness & Safety (DW&S).[2]  DW&S sends the person a series of questionnaires that must be completed and returned as well as consent forms for the driver to allow the MVA to obtain reports from the driver’s physician and relevant treatment programs, detailing the condition, diagnosis, prognosis, treatment, and any medications they have been prescribed. 

After receiving the information, DW&S may take a number of actions.  Parameters are set forth in COMAR § 11.17.03.04 for how to respond to specified medical conditions to guide the MVA’s determination.  DW&S may further refer the person to the MAB for review by a physician.[3]  The Medical Advisory Board makes recommendations to the MVA when individuals are referred to the MAB and a certain physical or mental condition is indicated.[4]

On this Veteran’s Day we pay tribute to the over 17 million veterans in the US today.  These are men and women who have personally sacrificed to preserve our freedoms, and the great experiment in republican democracy that has survived for over 225 years since the adoption of the US Constitution in 1788.  The genius of the US Constitution is the separation of powers between three branches of government, and between the federal government and the states.  With the addition of the Bill of Rights, we are very fortunate to have a representative government, that respects individual liberties.

Our firm is sensitive to the needs of veterans with links to websites that cater to veterans’ needs.  https://www.lstamm.com/veteran-s-resources.html

In recognition of the sacrifices made by veterans, our firm offers reduced fees to many veterans seeking representation for a traffic or criminal matter.

Updated September 30, 2022.  As many of you are aware, courts and the MVA are now open.  Court hearings are back to normal for the most part, except that there is a backlog of cases that were postponed or delayed during the pandemic.  Some District Courts have two am and pm dockets.  Most have a single morning and single afternoon docket.  Face masks are now optional.  All MVA hearings are virtual for the time being – on the web-x platform.   Those of you who are facing DUI or other traffic charges and/or license suspension hearings need to know what is going on with your cases.  If you need to obtain a new driver’s license or modify it, you need to make an appointment at the MVA.

One thing you can always do is check the status of your court cases on Maryland Judiciary Case Search.  You can click on the link or google it.  Click the disclaimer.  Put in your last and first name and click.  Your tickets should be listed.  If you have a common name and the search results take more than one page, you can click on the filing date tab twice, and the most recent cases filed will be listed first.  You can also limit your search by checking the county where the charges were filed, and in most traffic cases, select District Court.  On the left side, the ticket or case numbers are listed and you will be able to see information about your case by clicking on the case number.  If you have a court date, it should be on the page.

If you have recently been arrested, and you either refused a breath or blood test, or failed one, the officer seized your license and gave you a temporary license that allows you to driver for 45 days.  If you asked for a hearing you can drive until your hearing.  If you want a hearing, you should send the hearing request to the Hunt Valley address indicated by certified mail, return receipt requested, with a check for $150 made payable to the Maryland State Treasurer.  This must be sent within 30 days of the issue date on the Order of Suspension, also included on the temporary license form.  If you elect to participate in the ignition interlock program without a hearing, read the next paragraph.

Recent articles in the New York Times have raised questions about the reliability of breath testing devices used across the country in DUI cases.  These Machines Can Put You in Jail.  Don’t Trust Them  and 5 Reasons to Question Alcohol Breath Tests.  The authors also interviewed a defense lawyer and defense expert in NPR, and heard from other persons connected with the breath testing process including an officer and a defendant. Blown Away: Why Police Rely On Faulty Breathalyzers.

Breath testing is used to estimate a level of alcohol in the person’s blood.  Breath testing relies on an assumption that a persons breath can contain alcohol in roughly a 1/2100 ratio of the alcohol in the breath to the alcohol in the blood.  There are numerous other assumptions as well, highlighted in an article by Leonard R. Stamm, and published in the magazine of the National Association of Criminal Defense Lawyers, the Champion, titled The Top 20 Myths of Breath, Blood and Urine Testing.

The New York Times articles highlight some of the problems that have plagued the government’s efforts to prosecute drunk driving cases.  This includes problems with calibration, maintenance of the machines (officers insist on calling them “instruments”), the controls that are used, the adequacy of the procedures used to test individuals, failures in record keeping, secrecy in computer codes, human errors and others.

Every state prohibits drunk driving.  Every state also acknowledges that it is legal to drink alcohol and then drive if the alcohol consumed does not impair one’s abilities.

The amount of alcohol that a person can drink in an evening and be safely under the legal limit varies from person to person.  The main factors of weight, number of drinks, size of the drink, concentration (proof) of the alcohol, gender, and time of drinking all affect the outcome.  In the 1930’s a Swedish scientist named Erik Widmark came up with a formula to calculate blood alcohol concentration (BAC) based on these factors.  Using Widmark’s formula, it is possible to estimate BAC.   In these calculations, there is a rough equivalence between a 12 oz. beer, and 6 oz. glass of wine, and a mixed drink containing 1.5 oz. of alcohol.

A woman will have a higher BAC than a man of the same weight because alcohol is more concentrated in the cells of a female.   Since many women weigh less than many men, this difference is exaggerated with most people.

On Thursday, the nation was transfixed as the Senate Judiciary Committee heard testimony from Dr. Christine Blasey Ford and Brett Kavanaugh.  Kavanaugh has been accused of sexual assault by Ford and a number of other females when they were in high school and college.  All of the complaints say that Kavanaugh was extremely inebriated at the time.  However, when Kavanaugh was asked about his drinking habits he became very defensive and refused to answer the questions, although he did admit to on occasion drinking too much and liking beer.  At all costs, he had to deny his alcoholism, if he suffered from it, because that would lead to questions of whether he drank to the extent of experiencing blackouts, a symptom of heavy drinking, where the person has no memory of their conduct while drunk.  If he experienced blackouts, then his denials would be much less credible.  Although the senators’ questions for the most part avoided touching on his alcoholism, it appears evident that his alcoholism or lack is central to the case.

In drunk driving cases, all clients represented by attorney Leonard Stamm are referred to a program approved by the Maryland Department of Health and Mental Hygiene to determine if the client has a drinking problem and to receive an appropriate level of education and treatment.  A directory of programs nationwide can be found here.

Clients are assessed to determine if they have a drinking problem using a number of psychological screening tests.  The most well known is probably the Michigan Alcohol Screening Test also known as the MAST test.  Clients are give a score based on their answers.  A higher score indicates a likely drinking problem.  Other tests include the Alcohol Use Disorders Test or AUDIT test.

On Wednesday, September 12, 2018, Leonard Stamm appeared in the Court of Appeals to argue the case of Owusu v. MVA.  Owusu was arrested for drunk driving and taken to the police station.  At the police station he was read the DR-15 Advice of Rights Form.  This is a form police officers are required to read to DUI suspects advising them of the penalties for refusing or failing a breath test for alcohol.  In Owusu’s case he was read the form and told that if he failed the test he would lose his driver’s license for 180 days, but that if he refused he would lose his license for 270 days.  Additionally he was told that since he had a commercial driver’s license or CDL, that if he refused the test his CDL would be disqualified for one year.  The one year disqualification meant that he not be able to perform his job as a bus driver for one year.

Immediately after reading the form, that contained a lot of other information as well, to Owusu, the officer tried to be helpful.  He told Owusu that since he was a bus driver he would be out of work for 180 days if he failed the test and 270 days if he refused.  Although probably well meaning, the officer’s statement was false. Critically, the officer did not tell Owusu he would be out of work for one year if he refused as a result of the one year disqualification of his CDL.  The one year disqualification was huge because it means Owusu will have to retake the CDL knowledge and skill tests with it, but not with a 270 day suspension.  Owusu testified at the hearing that after the officer advised him, he was not aware he would lose his CDL, and that, if he had he would have submitted to the test.

As Stamm had argued in the MVA hearing and again in the Montgomery County Circuit Court without success that the giving of the false advice failed to comply with the relevant law requiring the arresting officer to “fully advise” the driver of the administrative penalties and also violated Owusu’s due process rights.  Stamm also unsuccessfully argued in the hearing and appellate court that the DR-15’s form’s advice of a 270 day suspension on a refusal, and eligibility for a restricted license, without telling drivers that the required period of interlock restriction is longer, one year, violated his statutory and due process rights.

Contact Information