Articles Posted in Breath testing

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).

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.

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.

Earlier this week, the Maryland Court of Appeals agreed to hear the case of Dejarnette v. State.  In Dejarnette, the Maryland Court of Special Appeals held that a violation of the requirement that officers observe a defendant for 20 minutes before a breath test would only go to the weight to be given to the violation, as opposed to its exclusion.  Dejarnette, represented by the Public Defender’s office, filed a petition for a writ of certiorari, asking the Court of Appeals to take the case.  Dejarnette was joined by the National College for DUI Defense and the Maryland Criminal Defense Attorneys’ Association, who filed an amicus brief in support of the petition, written by Leonard R. Stamm and others.

Dejarnette will be arguing that a violation of the 20 minutes observational requirement should result in the exclusion of the breath test from evidence, as the 20 minute requirement is an essential component of an accurate and reliable breath test.

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.

As the Daily Record reported yesterday (Jan. 23, 2019), a bill will be introduced in the Maryland legislature to expand Noah’s Law (named after Noah Leotta – a police officer killed by a drunk driver) to require an ignition interlock be installed as a condition of a probation before judgment.  Currently, first offenders who blow a .15 or higher, or refuse to submit to a breath or blood test are required to obtain an ignition interlock for one year or have their licenses suspended for 180 or 270 days respectively (for a first test failure or refusal).  If the driver submits to a test with a result of .08 or more but less than .15, the 180 day interlock is optional.  That person may elect instead to drive with a permit that allows driving for work, school, medical, or alcohol education restricted driving privileges.  Currently, some first offenders escape the interlock where they win the MVA hearing for a test failure or refusal, or if they have an out of state driver’s license.

There are some significant problems with the proposal, such as dealing with individuals who share cars with family members, who don’t own a car, who have to drive clients to earn a living or who live out of state.  Currently, out of state drivers are not allowed to participate in Maryland’s ignition interlock program.  This can be a devastating problem for drivers who live out of state and work in Maryland.  Additionally, the law would deprive judges of the discretion to deny interlock in an appropriate case.  This was the decision the legislature made a few years ago when Noah’s Law was enacted.  Also commercial drivers are not allowed to drive commercial vehicles while their licenses are restricted in this way.

As the Daily Record reported:

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.

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