Articles Posted in Breath testing

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.

Under current Maryland law, if a driver is arrested for a DUI, he or she will be asked to submit to a breath test for alcohol.  If the result is 0.08 or more but less than 0.15, the person faces a driving license or privilege suspension of 180 days.  If at a hearing challenging the suspension, the suspension is sustained, the Administrative Law Judge (ALJ) holding the hearing has discretion to allow the driver to drive to and from or during the course of employment, alcohol education, education, and for medical purposes for the driver or family members.  If the driver blows .15 or more, the suspension is also 180 days for a first offense and 270 days for a subsequent offense, but the only option for the ALJ is to allow the driver to drive  only with an ignition interlock in the car for one year.  Similarly, if the driver refuses to take a test, the penalty on a first offense is 270 days or two years for a subsequent offense, and the ALJ can only allow the driver to drive with an ignition interlock in the car for one year.

Although these suspensions may be challenged at an administrative hearing, if the challenge fails, the ALJ’s options are limited as noted above.  However, the Maryland Motor Vehicle Administration does not allow out of state drivers to participate in the Ignition Interlock System Program.  This critically affects drivers who live outside of Maryland but work here.  The only option is to challenge the suspension, and appeal any defeats.  But if that effort fails, the driver is SOL.

Hopefully the legislature will remedy this situation soon.  Stay tuned.

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.).

Last week, on March 22 and 23, 2017, the National College for DUI Defense and Texas Criminal Defense Lawyers Association successfully concluded their jointly sponsored annual Mastering Scientific Evidence seminar in New Orleans.

Speakers included Robert Hirschhorn on Winning Voir Dire in Breath, Blood & Accident CasesAmber Spurlock on Mining for Gold in Blood Discovery: Obtaining What You Need & Using It To WinDonald Bartell on Successfully Defeating Hospital Blood Test Cases, Dean Jim Nesci on The Cure for Bad Breath 3.0Alan Wayne Jones, BSc, PhD, DSc on Over 40 years and 400 Published Articles in Alcohol Research: Pushing Science to the LimitsRobert J. Belloto Jr., R.Ph., M.S.2, Ph.D. on Prescription Medication & Alcohol: Interaction and Metabolism – Determining Therapeutic v. Non-therapeutic Levels, Alfred E. Staubus, Pharm.D., Ph.D. on Breath Testing: Reported Measurement of Uncertainty for Various Evidential Breath Testing Machines and Aspects of the Biological Variability, Donald J. Ramsell on Method Validation And Admissibility Of Forensic Alcohol And Drug TestsAndrew Mishlove on Blood Testing for Drugs: Methodology of How It’s Done & Success Challenges, Dr. Jimmie L. Valentine on Exposing False Positives in Drug Testing, Terry A. Wapner on Affecting the Breath Test Results – LPR vs. GERD, and Steven W. Rickard on Winning with Speed, Distance & Time.

StammJones-2-225x300Among the speakers listed above was A.W. Jones, the leading expert in the world on blood and breath testing with over 400 published articles, who answered questions from Leonard R. Stamm regarding calibration of breath test equipment and calculating uncertainty.  With respect to calibration, Dr. Jones opined that where a state has different levels of culpability carrying different punishments, such as Maryland, where the Motor Vehicle Administration suspends driver licenses for test result of 0.08 or above but less than 0.15 and for a test result of 0.15 and above, that the state should calibrate its breath testing equipment at both levels.  This is important because Maryland only calibrates its breath test equipment at 0.08.  Dr. Jones also stated that there is currently no accepted protocol for determining uncertainty.  Dr. Jones preferred method for eliminating uncertainty is to take the mean of two measurements and deduct 15% of the mean to attain a certainty of 99.9%.

The National College for DUI Defense (NCDD) and the National Association of Criminal Defense Lawyers (NACDL) just wrapped up their annual Las Vegas seminar.  As usual, it was well attended and the presentations were very informative.

The conference featured presentations on Thursday, September 22, on cross-examination by Jim Nesci; accident reconstruction by Steven M. Schoor; succeeding without an expert by Tommy Kirk; and, the psychology of winning by Allen Fox, Ph.D.  The conference continued on Friday, September 23 with presentations on case law update by Don Ramsell; NHTSA’s ARIDE program (Advanced Roadside Impaired Driving Enforcement) by Tony Palacios; preparing for direct and cross of experts by Virginia Landry; ethics by Jim Nesci and nine other regents; gas chromatography for jurors by Suzanne Perry, M.Sc.; closing arguments by Joe St. Louis and Tommy Kirk; field sobriety test facts and fallacies by Tony Palacios; and, prescription medication issues by Fran Gengo, Pharm. D., Ph. D.  The conference concluded today with presentations on closing argument by Tommy Kirk; cross of the standardized field sobriety tests by John Hunsucker (for attorneys with 1-5 years experience) and by Don Ramsell (for attorneys with over 5 years experience); analyzing a DRE facesheet and narrative report by Steven Oberman and Tony Palacios; breath testing by Jim Nesci; defending the impaired marijuana case by George Bianchi; and, how to try your first DUI case by John Hunsucker.

The National College for DUI Defense (www.ncdd.com) just completed its annual summer session held in Cambridge Massachusetts.  The session featured large lectures, small lectures, breakouts, and small elective seminars.

Topics covered included Cross-Examination of the Arresting Officer by Marj Russell of the Gerry Spence Trial Lawyer’s College; Cross-Examination break out; Handling the High Profile case by Tony Coleman; immigration law by Brad Williams; postconviction, writs of error coram nobis by Professor Byron Warnken of the University of Baltimore Law School; plea negotiations and ethics by Assistant Professor Rishi Batra from the Texas Tech. School of Law.

We had small elective seminars (discussion groups) that were a new feature of the summer session and were very well received with the following topics: Win at the Initial Appearance, taught by Andrew Mishlove and Pat Maher; Suppression Motions: Winning it All Before Trial, taught by Jim Nesci and Steve Oberman, Leonard Stamm and Andy Alpert, Andrew Mishlove and Pat Maher, Don Ramsell and Michelle Behan, and, Mike Hawkins and George Flowers;  Getting What You Want-Creative Approaches to Obtaining Discovery, taught by Bell Island and Lauren Stuckert; How to Use Social Media Effectively and Ethically, taught by Bill Kirk and Brad Williams; Federal DUIs: Reinventing the Wheel? by Leonard Stamm and Andy Alpert; Don’t Let Your Military Client Go Down with the Ship by John Hunsucker and John Webb; Picking the Winning Jury by John Hunsucker and John Webb, Mimi Coffey and Ryan Russman, and Paul Burglin and Lynn Gorelick; Preparing for Plan B, Sentencing in Serious Cases, taught by Mike Hawkins and George Flowers; Follicles, IIDs, ETG and SCRAM: The Hairs, Airs and Other Snares of DUI, taught by Doug Murphy and Richard Middlebrook; Just Say NO to Losing Your Client’s Commercial or Professional License, taught by Virginia Landry and Steven Epstein; Turning the Tide with Treatment, taught by Paul Burglin and Lynn Gorelick; Using Technology to Win Your Case, taught by Joe St. Louis and Lawrence Koplow; Managing a Practice from the Stone Age to the Digital Age in 10 Easy Steps, taught by Bruce Edge and Matt Dodd; Writing Winning Appeals, taught by Don Ramsell and Michelle Behan.

The Supreme Court decided two Fourth Amendment cases this week that diminish our freedom from police searches.  The Fourth Amendment says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Starting with the Supreme Court’s decision in Terry v. Ohio, in 1968, police have been allowed to stop a person without probable cause if they have an articulable reasonable suspicion that the person has, is, or is about to break the law.  Under the exclusionary rule, the government is not allowed to use in court evidence obtained in violation of the Fourth Amendment.  The exclusionary rule exists to deter officers from breaking the law.

Today the Supreme Court heard oral argument in the cases of Birchfield v. North Dakota, 136 S.Ct. 614 (2015); Bernard v. Minnesota, 136 S.Ct. 615 (2015); and Beylund v. Levi, 136 S.Ct. 614 (2015).

Leonard R. Stamm, along with Donald Ramsell and Jeff Green, co-authored an amicus brief filed on behalf of the National College for DUI Defense and the National Association of Criminal Defense Lawyers, in these three cases on February 11, 2016.

The issue in the case was whether a state may make it a crime to refuse a warrantless breath test, or put differently to exercise one’s constitutional right to require the state to comply with the Fourth Amendment.   Maryland has a sentencing enhancement of up to 60 days that may apply if a person is found by a judge or jury to have knowingly refused a test.  The National Park Service, which controls a number of roads in Maryland, including the Baltimore-Washington Parkway, has a regulation, 36 CFR § 4.23(c) that makes it a crime to refuse a breath test, with a maximum penalty of 6 months in jail and a $5,000 fine.  In both state and federal DUI cases, a suspect is told there is a possible jail sentence if he or she refuses to submit to a breath test.  As a result, every breath test in state and federal court in Maryland is subject to a motion to suppress alleging that giving that advice is coercive and in violation of the Fourth Amendment.

If you have been following the news lately you have heard that Maryland has joined the states that require interlocks in all DUI cases, even for first offenders blowing under 0.15.  For example, see Md. lawmaker: Slain officer Noah Leotta ‘is still on the job’ in the Washington Post.  However a close examination of the record reveals over 50 changes to the original version of Noah’s law contained in the Conference Committee Report.

A key provision in contention would have required a first offender with a test result of 0.08 or higher but less than 0.15 to get an ignition interlock for 90 days.   The House had rejected that provision.  However, that provision was contained in the third reading of the Senate Bill 945.  (The House and Senate had both already stricken a provision requiring defendants charged with DUI or DWI but only convicted of reckless or negligent driving to get an ignition interlock).  In the end, the House and Senate Conference Committee compromised.  They increased the length of the suspension to 6 months, but reinstated a provision that allows alleged offenders to request a hearing to get a permit that allows driving for employment, alcohol education, education or medical purposes for the licensee or family members, without obtaining an ignition interlock in the car.  So while a 6 month interlock is an option, it is not a requirement in the new law.  The new law, which takes effect on October 1, 2016 (assuming the Governor signs it), also requires ignition interlock for defendants convicted of drunk driving (for 6 months, one year, or 18 months).  But in Maryland most of them are second offenders, since most first offenders found guilty end up with probation before judgment (PBJ) – not a conviction.

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.

Every breath test in Maryland is subject to suppression.  Every administrative suspension based on a failed breath test should be thrown out.  The reason is – in Maryland there is a potential 60 day enhanced jail penalty for every driver arrested for DUI who refuses to take a breath test.  The question is – can the State put someone in jail for refusing to consent to a search of their body?  Can the State make it a crime, or a sentencing enhancement to refuse to consent to a warrantless search?  And if they cannot, can they comply with due process when they use the threat of jail to induce the person to consent to a breath test?  The answer to these three questions should be NO.

There is a conflict among courts on the issue of whether a State can criminalize refusal to submit to an alcohol test.  If it cannot, then any consent obtained by advising a suspect that refusal is a crime carrying a potential penalty of incarceration is coerced and involuntary as a matter of law.  In Maryland, the DR-15 advice used to obtain consent gives this questionable advice.

This is an important issue currently because on December 11, 2015, the Supreme Court granted certiorari in three cases that raised this issue: Birchfield v. North Dakota, 136 S.Ct. 614 (2015); Bernard v. Minnesota, 136 S.Ct. 615 (2015); and Beylund v. Levi, 136 S.Ct. 614 (2015).  These cases will be argued in the Supreme Court on April 20, 2016.