Articles Posted in DUI Defense Strategies

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Clients charged with drug or alcohol offenses frequently ask why we recommend they submit to an evaluation and take an education and/or treatment class if they are presumed to be innocent. Doesn’t that make it look like they are guilty? The answer is no. It makes it look like they are dealing with a potential problem responsibly.

There are a number of good reasons why education and/or treatment is necessary when one is charged with a drug and/or alcohol offense. The first thing to consider is whether the person may be abusing the drug or alcohol that is the basis of the charges. If yes, then education or treatment may help to minimize the chance that the person will get in future trouble, as well as help them to cope with what could be a very challenging problem. The arrest is an intervention for many drug or alcohol abusers that forces them to confront an issue they might prefer to avoid confronting. It is not unusual for concerned family members to support attempts at getting treatment. A serious drug or alcohol problem can cause more than just legal problems, the health and well being of the client and his or her family or friends may be in jeopardy. Treatment can help.
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Once a driver has been arrested for a DUI or DWI in Maryland by state, not federal, police, the arresting officer is required to read a form to the driver, called the DR-15 Form. This form explains the penalties for failing or refusing a breath or blood test. Of course if the driver passes the test, i.e. produces a result below .08, there is no penalty. Unfortunately, very few people have even the foggiest clue of what they will blow.

The penalty for failing the test is a 45 day suspension on a first offense or a 90 day suspension on a second or subsequent offense if the driver blows .08 or higher but less than .15. If it is a first offense within five years the driver may be eligible for work, school, medical, or alcohol education restricted driving privileges. If it is a second offense within five years the driver may only obtain a restriction allowing the driver to drive only vehicles equipped with an ignition interlock system.

If the driver blows .15 or higher the penalty is a 90 day suspension on a first offense or a 180 day suspension on a second or subsequent offense. In lieu of the suspension, the driver may be allowed to drive with an ignition interlock restriction for one year.

If the driver refuses the the penalties are a 120 day suspension for a first offense and a one year suspension for a second or subsequent offense. Again, the driver may be allowed to drive with an ignition interlock restriction for one year. A refusal may also be considered as evidence of guilt in court and may also subject the offender to an additional 60 days in jail.

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This week is the National College for DUI Defense‘s summer session in Cambridge, Massachusetts. We stay at the Charles Hotel and have three days of lectures and break out sessions at Harvard Law School. (We are not affiliated with Harvard Law School but we rent some of their classrooms which are perfectly situated for our program).

This year we have some excellent speakers and break outs. Yesterday we had lectures titled First Person Opening by Francisco Duarte, opening statement demonstrations by Virginia L. Landry and Andrew Mishlove, Uncertainty & Science by Ted Vosk, Accident Reconstruction/Reaction Time by Steve Rickard, and Your Expert: How to Direct and Protect by Evan M. Levow & Thomas E. Workman, Jr. We also had Opening Statement break outs where students were able to practice opening statements in a small class setting at get critiqued by instructors while being videotaped. I am one of the instructors.

Today we will have Cross Examination Techniques by Roger Dodd. Roger Dodd wrote the book on cross-examination and he was a featured speaker in Maryland at the Maryland Criminal Defense Attorneys’ Association program titled the 8th Annual Advanced DUI Defense Seminar in 2010. Today we will also have demonstrations of direct questioning by William K. Kirk, cross-examination by Michael M. Hawkinsand Donald J. Ramsell, Jury Selection by Doug Murphy. We will also have cross-examination break outs.
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20 years ago it was not uncommon to for a person convicted of automobile manslaughter to avoid going to jail entirely. Sentences in cases we have handled have ranged from zero to 18 months.  This week the Washington Post reported that a woman was sentenced to serve 20 years for automobile manslaughter for a drunk driving accident that resulted in 2 deaths.

Serrette sentenced Mate to 20 years in prison — more than sentencing guidelines called for and a year less than the maximum allowed by law. The judge acknowledged that Mate had been sexually abused as a child and suffered from alcoholism.

But Serrette stressed that Mate had twice before been convicted of driving while intoxicated and shouldn’t have been behind the wheel that night because her license had been suspended.

“You had repeated wake-up calls that you ignored,” Serrette told Mate. Her actions had destroyed three families: those of the victims and her own, the judge said.

This sentence exemplifies a trend to punish drunk driving and bad driving more harshly across the board and illustrates the importance of getting the best legal representation one can afford. In a growing number of states including California, Alaska, New York and MIssouri, fatal drunk driving accidents are now prosecuted as murder.  A Phoenix man received a 20 year sentence for his 6th and 7th felony DUI offenses – no one was killed or hurt.  A Denver woman received 15 years for a fatal drunk driving accident last year. A Waco man received a life sentence for his 9th DUI since 1984.
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This week a jury found Casey Anthony not guilty of murder of her daughter Caylee. It was the right verdict. The prosecution failed to prove the cause of death, when Caylee died, how she died. The jury could not say whether Caylee died accidentally or was murdered. The jury could not find that an adult was responsible for Caylee’s death, or if an adult was responsible, who was responsible. At best, they could find that it was possible that Caylee was murdered by Casey. In our system of justice, the jury must find guilt unanimously and beyond a reasonable doubt. The evidence didn’t support a guilty verdict in the Casey Anthony case. The jury got it exactly right.

Alan Dershowitz wrote an excellent piece on this in the Wall Street Journal. He talks about the concept in our law that as a society we have made a value judgment that it is better to let 10 guilty persons go free than it is to convict one innocent person. This is one of my favorite legal quotes:

Indeed, concern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system. That concern is reflected, for example, in the ‘fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.’ In re Winship, 397 U.S. 358, 372, 90 S.Ct. 1068, 1077, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). See also T. Starkie, Evidence 756 (1824) (‘The maxim of the law is … that it is better that ninety-nine … offenders should escape, than that one innocent man should be condemned’).

It is from an opinion by Justice Stevens in Schlup v. Delo, 513 U.S. 298, 325 (1995), and can be traced back, as it was in Dershowitz’s article, to the biblical story of Abraham arguing with God that Sodom should not be destroyed if ten innocent people would be condemned.

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Defending drivers with a CDL (commercial driver’s license) who are charged with drunk driving is tricky. Each step of the process involves a risk that the CDL will either be disqualified pursuant to state and federal law, or suspended pursuant to regulations of the Maryland Motor Vehicle Administration (MVA). Under Code of Maryland Regulations (COMAR) 11.11.12.07 the MVA may not issue a CDL if the driver’s license is suspended. Unfortunately, the MVA interprets a case called Embrey v. MVA to hold that any kind of restricted license is the equivalent of a suspension. Under this interpretation, a driver with a work restriction or an ignition interlock restriction may not have a CDL.

The first hurdle through which the CDL driver must pass is the initial MVA hearing for a breath or blood test failure or refusal. If the driver took a test with a result of .08 or higher but less than .15, an effort must be made to persuade the Administrative Law Judge (ALJ) to either take no action or to issue a reprimand, as opposed to a 45 day work permit. If a work permit is issued it will be without the CDL. If the driver failed with a result of .15 or more, or refused a test, an effort must be made for no action. In either event, the ALJ would only have discretion to impose an ignition interlock restriction for one year. Again, this would be without CDL. Additionally, a refusal carries a separate one year disqualification of the CDL.
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What I have tried to do in the following blog is touch on the basics of preparing to represent a person charged with a DUI. It is not possible in this space to give more than a basic outline of what is required. What follows therefore, should be understood to just represent the tip of the iceberg. More detailed information can be found online, in relevant treatises, and at CLE (continuing legal education) seminars.

The lawyer’s preparation for a DUI begins with the first phone call or email by the prospective client. Counsel must find out the arrest date in order to advise the client to request a hearing with the Office of Administrative Hearings before the 30 day deadline expires if the client failed or refused a breath or blood test for alcohol or drugs. The client must be reminded to send in the hearing fee of $125 payable to the Maryland State Treasurer. I recommend the hearing request be mailed certified return receipt requested in order to protect against the hearing request being lost.

The initial consultation involves obtaining as much information as possible about the client and the case with the goal of obtaining the best possible result for the client in court and at the Maryland Motor Vehicle Administration (MVA). The lawyer must get from the client a brief life history and background, including education, military service, immigration status, marital and parental status, employment, need for a driver’s license, affect of license suspension or jail or probation on the client, prior record, prior efforts at alcohol education or treatment, a complete medical history, and a detailed recollection of the events leading up to and including the arrest and submission to any test, including drinking history. The lawyer must obtain and review all documents received by the client. I like to put the officer’s dates and times into a timeline in order to better understand the officer’s claimed sequence of events.
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This is my first blog on DUI defense and related matters. So if you are reading this, welcome! I will try to blog every week. In the coming weeks and months I will be discussing issues of importance to DUI defendants and defense lawyers since a major part of what we do is translate the legal system to our clients, their family and friends to make what can be a stressful and confusing experience understandable.

Today I want to talk about whether to go to trial or plead guilty in state court. Every day I go to court I see defendants plead guilty to drunk driving charges who might be able to win their cases. Some lawyers advise their clients to plead guilty when they haven’t even checked to see if the officer is present in court. Don’t get me wrong. If a person accused of drunk driving is truly remorseful, pleading guilty can be a cathartic experience. But putting the State to its proof is not diametrically opposed to remorse. It is the way the system was designed to work. If the State cannot prove my client is guilty then he or she is not guilty. If the State wins, we can show plenty of remorse then.

The question I ask before advising a client is whether the client is better going to trial or pleading guilty. Another way of asking this is, is there a trial tax or penalty? Well, when a person is accused of having committed a serious felony and is likely to be convicted at trial, and the accepting the plea offer means the client will be in jail for a significantly shorter period of time, then taking the plea makes sense. But in the typical DUI case, the State offers the exact same thing or worse than would happen if the defendant is found guilty. So what is the benefit? At least with a trial, the defendant might not be found guilty.
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