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Articles Posted in Sentencing in DUI cases

In the past year there have been a number of developments in the area of DUI law in Maryland, and most of them favor the State.

The Court of Appeals has issued a number of decisions favoring the MVA. In Hill v. Motor Vehicle Admin., the Court of Appeals rejected an argument that the DR-15 was misleading to drivers holding a commercial drivers license (CDL) because the form was claimed to not advise CDL holders that if they refused a breath test the interlock option would not available in lieu of the disqualification of the CDL. In Najafi v. Motor Vehicle Admin., although the Court of Appeals held that Najafi’s right to counsel was not violated, it said in dicta that a claim of a violation of the right to call a lawyer before deciding whether to submit to a breath or blood alcohol test cannot be litigated at an MVA hearing. In Motor Vehicle Admin. v. Loane, the Court of Appeals construed the plain language of Transportation Article, § 16-205.1(a)(2), that the implied consent law does not apply on purely private property. The Court held that despite this plain language that the implied consent law does apply on purely private property and that the issue cannot be raised in defense at an MVA implied consent hearing. In Thomas v. Motor Vehicle Admin., the Court of Appeals held that the “detention” referred to in § 16-205.1 is not required to be an arrest. In Motor Vehicle Admin. v. Aiken, the court held that the MVA need not produce the test strip or form Notification of Test Result, if the breath operator noted the test results under oath on the DR-15A Form. The court held that the MVA did not need to show in its prima facie case that the test had been administered with equipment approved by the toxicologist, because approval by the toxicologist was not listed as an issue that could be considered at the hearing under § 16-205.1(f)(7) of the Transportation Article. In Headen v. Motor Vehicle Admin., the Court of Appeals held that under § 12-111(b)(2) of the Transportation Article the MVA could designate drunk driving offenses as confidential after five years and deny expungement as to those convictions. The Court also held that a driver who is refused a drivers license due to an out-of-state suspension or revocation is not entitled to an administrative hearing to contest the refusal.

In Motor Vehicle Admin. v. Shea, the Court of Appeals reviewed the question of what constitutes reasonable grounds to support the detention at an MVA hearing. The facts included the officer’s statement concerning a moderate odor of an alcohol beverage on the driver’s breath and that the driver submitted to standardized field sobriety tests. An administrative law judge took action against Shea’s license. On appeal, in response to Shea’s argument that the DR-15 Form provided insufficient reasonable grounds, the circuit court ruled for Shea but held that moderate odor of an alcohol beverage combined with a seatbelt violation was an insufficient basis to conduct field sobriety tests. The circuit court ruled for Shea but held that moderate odor of an alcohol beverage combined with a seatbelt violation was an insufficient basis to conduct field sobriety tests. The Court of Appeals reversed, relying on Motor Vehicle Admin. v. Richards, since the Fourth Amendment exclusionary rule does not apply in MVA hearings. The Court also avoided deciding whether a moderate odor of an alcohol beverage alone could constitute reasonable grounds to support a detention to take a test, since the Court found that there was substantial evidence to support the finding of reasonable grounds, namely that the ALJ could have inferred on this record that Shea failed the standardized field sobriety tests.
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Every year the Maryland legislature is bombarded by MADD, the Maryland State Police, and the States Attorneys, and are asked to strengthen Maryland’s DUI laws. Every year the DUI laws get strengthened, they never get made more lenient.  This year they made a number of changes regarding ignition interlocks that raise some serious questions about how they will be implemented.

Prior to October 1, 2011, ignition interlock restrictions were primarily imposed where the driver submitted to a test with a result of .15 or higher, or refused, or had a second or subsequent test failure or refusal, or a second finding of guilt.  After October 1, 2011 the new laws requires ignition interlocks as follows:

Mandatory Participation: A driver must participate in the program as a condition of modification of a license suspension or revocation of a license or the issuance of a restrictive license if the driver:

  • is required to participate by a court order;
  • is convicted of driving while under the influence of alcohol or under the influence of alcohol per se and had a blood alcohol concentration (BAC) at the time of testing of 0.15 or greater;
  • is convicted of driving while under the influence of alcohol, under the influence of alcohol per se, or while impaired by alcohol and within the preceding five years was convicted of any specified alcohol and/or drug-related driving offense; or
  • was younger than age 21 and violated the alcohol restriction imposed on the driver’s license or committed the specified alcohol-related driving offense.

These ignition interlock restrictions run for six months for a first ignition interlock restriction, for one year for a second ignition interlock restriction, and three years for a third or subsequent ignition interlock restriction.  Failure to comply leads to a one year suspension of the license or privilege in Maryland, after which the driver must still comply with the program in order to get  a drivers license.  However after 45 days of the one year period the driver may be readmitted to the ignition interlock program.
 
Many drivers are unable to obtain an ignition interlock because they
live out of state or because they do not own a car. The new laws do not explain how the MVA is supposed to handle that situation.  Additionally, drivers of commercial motor vehicles who need a commercial drivers license (CDL) may also be out of luck under the 2011 laws.

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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 murderA 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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In Maryland, if the defendant pleads guilty or is found guilty after a trial, sentencing usually takes place immediately. The judge has already heard the facts of the case. At this point the judge wants to hear something about the defendant, including but not limited to: age; educational background; family situation; employment; and most importantly, whether the defendant has been assessed by a state certified alcohol counselor to determine whether the defendant has a drinking problem and has begun or completed the recommended program.

The assessment is made using standard screening tests, including the Michigan Alcohol Screening Test, also known as the “MAST” test, and others. On a first offense, offenders assessed as a “social drinker” are normally recommended to complete a 12-hour class. This is usually spread out over six weeks, with six two-hour evening sessions. Offenders assessed as a problem drinker are usually recommended to complete a 26 week program.

If the defendant thinks it is unlikely he or she will want to take an appeal from the guilty finding and is requesting probation before judgment, also known as “PBJ,” then the defendant should probably make a short statement of remorse, and indicate the steps being taken to ensure that something like this will never happen again.
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