DUI QUESTIONS & ANSWERS
My driving was fine, can the officer pull me over?
Your driving may have been fine, but the police always look for some “excuse” to pull you over. It could be a seat belt, cracked tail light, or failure to stop completely at a stop sign. Once the officer can establish that some “crime” was even “suspected” he has the right to pull you over….and rest assured, the cop could care less about the seat belt — he’s hoping to find something much more serious after he pulls you over.
What should I say if I'm stopped by a police officer and he asks me if I've been drinking?
The reason the cop is asking you whether you’ve been drinking is so that he can tell the judge later, at trial, that you admitted to drinking, and that gave the cop the basis for pulling you out of the car and administering field sobriety tests. Your statement will be used to incriminate you, so you shouldn’t admit to it; rather you should ask to consult with your attorney before answering any further questions.
Do I have to take field sobriety tests?
You are not required to take the field sobriety test, although you will probably be arrested if you refuse; however, the prosecutor will later have difficulty in proving the case against you.
I thought I did well on the field tests, why was I arrested?
All my clients tell me they thought they did well on the field sobriety tests. In fact, there are so many instructions that you’re required to follow, the cop can almost always find numerous violations in your performance on the tests. I’ve had many cops, in testifying in court on my cross-examination, be unable to flawlessly demonstrate those tests while sober in court. The cop almost always finds fault in the field sobriety test and therefore has cause to arrest you.
Should I agree to take a breath test? What happens if I don't?
This, of course, is the million dollar question. Obviously, if you take the test and score below .08, the state will have a huge problem convicting you. But you would rarely know ahead of time what your score on the test will be. In addition, if you refuse the test, the MVA will try to suspend your license, and on a refusal, cannot modify the license with a work restriction. You might also be required to use an ignition interlock device as a condition to driving a car. Refusing the test will sometimes make it more difficult to prove its case against you, but it often has a very negative impact on keeping your license. But if the officer does not have proper grounds to stop your vehicle, the fact that you refused will have no effect on your license at all.
But here’s two little gems that most people don’t know about. First, you have the right to consult counsel, even out on the street, before making a decision about taking the breath test. The cop must allow you to call your attorney from your cell phone unless it would cause an unreasonable delay. Second, you actually have the right to change your mind after initially telling the cop “yeah” or “nay” about taking the breath test–again, as long as it does not unreasonably delay the administering of the test. So you can refuse the test to give you time to think about it, and you have every right to change your mind within a reasonable time.
Do I have a right to an attorney before deciding whether to take a breath test?
Yes you do. Read the above paragraph which explains this in more detail.
Can I elect a blood test instead of a breath test?
In Maryland, the driver has no right to request a blood test; however, if the driver, due to physical disability (such as having been involved in a serious accident) is unable to take a breath test, then the blood test should be administered…but only by individuals qualified under the Maryland code.
The officer never read me my rights, what can we do about it?
This is one of the most widely asked questions. In a nutshell, unless you made a confession after you were arrested, the fact that you were never read your rights makes no difference–and the cop will always insist that he read you your rights. Who do you think the Judge will believe? But let’s win the case on some other ground that has real merit.
Why did I receive more than one ticket charging me with drunk driving?
If you took a breath test, you were charged with three DUI tickets, plus an underlying charge, which was the initial basis for the stop–like speeding or failure to stop at a stop sign; or failure to stay within a single lane. It’s my experience that the prosecutor will usually agree to proceed as to only one of the DUI charges on a plea agreement. If we fight the case, the DUI convictions will “merge” into one conviction for purposes of your driving record. The underlying charge has to be dealt with separately.
Why is the officer allowed to take my license if I'm presumed innocent?
The officer is allowed to confiscate your license on suspicion of drunk driving in order to protect the public; however, you have the right to request a hearing so as to get your license back, but you must do so within a stated time period. If you lose at that hearing, your license will be suspended for a period of time; if you win, no action will be taken and you will get your license back. Keep in mind that this relates only to the MVA and has no relevance to the prosecution in District Court.
What's the difference between the District Court trial and the MVA hearing?
Almost every DUI case has two separate aspects. First, there are the “criminal” traffic charges. Those are heard only in the District Court. The Judge can find you “Not Guilty”; or if he finds you guilty has several choices on the sentence and can fine you. Second, if you took the breath test and had a reading of .08 or higher, the MVA will suspend your license for a stated period; or you can request a hearing and potentially avoid any suspension, or receive a suspension subject to the right to drive to and from work, school, or for medical purposes. The MVA can also require that you install an ignition interlock device on the car you drive; and in some cases, your license can be revoked. If you are convicted in court, and do not receive Probation Before Judgement (PBJ), the court or the MVA will assess several “points” against your license, which can result in a suspension or revocation. The District Court does not assess points–but it can send you to jail or suspend the sentence. The MVA, on the other hand can suspend or revoke your license, or put restrictions on your license.
What will it cost to hire a lawyer?
There is an incredibly wide range of legal fees often quoted by attorneys. The only piece of advice that I can give you here is that you should not over-pay legal fees based on unrealistic promises. If you call me, I will shoot straight, and give you a realistic assessment of your case–strong or weak, good or bad. I’ll try to tell you “the way it really is”. Frankly, I know the amount of work involved in these cases, and I believe that, for a first time offender, a competent lawyer should be able to recognize what usually amounts to three or four solid issues in the case and do thorough preparation for trial– and the fee should be in the $1200 to $1500 range in most cases. For a subsequent offender, a lot more is at stake, and a higher fee may or may not be justified. You should keep in mind that there is a separate fee for the District Court trial versus the MVA hearing. Give me a call and I’ll quote you a fair fee for both.
Should I plead guilty or fight the case?
Some lawyers will tell you “never plead guilty”. I think that really “depends”. Some lawyers will try to “sell you” on using that lawyer on the prediction by the lawyer that he has a good chance of “getting you off” the charges–and you’ll be quoted a big fee for the promise of that great result. I prefer to tell the client the absolute truth and not create false expectations. In many cases, real high paid lawyers who insist on charging high fees end up getting the same result that a guilty plea could have gotten with a much lower fee, and the client would have a fraction of the stress and anxiety. I have found that, on average, about 3 out of 10 clients who call me have solid potential defenses in their cases, and those cases deserve to be tried and fought to the finish. In many such cases, a “Not Gulity” verdict can be obtained–though not in all cases. I’m not the Judge and, in truth, no lawyer can guarantee you a given result. You need to find a “sharp” lawyer who does a lot of these cases, and who will take your case seriously. In the other 7 out of 10 cases, I really believe that a guilty plea may be appropriate; and that you will end up getting a PBJ on a first offense as long as you earn that result by following my advice. I can assure you that if I think you have a chance for a “Not Guilty”, I will do everything within my power to try and get you that result.
What is a PBJ? And should I just take a PBJ or fight my case?
If you get a PBJ, that means Probation Before Judgement. It means that the guilty finding was “stricken” by the Judge, and you will be assessed no points by the MVA. You are eligible for a PBJ if you have had no prior alcohol convictions within 5 years. Most Maryland Judges are reluctant to grant PBJ’s in any DUI case where the defendant has any prior DUI’s–ever. If this is your first DUI offense, you have a good chance of getting a PBJ if you “earn” it. I can discuss with you how to earn it. In some cases it will involve supervised probation where you have to report to a probation officer; in some cases it can be unsupervised. We can talk about this when you call me.
But my threshold question in every case is whether the police violated your rights so as to justify an acquittal, or will the state be unable to prove a case against you. If the answer to either of these questions is “yes”, then I will recommend that we litigate the case.
MANY LAWYERS GO FOR THE PBJ AS AN EASY RESULT IN MOST CASES.
I’M NOT AFRAID TO TRY CASES AND MOST PROSECUTORS WHO DEAL WITH ME KNOW THIS. AS A RESULT, THERE IS A MUTUAL RESPECT ON THIS.
IN ORDER TO GET THE BEST RESULT, YOU NEED TO HIRE A LAWYER WHO IS NOT AFRAID TO TRY A CASE.
It is my first offense, will I get a PBJ?
The answer to this question depends on what you do before trial to demonstrate a desire to learn about drunk driving, and whether you appear before a judge who gives PBJs. Generally, judges who give PBJs want to see first offenders get an alcohol evaluation to determine whether they are a social drinker or a problem drinker, and also to complete the recommended educational or treatment program. Some judges, generally in more rural counties where court dockets are not so congested, will impose a short jail sentence, one night to ten days, even on a first offender.