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Defenses to DUI in Maryland

A prosecutor will typically rely on the arresting police officer’s testimony as to how a DUI/DWI suspect was driving. This includes: very slow speeds, uneven speeds (very fast then very slow), weaving from one side of the lane to another, crossing the center line of the highway, running a red light and hesitation in going through a green light. Driving Observation Defenses center on the defense attorney arguing that there are other explanations for these driving behaviors that do not pertain to the driver being impaired by alcohol.

An arresting officer may also testify regarding a suspect’s appearance and behavior during questioning. This includes: slurred speech, bloodshot eyes, inappropriate joking or incoherent speech, stumbling or not being able to walk very far, and pupil enlargement.  Defenses to these observations center on arguing that these observations do not have anything to do with being impaired by alcohol. They include: lack of sleep, allergies, contact lenses, stress (due to personal issues), medications, foods recently ingested, nervousness over being stopped by police and physical impairments.

Field sobriety test defenses may also be implemented. Field sobriety tests may be challenged in a similar fashion as officer observations are challenged.  Arguably medications and lack of sleep make it more difficult to perform these tests. Some people have physical impairments caused by injury or aging which make it impossible to perform these tasks even under normal or ideal conditions.

A defense attorney may cross-examine the arresting police officer, inquiring whether the officer asked the driver if he had any physical impairments or if there were any circumstances which would make it difficult for him to perform the tests.  An attorney may also bring to the jury’s attention that they may even have the same difficulty performing these tests under even the best of circumstances.

Challenging the BAC is another defense to a DUI/DWI. A driver’s BAC may be measured by a breath test, a urine test or a blood test. An attorney may argue the devices used to test a driver’s BAC by a breath test are faulty and not well-maintained or are not properly calibrated.  This means they could register false results based on a person eating certain food or ingesting other non-harmful substances besides alcohol or drugs.

A defense attorney will obtain this information by subpoenaing police records showing how the machines operate and how they were maintained and calibrated. An attorney may also incorporate expert testimony to show a machine is known for malfunctioning.

Another possible defense is when the physical breath tests are not preserved as evidence, preventing independent testing later. Arguably there is no way to know if the machine used was accurate, if the breath samples cannot be independently tested at a later date.

A BAC reading could also be challenged by arguing the police officer administering the test was not a qualified to administer the test as prescribed by Maryland law or was not qualified to request that a blood test be administered. In cases of driving under the influence of drugs and/or controlled substances, an officer requesting the test must be a drug recognition officer, he must be a member of particular police departments authorized to conduct drug recognition examinations and he must be trained in drug recognition. Any of these qualifications may be attacked by a defense attorney. Additionally, because an officer must have reasonable grounds to believe that a driver is impaired by a drug or controlled substance to request a blood test, this element may also be attacked. (DUI Handbook § 4:40).


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