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Frequently Asked Questions About DUI in Maryland

What are the elements of a DUI offense?

The BAC (blood alcohol content) limit is .08 or greater for a DUI and .07 or greater for a DWI.  A person’s BAC is determined by either a blood or breath alcohol test. A blood alcohol concentration of .08 or higher is sufficient to be considered driving “under the influence per se.” (See § 21-902 (a)(2)). If a driver is “under the influence per se,” no additional evidence is necessary for a conviction.  A person who has a BAC of .07 is assumed to be impaired by alcohol (See § 21-902 (b)(1)).

When can you be arrested for DUI?

You can be arrested for a DUI when a police officer stops you, and believes you were driving or attempting to drive while impaired or under the influence of alcohol, drugs, or drugs and alcohol. This can be registering a .08 or above on a breath alcohol test (or a 0.02 for juveniles and a 0.04 for commercial vehicle drivers respectively) or for refusing to take the breath alcohol test.

Police officers will use her own observations, field sobriety tests, and a blood alcohol content breath test to determine whether the driver is impaired or under the influence of alcohol and/or drugs.  Slurred speech, bloodshot eyes, and the smell of alcohol on one’s breath are some of the observations indicative of driving while impaired or intoxicated.

Enhanced Penalty Blood-Alcohol Concentration in Maryland.

A driver with a blood alcohol content measuring between 0.08 and up to and including 0.14 will face standard DUI penalties. These include up to one year in jail and up to a $1,000 fine.. A person’s driver’s license will also be suspended for a minimum of 45 days. For a subsequent DUI offense with a BAC between 0.08 and 0.14, a driver could have her license suspended for 90 days.

A driver with a BAC of 0.15 or more at the time of testing will face enhanced penalties. This includes having his driver’s license suspended for 90 days. For his second or subsequent offense he will have his driver’s license suspended for 180 days. (§ 16-205.1).

Can a DUI by expunged in Maryland

A person is not entitled to expungement of a DUI in Maryland.  Specifically, a disposition of probation before judgment or a disposition of guilty for a violation of driving  under the influence (DUI) or driving while impaired (DWI) (Transportation Article §21-902, Criminal Law Article §2-503, 2-504, 2-505, or 2-506, or former Article 27 §388A or §388B) is not eligible for expungement.

How does DUI differ for individuals under 21 years of age?

Drivers under 21 are held to a blood alcohol content (BAC ) of less than .02.  Maryland follows a zero tolerance policy for alcohol for drivers under 21. If a driver under 21 has a BAC of .02 or higher it is prima facie evidence that there is .02 alcohol in the person’s blood (i.e. sufficient evidence to prove the driver violated the law). They could have their licenses suspended or revoked.

A driver under 21 who is convicted of a violation of § 21-902(a)(b) or (c) (DUI/DWI) may be required, for a period no longer than three years, to participate in the Ignition Interlock System Program in order to retain his or her driver’s license. (See MD Code § 16-113).  Ignition interlock devices connect a motor vehicle ignition system to a breath analyzer. It measures a driver’s blood alcohol level and prevents a motor vehicle from starting if the driver’s BAC is higher than the allowable setting on the device.

Can I be stopped and arrested for DWI even if the vehicle was not moving?

Yes, you can be stopped and arrested for a DUI/DWI even if the vehicle was not moving. Under Maryland law, “to ‘drive’ means to drive, operate, move or be in actual physical control of a vehicle including the exercise of control over or the steering of a vehicle being towed by a motor.” Transportation Article § 11-114.  Thus a person is in actual physical control of a car for purposes of DUI offenses if the person is “exercising or is imminently likely to exercise restraining or directing influence over motor vehicle while in intoxicated condition.” (§ 11-114).

But when a person is completely passive (such as being asleep in the front seat with the engine off, keys in the ignition, headlights on, parked on the shoulder of a highway) he has not tried to actively control the vehicle. Thus there is no reason to think the intoxicated person is going to control the car, and criminal sanctions should not apply. See Thomas v. State, 353 A.2d 256 (1976); cf. Dukes v. State, 940 A.2d 211 (2008)(driver was actively controlling the vehicle when he was asleep in the front seat, with the keys on the floor, while stopped in a right turn lane with the headlights dimmed).

Facts considered in determining “actual physical control” are :whether the engine is running; where and what position the person is in inside the car; whether the person is awake; where the key is located; whether the headlights are on; and whether the car is located in a roadway or is legally parked. (§ 11-114). All factors will be considered in determining whether the driver was in actual physical control of the vehicle or if the driver was simply using the vehicle as a “stationary shelter.”

Additional factors considered include examining what the driver was doing or what he had done earlier and whether these actions “posed an imminent threat to the public.” The main factor of this type looks at whether the driver started or tried to start the car’s engine.

Notably, even if it is determined that a driver was not in “actual physical control” of the vehicle, he still may face a DUI/DWI. If it can be proven “beyond a reasonable doubt” that the driver drove, operated or moved the vehicle while under the influence, he may be convicted of driving under the influence. See In re Christine L., 459 A.2d 1125 (1983) (juvenile asleep in the driver’s seat of her vehicle in a ditch with the engine running, who tried to put the vehicle in gear and drive away when awoken by an officer was found to have been attempting to drive while under the influence of alcohol even though the car was immobile).

Do I have the right to talk to an attorney before I give a sample?

Yes, a driver has the right, under the 14th amendment, to speak with an attorney before deciding whether to submit to a police-administered breathalyzer test. An attorney is also allowed to administer his own breathalyzer test before advising the client.  3A M.L.E Automobiles and Motor Vehicles § 300.

This communication with an attorney must not interfere with the administration of the test. (DUI Handbook § 7:37).  A driver may not postpone the test until he has consulted with his or her attorney if the postponement exceeds the statutory two-hour limit. Brosan v. Cochran, 516 A.2d 970 (1986).

In terms of defenses used at trial, deciding whether the driver’s “right to counsel” or the right to speak to an attorney was denied will be determined on a case-by-case basis; the facts of each individual situation will be looked at to see if a person’s 14th amendment rights were violated. Motor Vehicle Admin. v. Atterbeary, 796 A.2d 75 (2002).

Do I have to give a blood or urine sample?

A person may not be forced to take a test for intoxication (§ 10-309(a)(1)(i)). BUT, the driver will most likely have his license or privilege to drive taken away by the Motor Vehicle Administration. Suspension is mandatory for refusal to submit to a blood or breath test.

In Maryland, you may have to give a blood sample if you are accused of a DUI or DWI.  (See Section 10-303). Under Maryland law, only one blood sample may be drawn and tested. This sample must be collected within two hours of “apprehension” by police (when the police officers reasonably believe and have accused the person of driving while impaired or under the influence.)

If you are accused of driving while under the influence of drugs or controlled substances, you may have to submit to a blood test. Only one blood sample may be drawn for testing. This sample must be drawn within four hours of “apprehension.”

In situations where the driver is conscious and alert, oftentimes officers may have a blood alcohol test administered even without first obtaining a warrant. Elements such as probable cause, exigent circumstances (such as decreasing blood alcohol evidence), reasonableness of the test, and a reasonable administration of the blood test were sufficient to allow a warrantless blood draw according to the United States Supreme Court. See Schmerber v. California, 384 U.S. 757 (1966). In other words this varies from situation to situation: an officer may have to get a warrant before a blood test is administered in some cases, while in other situations a warrant will not be necessary.

If the driver is taken to a hospital for treatment of injuries, is unconscious or is incapable of refusing a test then an officer is required to have a blood alcohol test administered. Also, if an officer believes based on reasonable circumstances that the impaired driver was responsible for causing death or life-threatening injuries, he is required to have a blood test administered.

Do I have to submit to a field sobriety test?

No, you do not have to submit to a field sobriety test. However, the police will typically arrest you for drunk driving if you refuse to take them. Maryland case law suggests that evidence of the refusal to submit to a field sobriety test may not be admissible in court. (§ 7:30. Maryland DUI Handbook.)

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