DWI/DUI/MVA HEARING

If you have had a few and are stopped by the police try to keep in mind the following tips:
  1. The police are there for your protection - my most successful clients actually thank the police for stopping them.
  2. Being polite and courteous can only help - being rude and obnoxious can only hurt.
  3. If you are asked to do field sobriety tests, attempt to buy some time to get yourself together - if you pass these tests with flying colors the police may give you a break - at the least, your successful performance helps in court.
  4. If you are asked to take an Alcohol Concentration Test note the following:
    • For the purpose of a test for determining alcohol concentration, the specimen of breath or blood shall be taken within 2 hours after the person accused is apprehended. Thus, you will be requested to take the test shortly after your arrest.
  5. Charges, test results, and legal presumptions:
    6. **NEW
    • **Under the Influence of Alcohol" - Formerly "Driving While Intoxicated", this is now the most serious alcohol charge.
    • An alcohol test score of 0.08 or more provides the presumption of driving "Under the Influence of Alcohol".
    • "Driving While Intoxicated" - An alcohol test score of less than 0.08 does not provide a presumption but may be considered with other evidence when considering guiltof this charge.
  6. Refusal to take the test or a score of .08 or more results in the following Administrative Motor Vehicle actions:
    • For a refusal, if a first such offense, a suspension for 120 days and for a second or subsequent offense a 1 year suspension.
      • For a test of .08 or more, a 45 day suspension or for a second and subsequent offense a 90 day suspension. Note that a temporary license for work purposes may be granted in lieu of a 45 day suspension to a first such offender as long as the test was not refused.
  7. Should you refuse to take the test:
    • If this is a first offense and you need your license to get to, or do your job, take the test- a first offense will likely result in a finding of Probation Before Judgment (PBJ) in the criminal trial which carries no points and the Motor Vehicle hearing will likely result in the issuance of a modified work purposes only license for 45 days. Of course if you score over .08 your chance of beating the case in the criminal trial (traffic court is technically a criminal court) is reduced substantially since .08 is prima facie evidence of Driving Under the Influence of alcohol.
    • If you have one or more prior convictions and you need to fight the criminal case you are probably better off in not having the test evidence available, thus a refusal may be more practical.
    • It is always best to attempt to contact an attorney prior to making the choice if you have a chance. You are entitled to consult with counsel so ask to do so.
    • It should be noted that evidence of a test refusal is now admissible in court.
  8. Motor Vehicle hearing:
    • You must request a hearing within 10 days of the arrest and confiscation of your permanent drivers license. You will receive a 45 day license from the arresting officer (good until the hearing date) upon scoring .08 or more or by a refusal to take the test.
    • A hearing will be set within the 45 days. However, if the hearing is not scheduled within that time frame, you will receive an extension letter from the MVA allowing you to drive until your hearing is scheduled.
    • You are entitled to have an attorney at the hearing and it is extremely wise to do so.
    • If you wish to obtain a modified license from the Administrative Law Judge hearing your case, you need to bring proof of employment and proof that your license is required to work or that there is no transportation available other than your driving back and forth to work.
    • It is extremely helpful to enter a qualified alcohol program prior to the hearing.
    • There are certain requirements set forth in the Maryland Transportation Code which relates to the proper manner in which the police must fill out certain forms required for these hearings. An attorney experienced in these matters may be able to win your case at this hearing due to non compliance, thus seek legal advice as soon as possible.
  9. Criminal Court trial:
    • Consult an attorney immediately after the offense.
    • If you have any kind of drinking problem enroll in a program before the hearing.
    • In most jurisdictions you will be evaluated by an Alcohol Counselor prior to the trial (usually the morning of the trial) - be completely honest as the only purpose is to determine whether you are a problem or social drinker and this assists the Judge in determining what programs will best help you - this assessment does not effect your guilt or innocence.
    • You have the option of a trial at District Court or you may opt for a jury trial at Circuit Court. If this is you first offense you probably should have a District Court trial. Speak to the States Attorney prior to the docket call - if he is willing to not oppose a Probation Before Judgment disposition you may agree to proceed on an agreed statement of facts whereby the States Attorney merely reads into the record the statement of charges. There is no testimony and no witnesses called. The judge rules solely on the evidence contained in the statement. If you are found guilty, which is probable since the only evidence is the statement of charges, you will have an opportunity to address the judge.
    • Be prepared to explain to the judge what happened the day of the offense, why you believe it will not happen again, what you have done and are doing to clean up your act. Provide the judge with letters of recommendation/ commendation from your employer, church, volunteer group, little league etc.
    • Because Probation Before Judgment is not a guilty finding you must accept same on the record because you can not appeal - you will receive no points, but you may be fined and there are usually conditions for your probation. These may include continued alcohol counseling, AA meetings etc.  The PBJ will show on your driving record.
    • If you do not proceed on an agreed statement you case will be tried- you should always have an attorney for a criminal trial -remember the old axiom: "it is a fool who has himself for a client".
  10. Assessment of Motor Vehicle Points
    • Driving while "Under the Influence" of alcohol - 12 points.
    • Driving While Intoxicated - 8 points.
    • Probation Before Judgment - 0 points - note that you are may not receive a PBJ disposition within 5 years of a prior such disposition.
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The legal information provided is for general information only, and is not meant to be specific advice for your problem. Accurate appropriate legal advice can only be obtained through a consultation with an attorney.

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