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Drunk Driving Defense – Attorneys Defending Clients Charged With Virginia (VA) DUI, Maryland (MD) DUI, Maryland (MD) DWI
The Law Offices of SRIS, P.C. has been defending drunk driving offenses in Virginia & Maryland for many years. In the process of defending clients charged with a DUI in Virginia, DUI in Maryland, DWI in Maryland, our attorneys have been asked a number of questions about DUI & DWI charges.
Our attorneys in Virginia & Maryland who provide drunk driving defense have compiled a list of the most FAQs here in an endeavor to answer the questions we are most commonly asked. We hope you find this information and if you think that either you or a loved one needs the help from one of our Virginia attorneys or Maryland lawyers about a DUI in Virginia or MarylandDUI/ DWI, please do not hesitate to call us. We are very experienced at handling DUI/DWI/DUID cases in Virginia & Maryland.
If you ever need to reach us, we have client meeting locations in Virginia & Maryland in the following locations:
Maryland - Rockville & Baltimore
You can also learn more about the attorneys who defend DUI cases by visiting our attorneys page.
The following are the most common questions and topics involving Driving Under the Influence:
Here is a short discussion on each type of penalty:
You probably know this as drunk driving. The legal definition is “driving a motor vehicle on a road or highway while under the influence of an intoxicating substance.” It sounds simple enough, but surprisingly there’s a large gray area involved.
There are several factors involved when determining if a person has been driving while drunk or under the influence.
- Was the person actually “driving” as defined by the law?
- What type of vehicle was the person driving?
- Was the person on a road?
And the most important factor:
- Was the person legally intoxicated?
This last point is central to determining if a person was indeed involved in a DUI, and presents the biggest challenges in both defending and prosecuting this offense.
DUI statutes (laws) try to overcome this “intoxication” issue by relying on devices that measure a person’s Blood Alcohol Content (BAC). The proof is in the numbers – if the device used indicates a certain BAC percentage is present, the person is presumed intoxicated.
This is the crux of the issue. “Was the driver under the influence of alcohol or drugs when operating or driving the motor vehicle?”
The exact standards used and laws governing DUI’s differ from state to state. However, regardless of the standard or law, the prosecution must show beyond a reasonable doubt the driver was violating the DUI law when driving the vehicle, and the amount of alcohol or drugs involved was enough to endanger him or her self or the public at large.
To establish guilt or innocence, witness testimony (including police officers) can be used, along with sobriety tests performed on the scene.
However, since witness observations are clearly subjective and could interfere with an effective prosecution, a DUI offense is often prosecuted under a per se statute, where the actual BAC level (.08 to 0.1 depending upon the state) determines whether or not the driver was “under the influence.” (Per se means that the act itself is inherently illegal, without the need for other verification.)
Thus if the BAC measuring device says you’re under the influence – that’s all that’s needed to prosecute.
If the measuring device does indicate a BAC level over the legal limit, the burden of proof shifts to the defendant to prove he or she was not under the influence of alcohol or drugs.
One way to do this is to prove the device or methods used to administer the blood alcohol test was inaccurate or faulty. The driver charged (defendant) can also introduce evidence, such as their own testimony or that of other witnesses, as well as chemical tests, that may rebut the presumption of guilt indicated by the BAC testing device.
In most states, if you’re arrested for a DUI offense, your license may be automatically revoked or suspended. Since driving is considered a privilege and not a right, the state can basically suspend or revoke those privileges for any legal reason they so choose. Due process does require a hearing to determine whether sufficient cause exists to revoke or suspend a license to drive.
In fact, while a trial judge is authorized to revoke a person’s driving privileges, only the Department of Motor Vehicles (DMV) is authorized to revoke the actual license.
Even though some state statutes try to blur this distinction, courts can only prohibit driving and may not actually suspend a license. However, once the court orders the defendant not to drive, the matter is all but moot. The defendant can be held in contempt of court if caught driving without an approved restricted license.
This confusion spills over to the arresting officer. It’s unclear whether a law enforcement officer may legally seize or confiscate a DUI offender’s license.
Most states do have statutes stating the DMV is authorized to suspend a driver’s license upon sufficient evidence that an offense has been committed for which mandatory revocation of license is required upon conviction.
The above point is not in dispute. It still does not authorize a policeman or other municipal law enforcement officer to seize a person’s driver’s license for a traffic offense in violation of a municipal ordinance or a rules-of-the-road violation.
Since driving is a privilege, states have what is called “implied consent” laws. If you are granted a license, you implicitly give your consent to sobriety testing when suspected of drunk driving.
Generally speaking, refusing to take BAC test to determine if a driver is over the legal limit can have both civil and criminal consequences.
Refusing to take the test itself can be a separate criminal matter, as well as increasing the penalties for the original drunk driving offense.
Many states have codified the admissibility of evidence in an individual’s refusal to submit to a blood alcohol test. The language of one statute specifies:
“If a person under arrest refuses to submit to a chemical test, evidence of refusal shall be admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while under the influence of alcohol or drugs.”
In other words, refuse to take the test and you are automatically presumed guilty.
Although the U.S. Supreme Court has upheld the constitutionality of such provisions, state courts may modify or limit the law’s application based on state’s constitution or judicial interpretations.
One such court has actually restricted this automatic admission of refusal evidence to situations in which the DUI defendant denies being given the opportunity to take a chemical test, claims that the test results actually showed the defendant was not guilty, challenges to the actual testing itself or to the arresting officer’s credibility.
Also, some states dictate a person must be warned by the police officer beforehand of the consequences of refusing to take a sobriety test. If a warning wasn’t given, the refusal evidence would not be admissible. Frequently, the state’s implied consent statute determines if the refusal can be admitted as evidence or not.
There are two provisions at question here: A person’s constitutional privilege against self-incrimination and their right to due process
Not going into the complex (and sometimes convoluted) reasoning involved, the bottom line is this:
The U.S. Supreme Court ruled that the admission of an individual’s refusal to submit to a blood alcohol test does not violate the Fifth Amendment privilege against self-incrimination
The court stated the Fifth Amendment privilege only protects the individual from being compelled to provide evidence of a testimonial or communicative nature, and does not apply to “real or physical” evidence. Blood alcohol test are considered real or physical evidence, and so do not receive protection under the Fifth Amendment.
Likewise, the Supreme Court ruled there is no coercion involved when an individual is arrested for a DUI drunk-driving offense and is requested to submit to a blood alcohol test.
A driver who has been arrested for a DUI drinking/driving offense has the “choice” of submitting to a blood alcohol test, which may yield incriminating results, or refusing the test and taking the consequences: License revocation and the admission of that refusal as evidence in a criminal trial.
Because a suspect does not have a constitutional right to refuse chemical testing, the DUI defendant cannot claim that a warning was constitutionally required.
In other words, it’s the classic “damned if you do and damned if you don’t” scenario.
(Even though the Fifth Amendment doesn’t protect the actual refusal to take the test, statements made by the defendant may be protected. In states where there is no specific statutory obligation concerning DUI testing, the defendant’s lawyer could successfully stop the defendant’s refusal to submit to field sobriety testing from being introduced as evidence in a trial. As we said, the law is both complex and convoluted!)
As mentioned, most states have made it a separate crime to refuse taking a blood alcohol test. The purpose of these laws is “to encourage all suspected drunk drivers to take the breathalyzer test…”
The penalties imposed as a result of a conviction for refusing the test are in addition to the penalties imposed of being convicted of the original DUI drinking/driving offense. Plus, by refusing to take the test – upon conviction, the penalties for the original offense may also be increased as a result (including mandatory jail time).
Even if the defendant if found NOT GUILTY of the original DUI offense, they can still be prosecuted for refusing to take the sobriety test!
It might stand to reason that in order to be prosecuted for driving under the influence, one actually has to be driving the motor vehicle – or does it?
Driving is actually defined under two major categories: “Driving or Operating” and exercising some type of control over the vehicle even though it’s not moving.
Some considerations: What does it mean to have “domination or regulation” of a vehicle? Is keeping the vehicle stopped but with the motor still running count? Even though the vehicle isn’t moving, many courts have determined that actual physical control does include a person sitting in a motionless vehicle with the engine running. It’s even been held that sleeping in a car with the engine running fulfils the legal criteria for driving!
Some courts have even taken this to the extreme – upholding convictions and license suspensions where the person was just sitting in a vehicle and the engine was NOT running.
However, there are many jurisdictions where the law requires the person actually steering or exercising control over the vehicle while it was in motion. In fact, steering a towed vehicle has been determined by many courts to constitute “driving” under the law.
There are cases where a person has been charged with a DUI, even when they weren’t observed driving the vehicle. Single vehicle accidents are an example of this (like smashing your car into a tree, and then walking – or stumbling – away from the car before the police arrive.)
While the accused may not actually be operating the vehicle by the time officers arrive, the surrounding circumstances may point to that conclusion. (Sort of like that famous Presidential defense: What the definition of “is” is.)
Since the officer may use statements from the accused to determine if he or she was indeed operating the motor vehicle in cases where they were not directly observed doing so, it’s always best to say as little as possible.
Responsibility doesn’t always end with just the driver. Some statues extend the element of control to the owner or custodian of the vehicle as well. If the owner knows – or reasonably should have known – that a person had a BAC over the legal limit, and still allows them to operate the vehicle – the owner too can be charged with a violation of the DUI statutes.
There is one case where the law is unambiguous: Every time a driver is driving a vehicle on a road or highway, it is always held the driver is “driving,” “operating,” and “in control” of the vehicle.
Only when a vehicle is not actually moving under its own power, may a person raise the issue of whether or not he or she was “driving” or “in control” of the vehicle. Courts have developed a list of factors in determining whether the defendant was “driving” a motionless vehicle on public property.
Was the defendant conscious or unconscious?
Was the defendant asleep or awake?
Was it day or night?
Was the defendant trying to move the vehicle?
Was the defendant parked on private property or on a public road?
Was the defendant in the driver seat?
Were there other occupants in the vehicle?
Were the headlights on or off?
Were the windows up or down?
Was the defendant capable of driving the vehicle?
Essentially, the courts have held that while a someone may be in control of a vehicle and capable of driving it, they’re not technically “driving” if they’ve pulled the vehicle over to the side of the road to avoid driving under the influence. It seems courts have shown some compassion for defendants who’ve taken positive action to sober up and avoid a dangerous DUI situation.
This trend in DUI sentencing increases the penalties for multiple offenders. Under these new laws, multiple offenses within 5 or 7 years are no longer misdemeanors – but treated as a felony. It’s even being considered by many states to eliminate the time period altogether – charging multiple DUI offenses as a felony during the defendant’s entire lifetime.
If convicted for a DUI offense, the penalties can be quite severe. The stated purpose of these penalties is to reduce the number of drunk driving incidents, thereby increasing highway safety and reducing traffic fatalities. However, one unstated purpose is punishment, pure and simple. DUI punishment has become alarmingly strict over the past decade and only promises to become even more harsh.
Sentences may include fines, jail time, community service, restitution, suspension or revocation of the driver’s license and mandatory rehabilitation programs.
The punishment/s received depends upon a number of factors. However, in recent years state legislatures have passed minimum statutory penalties mandating specific sentences. These mandates take discretion out of the hands of a judge and imposes a standard, across the board penalty, regardless of the specific circumstances.
Other factors include the degree of discretion (if any) left to the judge, formal or informal sentencing guidelines, whether the defendant has any past convictions and the judge’s perception about whether the defendant is likely to commit further transgressions.
A qualified, experienced attorney is crucial during a DUI trial. Intimate familiarity with the penalties authorized or mandated by law, as well as the various sanctions that can be imposed is absolutely necessary for effective representation at sentencing.
Here is a short discussion on each type of penalty:
Someone convicted of a DUI offense can expect to pay a fine of a few hundred to several thousand dollars. However, the real impact goes far beyond this payment. Insurance premiums are sure to rise, and a person may lose their job as well as a consequence of driving drunk. In some instances, divorce or other family issues come as a direct result of a DUI conviction.
There can be defenses to paying these fines however. Courts have ruled if a defendant does not have the resources to pay, the fine in question is excessive and therefore, constitutionally prohibited.
The Supreme Court has even ruled jailing an indigent defendant, where the offense would otherwise not be punishable by incarceration, solely because he or she is too poor to pay a fine violates the equal protection clause of the Constitution.
A convicted DUI defendant may be ordered to spend time in jail. This can be from one day to several months in prison. Jail time may be increased if the defendant refused to take a breathalyzer test, fought with the arresting officer, has had prior DUI convictions or if someone has been victimized (hurt or injured) by the drunk driver offender.
If allowed by statute, a person convicted of a DUI offense may be offered some form of conditional probation. This is generally due to the massive overcrowding in the prison system, and not out of compassion for the defendant. Probation may be accompanied by restitution, fines, or repayment of court costs.
Because the stated point of probation is to foster and encourage rehabilitation, conditions that are neither reasonably related to that purpose nor necessary to the protection of public safety have been overruled as an abuse of sentencing discretion. Also, if the probationary period is greater than the maximum jail term a defendant could have received, that also has been held to be unlawful.
Alcohol rehabilitation programs (ASAP – Alcohol Safety Action Program) or treatments should absolutely be considered before sentencing for three very good reasons: First, the client may need it. Second, the sentencing judge may look more favorably upon a defendant who has taken positive, proactive steps to control his or her drinking problem. Three, a better suited treatment program may be established for the client’s individual personal and work-related needs.
If a defendant waits until after sentencing, they’ll be forced to accept the court’s recommendation, including frequency of visits and the specific facility to attend.
Unless it is manifestly unreasonable, community service has been held to be lawful as a condition of probation or suspension of sentence. Some state statutes allow for the performance of public work in lieu of restitution or jail time.
Statutes that permit community service require the court to set a specific number of hours of service the offender must perform, as well as performing the service under the eye of an appropriate agency. An experienced attorney’s help here is quite valuable, since they will know what programs are available and can make proper and timely recommendations to the court on their client’s behalf.
This is where a person is sentenced to home confinement, rather than a jail cell. If permitted by statute, this saves the state large sums of money that would otherwise be needed to supervise, house, feed and clothe the inmate. There are various electronic devices to ensure the home confinement is followed, as well as any other specific monitoring guidelines (such as prohibitions on consuming alcohol).
Despite the obvious convenience and frugality of these systems, many states still refuse to use them.
If a person is convicted for a DUI offense, one of the most common results will be a suspension or revocation of the person’s drivers license. In some cases a restricted driver’s license may be issued, allowing the convicted offender limited driving privileges, such as to and from work. These are generally limited to cases where “undue hardship” would result from failure to issue such a restricted driving permit.
State laws regularly authorize restitution as a condition of probation. Restitution is an interesting legal concept. Since restitution is not a fine, its amount is not limited by the statutory maximum fine. Since it is not a debt, it’s not dischargeable in bankruptcy. And even though it’s not placed in the same category of civil damages, restitution payments already made may be off-set against a subsequent award of civil damages for the same act.
Courts vary as to the types of damages for which restitution may be ordered, and to whom it may be given; although there is general agreement that the defendant’s criminal act must have caused the loss. Out-of-pocket losses such as medical expenses, pain and suffering, loss of wages and funeral expenses have all been upheld. The defendant may be required to pay interest on the restitution award if it is found he victim was actually deprived of the use of any money as the result of the defendant’s criminal offense.
Some states define “victim” to include any person who has suffered loss as the result of criminally injurious conduct. These statutes have allowed restitution payments for supporting a deceased victim’s dependents as well as to the victim’s parents. For the most part, courts are reluctant to order restitution to a third party without explicit authorization by law.
Courts require an inquiry into the defendant’s ability to pay before restitution is imposed. However, at least one court has held a restitution order imposed on an indigent defendant was not an unreasonable probation condition, since the defendant’s finances could improve during the probationary period and probation could not be revoked solely for nonpayment.
These are additional sanctions imposed by some states, ordering some offenders to install an ignition interlock breath alcohol device on their cars. These devices require the driver to blow into a breath analyzer. The device tests for alcohol – and if an illegal amount is detected, the car won’t start.
Some state laws require the DUI arrestee’s vehicle to be impounded. This does pose problems with due process, since a person is still technically innocent until proven guilty. In some cases, upon conviction the vehicle may even be forfeited and sold at public auction, with proceeds going to the state. Impoundment is said to be on of the most effective punishments in stopping DUI defendants from committing similar transgressions – at least in that particular vehicle.
Revocation and suspension go hand in hand with DUI convictions. Often confused as the same thing, they are distinctly different. For that reason, driving on a revoked license is a separate offense from driving on a suspended license. Revocation of a license is defined as “a formal action to terminate a license, which cannot thereafter be renewed or restored, but only replaced upon application for a new license.”
Suspension, on the other hand is less severe and results only in the temporary withdrawal of a person’s driving privileges.
The Department of Motor Vehicles (DMV) is required to revoke a person’s license upon receipt of final conviction for the offenses of manslaughter or vehicular homicide resulting from operation of a motor vehicle, and driving a motor vehicle while under the influence of alcohol or drugs.
If prior DUI convictions exist, a prudent and experienced DUI lawyer will absolutely challenge them. A prior conviction must have met due process requirements: The rights to counsel, jury trial and confrontation of witnesses must have been fulfilled or have been knowingly and competently waived.
Under the implied consent law, any person operating a motor vehicle is deemed to have already consented to a DUI chemical test. The implied consent law serves as a means for gathering evidence against a DUI defendant. Although the implied consent law is legal, it fails to mask the law’s fundamental fallacy: That a driver’s mere presence on a state’s highway indicates an agreement to submit to a chemical test for drugs or alcohol upon the lawful request of a police officer.
National DUI laws operate under the mistaken belief that revocation keeps DUI offenders from driving. This belief flies in the face of reality, ignoring the fact that revocation doesn’t keep DUI offenders from driving.
Currently, the federal government funds grants to states that implement certain DUI prevention programs. As a direct result, many states have implemented summary driver’s license suspension systems into their implied consent statutes for both failure of a chemical test and refusal to take a test. Under the guise of justice and public safety, states have managed to circumvent a suspected DUI offender’s constitutional rights and legally discourage refusal of chemical testing.
DUI lawyers attempt to remind courts that the Fourth Amendment of the United States Constitution states that, “the right of the people to be secure against unreasonable searches and seizures, shall not be violated.” Also, the Fifth Amendment of the United States Constitution states that “no person . . . shall be compelled in any criminal case to be a witness against himself.”
Although valid arguments have been raised regarding these rights in DUI cases, they have been repeatedly and routinely ignored. Again, it seems the courts have rejected the letter of the law when it comes to constitutional rights vs. the interest of the state.
As we mentioned beforehand, many states require a police officer to provide the DUI suspect with some form of warning or advisory. In this situation, DUI lawyers have argued that a refusal to submit to the test prior to knowledge of the consequences of that refusal should not be allowed to provide a basis for the suspension of the driver’s license.
This “prior-knowledge” caveat is important since most states have enacted some form of implied consent law that requires license revocation upon refusal to submit to chemical testing. Some states require detailed and specific warnings while others remain silent on the issue.
Where an implied consent statute does require a specific warning, DUI lawyers have met with success by challenging the penalty resulting from a refusal when warnings were not properly given. If the consequences of a refusal are serious enough, courts do compel strict adherence to the legal requirements.
Naturally, the consequences of refusal hinge on whether the DUI suspect submits to or refuses chemical testing. In cases where DUI suspects submit to chemical testing without being fully informed of how the test results may be used against them, the courts split as to whether these results should be suppressed or not. In the past, this argument has gone both ways.
Implied consent legislation has increasingly adopted the automatic administrative license revocation for failing a chemical test. In these jurisdictions the prosecution need prove only that a motorist had a specified blood or breath alcohol level. State legislatures have recognized the obvious conflict of interest a DUI suspect may have in “choosing” to take the test or not. In order to make it bit more palatable, the duration of the license suspension imposed for failing the chemical test is usually shorter than the suspension imposed for refusing to take one in the first place.
Every DUI statute prohibits an intoxicated person from driving or being in actual physical control of a motor vehicle. The problem arises where the law fails to explain exactly what they mean when they reference a motor vehicle. Ultimately, if the statute is not specific enough, the final determination is left up to the courts.
Most DUI laws use the terms “vehicle” and “motor vehicle.” The Uniform Vehicle Code uses the term “vehicle.” Obviously, the term “vehicle” is much broader in scope than specifically referencing a “motorized” vehicle.
For example, one court rejected an argument that the defendant’s automobile stuck in the mud and thus immobile was not a vehicle. Some statutes define a vehicle as a device to transport people; hence an industrial road roller would not be considered a vehicle.
Still, courts have determined that most devices with a motor satisfy the “vehicle” definition. Golf carts and farm tractors have been held to be vehicles even though they do not strictly transport people. On the other hand, bicycles, horses and snowmobiles have been held to be vehicles in some states, but not others. (Perhaps riding a horse while drunk should be classified as cruelty to animals!)
Whether a vehicle is operational may also be a deciding factor in trial. As a general rule, when a vehicle is incapable of operation, it is held not to be a vehicle for purposes of the DUI statute. A conviction was reversed where it was undisputed that the car in which the defendant was sitting was inoperable due to mechanical problems. However, a vehicle’s inoperability is not always a “get out of jail free” card. In one such case a conviction was upheld even though the vehicle was out of gas but near a gas station. The court held that the situation made it “reasonably capable of operation.” (Perhaps the gas station had unusually long pump hoses!)
A highway is typically defined as the “entire width between the boundary lines of every way or place of any type where any part thereof is open to public use for purposes of vehicular traffic.”
So what exactly is “public use?” The essential feature here is that a space or area not confined to privileged individuals or groups whose eligibility is decided by some predetermined criteria, is considered public. For example, a taxi cab employee parking lot posted as “no trespassing” was held not open to public use and thus not a highway within the definition of the law. Similarly, a store parking lot restricted to employee and customer use was not a designated “open to public” parking area and thus was also not a highway under the terms of the DUI statute.
However, parking lots for apartment buildings have generally been held to have sufficient “public use” to come within the highway definition, regardless of the fact that they are restricted to tenants and their guests. Condominium parking lots open to the public fall into the same category. Parking lots to social clubs, bars and banks have all been held subject to the DUI laws. However, testimony must be presented showing the nature of the parking lot to uphold a conviction.
On occasion, because the legislature did not specifically include them within the statutory definition of “highway,” parking lots were excluded from DUI laws. Also, some states have actively excluded parking lots from the legal definition of “highway’” In one instance a court refused to include it in a person’s prosecution for driving with a suspended license. In fact, a conviction was actually reversed where the offense occurred within an alley, since the term “highway” was not sufficiently defined in the state’s felonious driving statute.
Sobriety checkpoints waver on a razor thin edge between legitimate public safety and infringement upon a citizen’s Fourth Amendment protection against unreasonable search and seizure. Many states consider sobriety checkpoints constitutionally valid, while others do not.
The primary stated purpose of DUI sobriety checkpoints is to promote public safety and protect possible DUI offenders from the consequences of their own actions. Sobriety checkpoints appear to have become a favorite of law enforcement officials, as they have increased in frequency on many public roads. There is legitimate concern that these tactics merely anesthetize the general public to the loss of their individual rights. Anything can be construed to enhance the public safety, thus any reason to stop and search can be deemed valid and lawful.
It’s little surprise that courts generally find these checkpoints are a valid exercise of police power.
There are certain caveats in place, however. Usually frisking a driver is prohibited, unless the officer has a clear, valid and factual basis for believing that the driver in question was armed and dangerous.
If you have been charged with a DUI, DWI in Virginia or Maryland, please do not hesitate to contact us. Our attorneys take great pride in the qualtify of defense we provide our clients and we are here to hlep you.
The Standardized Field Sobriety Test (SFST) is a series of three tests developed by the National Highway Traffic Safety Administration (NHTSA). These tests are aimed at determining if there is probable cause to believe a person is intoxicated, and thus liable for arrest.
Police officers should undergo a program of formal training developed by the NHTSA in order to successfully use these methods. Doing so enables them to become more skillful at detecting DUI suspects, describing the behavior of these suspects when testifying, and presenting effective testimony in court. Formal administration and accreditation of the program is provided through IACP – the International Association of Chiefs of Police.
The three SFST tests are:
- the horizontal gaze nystagmus (HGN)
- the walk-and-turn
- the one-leg stand
These tests should be administered methodically, objectively evaluating the suspect’s measured responses.
Horizontal gaze nystagmus is an involuntary jerking of the eyeball which occurs naturally as the eyes gaze to the side at high peripheral angles. However, alcohol impairment exaggerates this effect. Also, when intoxicated, there is breakdown in the smooth and accurate control of eye movements.
In the HGN test, the officer slowly moves an object (pen or small flashlight) horizontally across the suspects field of vision, twelve to fifteen inches from the subject’s face and slightly higher than eye level, looking for three indicators of impairment in each eye:
1) Can the eye smoothly follow a moving object,
2) Is there a distinct jerking movement when the eye is at maximum deviation, and
3) Is the angle of this jerking movement onset within 45 degrees of center.
If, between the two eyes, four or more clues appear, the suspect likely has a BAC of 0.10 or greater. NHTSA research indicates these tests are accurate in approximately 77% of suspects. These tests are also indicators for using seizure medications, phencyclidine and a variety of inhalants, barbiturates and other depressants.
When conducting this test, the officer should check for both equal tracking ability and equal pupil size. Lack of equal tracking or equal pupil size may indicate blindness in one eye, a glass eye, or a medical disorder or possible injury. The officer should discontinue the HGN test if these symptoms appear and may need to seek medical assistance for the individual if a medical disorder or injury appears to exist – especially after a vehicular accident.
The walk-and-turn test and one-leg stand test are what’s known as “divided attention” tests. Most unimpaired people should be able to easily perform these tasks. Basically, they require a suspect to listen to and follow instructions while performing simple physical movements. People who’ve been drinking usually have difficulty in dividing their attention between simple mental tasks and physical movements.
In the walk-and-turn test, the subject is directed to take nine steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner. The examiner is looking for seven specific indicators:
- Can the suspect keep their balance while listening to the instructions (some suspects are so drunk they literally fall over while standing!)
- Does the suspect begin walking before the instructions are finished,
- While walking, must the suspect stop to regain balance,
- While walking, does the suspect touch heel-to-toe or not,
- Do they need to balance themselves using their arms,
- Do they lose balance while turning, or
- Do they take an incorrect number of steps?
NHTSA research indicates that 68% of individuals who exhibit two or more indicators in the performance of the test will have a BAC of 0.10 or greater. However – this does mean it has a “false positive” reading of almost 1/3 of all persons tested! This test also discriminates against those people with minor physical problems that wouldn’t affect their driving abilities but would skew the sobriety test against them.
In the one-leg stand test, the suspect is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (One thousand-one, one thousand-two, etc.) until told to put the foot down. This is usually for 30 seconds.
These are the four indicators of alcohol or drug impairment:
Swaying while balancing,
Balancing with one’s arms,
Hopping to maintain balance, and
Putting their foot down.
NHTSA research again indicates that 65% of individuals who exhibit two or more such indicators will have a BAC of 0.10 or greater. But then, this also indicates the same level of false positives – fully 1/3 of all persons tested. And as before, people with various physical limitations (obese persons for instance) will find it close to impossible to perform correctly.
The effectiveness of these field sobriety tests in court testimony depends upon the total number total of negative indicators exhibited. The greater the number of indicators, the more convincing the testimony. Because these Standardized Field Sobriety Tests are administered according to national standards and is supported by significant research, they have greater credibility than mere subjective testimony.
As mentioned, certain suspects such as physically disabled persons, are unable to perform the SFST. In such cases, some other tests are employed, such as counting aloud, reciting the alphabet or finger dexterity movements.
Several appellate court decisions have indicated that in administering a test requiring answers other than routine information-giving to someone in custody, (such as requiring them to indicate the date of their fifth birthday), a Mirada warning must first be given. (Which begs the question – if they correctly answer with just their month and date and not the specific year, is that considered valid?)
It is not unusual to come upon a case where the DUI suspect refused to take a blood alcohol test and blood was drawn anyway. In these instances, objections are made to keep the results of these blood tests from being entered as evidence at their trial on 4th Amendment search and seizure grounds, due process under 5th Amendment and 5th Amendment right against self-incrimination.
Usually courts deny the 5th Amendment claim against self-incrimination on the grounds that evidence in a DUI blood sample is physical and scientifically testable, and not communicative or testimonial, the latter being what the 5th Amendment specifically protects.
The 4th Amendment against unreasonable search and seizure is another matter. Courts generally agree taking of blood from a suspect falls squarely within the confines of 4th Amendment. Having said that, if the procedure does not jeopardize the DUI suspect’s health, it is generally considered reasonable, and thus legally permissible.
The key issue here is whether or not the defendant was under arrest at the time the blood was drawn. Federal courts have held if the DUI suspect is under arrest, forced blood tests are permissible.
Some courts have required police to obtain a search warrant before drawing the DUI defendant’s blood. The government has successfully countered these restrictions by arguing blood alcohol dissipates over time and this expediency negates the necessity for a search warrant. Also, the suspect may have left the hospital before the warrant could be obtained.
Compulsive blood draw is usually held invalid if other tests such as a breathalyzer test could have been performed in lieu of this more invasive method. Other factors, such as the time lapse between arrest and ordering the blood test, not taking the proper steps to inquire about the DUI defendant’s medical care or “jumping the gun” and ordering the test even though the DUI defendant would soon be released and be available for a blood draw anyway, all come into play.
However, reality is reality. Courts apparently have no qualms with the methods law enforcement has gone to in forcing a DUI arrestee to provide a blood sample. Some examples: Allowing police to place pillows over the heads of kicking and fighting DUI defendants, using stun guns after the suspect has been subdued, incorporating choke holds around the DUI defendant’s neck; and using batons or night sticks to beat the suspect into submission.
Although some courts have had problems with some of these more aggressive methods police have used, they usually hold that if medical personnel take the sample, the reasonableness requirement is met – even though there have been exceptions here as well in very egregious circumstances.
In one case, the court held that before a compelled blood sample could be taken by medical personnel, the state must prove: 1) there was probable cause to believe the accused committed either aggravated assault or vehicular homicide while under the influence, 2) urgent circumstances existed to forego the warrant requirement, 3) the test selected by the officers was reasonable and competent for determining blood-alcohol content and 4) the test had to be performed in a reasonable manner.
The New Jersey Supreme Court has held police may not use unreasonable force in obtaining a blood sample. If a suspected DUI driver refuses to submit, his driving privileges may be revoked.
Although the implied consent statute relates solely to the breath tests for DUI suspects, courts have cited the statute to lay the foundation for other rulings. For example, in determining whether the use of force in drawing blood is reasonable, three points are weighed:
the severity of the offense,
whether the suspect posed an immediate threat to the safety of others, and
whether the suspect was actively resisting arrest
If the suspect has a condition that would clearly invalidate the breath test data, the breath test will not be admissible in court.
If a DUI subject’s breath registers the presence of interference on two or more successive breaths, a valid breath sample is deemed impossible to perform. At this point, the only remaining option would be a blood draw.
Some things that could interfere with conducting a valid test are: Certain types of dental work, or wearing jewelry or ornamentation piercing through the tongue, lips, cheek or other soft tissues in the mouth. Prior to taking the test, the subject will be required to remove the objects. If that is not possible, then the courts have determined that under the implied consent laws forced blood sample tests are permissible.
The SRIS Legal Team in Virginia & Maryland
DUI laws in Virginia & DUI/DWI Laws in Maryland are strictly enforced and an experienced SRIS, P.C. Maryland or Virginia attorney can help protect your rights in Virginia & Maryland.
Your chances of successfully making defense arguments or finding mistakes that may have been made in your arrest are much greater if you have a Maryland attorney or Virginia attorney assisting you against your Vigrinia DUI or Maryland DUI charge. If you are faced with a DUI charge in Virginia or DUI/DWI in Maryland, a SRIS, P.C. lawyer is may be able to help you avoid or reduce the penalties or imprisonment you face.
At SRIS, P.C. we have defense attorneys who will do their best to help you fight a DUI in Virginia or Maryland.
If you’ve been arrested for driving under the influence (DUI) of alcohol or drugs in Virginia or Maryland, please make an appointment with one of our defense attorneys. Don’t wait until it’s too late to mount a defense. DUI’s are nothing to fool around with in Virginia or Maryland. Get the best legal advice you can.
You can visit us at one of our client meeting locations located in Virginia & Maryland or you are welcome to call us at 888-437-7747.
Although our DUI defense lawyers are licensed to handle DUI & DUID cases in Virginia, Maryland & District of Columbia, we only defend DUI cases in Virginia & Maryland at the present time.
Our Maryland & Virginia defense lawyers and staff who defend drunk driving cases speak the following languages in addition to English: Tamil, Arabic, Hindi, Telugu, French, Spanish, Malaysian, Cantonese & Mandarin.