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On Alternative Sentencing in DUI Cases

There are lots of possibilities for sentencing. They can include jail, probation, community service, court-mandated interlock, home detention, or weekend incarceration rather than straight jail time. In Maryland, the important one for first offenders is probation before judgment (PBJ). Probation before judgment is not a criminal conviction and doesn’t carry any points. It also doesn’t appear on your driving record as a conviction. That means that if anyone asks if somebody who’s received probation before judgment has actually been convicted of DUI, then the answer to that question is no.

Requirements for Alternative Sentencing

Any sentencing is discretionary by the judge. The most important thing that an individual who hopes to receive a sentence other than a conviction or an incarceration needs to do is to show that judge that they’re taking the situation seriously. The primary way that people can do that is by pursuing a program of alcohol education and treatment.

The level of treatment is dependent on the nature of the offense and the facts of the case, for example, whether or not it is your first offense, or if there was an accident, or if there was a high breath alcohol content. The kind of treatment that would be appropriate for a first offender who is stopped for a tag light and blows a .09 is different from what would be appropriate for a fifth offender who was involved in an accident and blows a .3.

Impact on an Individual’s Record After a DUI

There are three options for DUI cases. If you are found not guilty or the case is dismissed, that is the best option because the arrest can be expunged, so there wouldn’t be a record of the arrest, let alone a conviction. The next best is probation before judgment. With probation before judgment, there are no points and no criminal conviction.

The arrest is still searchable and discoverable because you can’t expunge an arrest for a DUI if you received probation before judgment. You can honestly report that you haven’t been convicted, but the arrest would still be discoverable. The worst-case scenario is a full conviction, where you’d have to report that you’ve been convicted, you’d receive points, and it would also appear in your driving record. The arrest cannot be expunged in that case either.

Mitigating the Damage from a DUI Charge

The most important kind of mitigation that an individual can do when they’re charged with a DUI is alcohol treatment.

On a first offense, typically, an outpatient program is sufficient. The most minimal alcohol treatment program in Maryland is a 12-hour alcohol education with no follow-up treatment. There is also alcohol education plus treatment, which basically works out to be a 26-week program. There are 12 weeks of education and then the remaining 14 are for actual treatment. That can be in either an individual or group setting.

For more serious or repeat offenses, some type of inpatient treatment is probably appropriate. I recommend at least a weekend of inpatient treatment for second offenders. For third or subsequent, I recommend a more significant period of inpatient treatment, up to and including a 28-day inpatient full rehab. Generally, judges will give day for day credit. They’re not required to do it, but as a general rule, judges will give day for day credit for time spent in inpatient treatment.

That means that if an individual is sentenced to a single weekend of incarceration and they do a weekend inpatient program, the court may not give them any kind of incarceration. In the same vein, if the court is looking to incarcerate them for a month or 28 days, and the individual does a 28-day inpatient program, they may end up not going to jail at all.

Trends in Maryland Law for DUI Penalties

There is a pending change, not so much for alternative sentencing, but for sentencing enhancements. The extent of interlocks has been the big theme in the past five to ten years of changes in Maryland law.

More and more offenders for DUIs, including first offenders, are being required to install an interlock, either as part of the court penalty or part of the driver’s license penalty. There is talk of extending the program yet again this legislative session to mandate that any under 21 restricted licenses be required to participate in ignition interlock. Pretty much every first offense DUI is going to be required to do some type of interlock. We’re not there yet, but that certainly is the way that the law is trending.

The changes in interlock have not had much effect on sentencing yet. Down the road it will. Right now, most of the interlock extension has been on the MVA side, on the driver’s license side, which is not something in which the judge will be involved. Some judges will impose interlock in the condition of probation, though, as well. If they do, then that is court-mandated.