Recent Changes in Maryland DUI Law

The following is excerpted from an interview with a Maryland defense lawyer who handles cases involving DUI and DWI charges.

What Are Some Of The Ways DUI Law Has Changed Recently In Maryland?

The law itself has not changed significantly, but some of the evidentiary standards and some of the obligations imposed on driver’s licenses have changed.

Blackwell And the HGN Test

To give an example, a couple of years ago we had State versus Blackwell. That’s one of the few defense-friendly cases that has come out recently for DUIs. This case dealt with the horizontal gaze nystagmus (HGN) test, the first field sobriety test administered by an officer, in which an individual tries to track a stimulus, such as the officer’s finger or a pen, with their eyes without moving their head. What the officer is looking for in that test is a wobble in the eye when it tracks, which is called nystagmus. Nystagmus is an involuntary physiological response that the individual has no control over and cannot feel if it’s happening.

The court of appeals said that the HGN test doesn’t show impairment, it just shows the presence of alcohol, and the state has to properly qualify their officer as an expert in order to admit that test. That has basically taken all the sting out of a test. Prior to Blackwell, an officer would write that the individual displayed six out of six clues on the nystagmus test, and judges would think that must mean impairment. Blackwell basically says that isn’t the case; that it shows the presence of alcohol, but not impairment. That’s one judge-made change in DUI prosecution in the past couple of years.

Mandatory Interlocks

On the legislative side, there have been a lot more mandatory interlocks. There have been interlocks mandated for individuals who are under 21 in violation of license restrictions. Until a few years ago, if an under 21 driver got a DUI, they wouldn’t be mandated to put an ignition interlock in their car.

Now, if an under 21 driver has a .08 or higher alcohol offense, they will be ordered by the MVA to participate in ignition interlocks for six months. Whereas before they could get a regular work permit, which is not a huge restriction on their life, now they are required to have interlock for six months. That trend is going to continue. We are going to see a lot more individuals required to have an interlock, even first offenders and relatively low BAC levels. There is a lot of lobbying from different organizations to make that happen.

The Law Is Forever Changing

The law is always in a state of flux. There are always new cases. The most recent case that has had an impact on my practice was a case in which the Court of Special Appeals ruled that the odor of alcohol is sufficient for the officer to continue the investigation of DUI and ask for a breath test, even with no bad driving.

That case was rendered in the context of an administrative hearing. However, State’s Attorneys are arguing, and some judges are accepting, that it applies in the context of the criminal court as well. That makes it tougher to argue that the officer didn’t have a reason to ask my client to blow, when all the Special Court of Appeals is requiring is an odor of alcohol with no bad driving and no other signs.

It’s getting tougher and tougher to defend these cases and it’s getting more and more important to have an attorney who knows not only how DUI law was five or ten years ago, but also knows how DUI law is today. You need somebody who stays abreast of all current changes in the law and who goes to continuing education training and really focuses on DUI.

How Have These Changes Impacted Your Defense Strategies For DUI Cases?

It has changed my willingness to request a motor vehicle hearing for some people, for the interlock restriction. I tell under 21 drivers that they might be better off taking a no driving suspension rather than doing an interlock, but everything is case by case. There is no one catchall strategy, that’s why it’s important to have competent counsel. Every case has individual facts and different circumstances that require a different strategy.

Have Any Changes In The Law Offered Advantages For DUI Defense Lawyers And Their Clients?

Legislatively, not really. Lately there have been a bunch of cases that make it tough for defense lawyers. There was a case that was just decided that says in the driver’s license context, the mere odor of alcohol is sufficient for the officer to move the case into the next stage of the investigation. That means that if an officer pulls you over and smells alcohol, if you either blow over a .08 or refuse to take the breath test that justifies him suspending your license. There is a check box on the form the officer uses to suspend the license that indicates odor of alcohol. With this new case, as long as the officer checks that box and signs the form, that’s almost enough to take away a couple of defenses on the MVA side.

Have The Perspectives Of Juries At DUI Trials Changed Over Time?

I have not noticed any real change in the feelings of the citizenry over time. Most of the changes that I’ve experienced came out of either the legislature or the judiciary. I don’t think that individuals, or potential jurors, feel any differently about DUIs now than they did five to ten years ago. All of the lobbying and pressure gets applied to the legislatures. There is not as much of a push to change the public’s opinion of DUI.

Are Juries More Or Less Apt To Trust Police And Prosecutes Than They Were Five To Ten Years Ago?

That depends where you are. In Harford County or Howard County it hasn’t changed. In Baltimore City or Prince George’s County it probably has changed a little bit. Jurors tend to be less trusting. That affects my approach in advising people on likely outcomes. In every case, I try to get my client off using every strategy that I can. It doesn’t change my approach but it changes my likelihood to go to a jury or not go to a jury.