FIGHTING THE LICENSE SUSPENSION WHEN CHARGED WITH DRIVING WHILE INTOXICATED OR UNDER THE INFLUENCE OF ALCOHOL OR DRUGS IN MARYLAND

When faced with a criminal charge of driving a motor vehicle under the influence of alcohol and/or drugs, one should hire a lawyer to not only represent you in a court of law for the pending criminal charges, but also to represent your interests at the administrative hearing conducted at the Department of Motor Vehicles (“DMV”). In addition to the criminal DUI charges brought, Maryland’s DMV can also take a variety of administrative actions against you whether or not you are actually convicted. So, be aware that these are two separate forums, each with potentially draconian outcomes.

When properly contested, a license suspension can be avoided because these administrative hearings can often be won. Even if you lose, you have an opportunity to question the arresting officer.

Residents of Maryland can have their driver’s license suspended prior to entering a courtroom based on the results of the chemical test or for refusing a breath test. Non-residents can lose their privilege to drive in Maryland prior to trial. The details of these possible driving penalties will be the subject of next week’s blog.

These hearings can often be won based on following technical defenses including:

• The driver wasn’t properly advised of his rights (because the officer’s explanation of the state’s “implied consent law” was defective in some way);
• The officer failed to show up at the hearing;
• The “stop” or arrest wasn’t justified;
• The driver wasn’t allowed an independent test;
• The test wasn’t administered in time;
• The driver wasn’t allowed to call an attorney;
• The officer was outside his jurisdiction;
• The officer’s report wasn’t sworn;
• There was no certificate by the machine operator;
• The form wasn’t dated;
• A temporary license wasn’t provided;
• The driver didn’t “refuse” the test (because he had asthma, the mouthpiece was clogged, he was confused about his rights, etc.); and
• There’s no proof the driver was actually driving.

These hearings are often successful, if pursued, with a lawyer familiar and practiced in this specific area of law. Even if the driver loses at the hearing, the officer’s deposition can be useful at trial because the officer is usually neither prepared nor properly coached. Generally, an attorney will question the officer about every detail and aspect of the arrest, including the roadside tests and personal observations. The hearing transcript will often then be used to limit his testimony or to impeach him at a suppression hearing, preliminary hearing or at trial. Also, if the officer’s testimony demonstrates weaknesses in the state’s case, or if it’s inconsistent with his report, it can be used in plea bargaining at the criminal trial.

There is no downside to these hearings. Protect yourself accordingly - hire an attorney that speaks the language of the administrative law world.

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New Tag, MVA, DWI, DUI, License, suspension

Preliminary Breath Test Results – Admissibility in Administrative Proceeding

Case: Motor Vehicle Administration v. Weller, 390 Md. 115 (2005).

Decision: A State statute prohibiting the admission of evidence of a preliminary breath test result in any court or civil action does not apply to an administrative hearing.

Background and Summary: On May 16, 2004, Steven Weller was detained by a police officer on suspicion of driving while under the influence of alcohol. Mr. Weller failed the field sobriety tests, and a preliminary breath test indicated a blood alcohol concentration of 0.16. He refused to take a chemical breath test, which resulted in an administrative order to suspend his driver’s license, which he contested at an administrative hearing.

The results of the preliminary breath test were introduced as evidence at the administrative hearing, and the administrative law judge found that Mr. Weller had been driving while under the influence of alcohol and that his license had been suspended eight years previously for refusing to take a chemical test. The administrative law judge stated she was concerned about the dangerousness of the driving and the amount of alcohol that appeared to have been ingested and that his latest alcohol treatment evaluation may not have included complete information about earlier problems with drinking and driving. Accordingly, the administrative law judge suspended Mr. Weller’s driver’s license for one year.

Mr. Weller sought judicial review by a circuit court. The circuit court held that the results of the preliminary breath test were inadmissible at the administrative hearing and found that the administrative decision was arbitrary and capricious. The court issued an order reversing the decision of the administrative law judge and vacating the license suspension. The Motor Vehicle Administration filed a writ of certiorari to the Court of Appeals, which agreed to hear the case.

The court found that, while State law prohibits the admission of evidence relating to a preliminary breath test in any court or civil action, an administrative hearing is not a court or civil action. The court noted that the definition of a “court” under State law does not include an administrative hearing. The court also found that an administrative hearing falls outside the scope of a “civil action.” The court also noted that administrative hearings are agency proceedings, which are regarded as more informal and not bound by the technical rules of evidence.

The Court of Appeals determined that the circuit court improperly substituted its judgment for that of the Motor Vehicle Administration. The court stated that a reviewing court should defer to an agency’s interpretation of the facts if the record supports them. The court found that the administrative law judge did give proper consideration to the issues raised and properly exercised discretion in suspending the driver’s license. Last, but not least, the finding was that there was no indication that the administrative law judge acted illegally or in an arbitrary or capricious manner and remanded the case to the circuit court to reinstate the driver’s license suspension.

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