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DUI/DWI

A DUI conviction may carry criminal penalties including fines, jail time, probation, and community service.

If your stopped for DUI usually this is what occurs; First, you will stopped for some reason, for example - speeding, broken tail light, head lights not on, not wearing a seat belt or erratic driving etc. The officer will pull behind you with his lights and possibly sirens on. At some point in time the police officer will approach your vehicle. Make sure you keep your hands where the police officer can see them. If it is at night, you may also want to turn your interior lights on. When the officer approaches he will usually tell you his/her reason for stopping the vehicle and ask for your license and registration. Sometimes the officer will even ask if there waqs a reason for your speed. Perhaps at that point in time the officer will smell the odor of alcohol on your person and possibly your breath. At the point of contact the police officer will also be able to observe your eyes and your speech. He/she will then most likely ask if you have had anything to drink, and by that the officer means any alcoholic beverage. The minute you tell the officer that you consumed any alcohol; he/she will ask you to exit the vehicle to perform field sobriety tests. Some officers will tell you that they want to make sure you are okay to drive. You can refuse to do the field sobriety test, however, you will be immediately arrested. You can also refuse the breathalyzer test but that refusal will result in sanctions against your driving privileges.

Usually the field sobriety tests consist of multiple tests. The first test is the HGN (Horizontal Gazing Nystagmus). This test is commonly known as the eye jerk test. The officer will take a pen and make a series of passes from left to right and then right to left across your "plane of vision." You will be instructed to follow the pen with your eyes only without moving your head. Most people almost always move their head to follow the pen even through instructed not to. If you do move your head, at some point in time during the HGN test the police officer will hold the pen at approximately 45 degree point. The officer will then check to see if there is any eye jerk movement.

The next test that will be given by the officer is commonly known as the walk and turn test. This test consists of a specific set of instructions from the police officer. You MUST pay close attention to the police officers instructions. The police officer will then give instructional phase of the test. Your failure to follow his/her directions, points will be attributed to your lack of sobriety. DO NOT START THE TEST BEFORE YOU'RE INSTRUCTED TO DO SO! Essentially, the officer, will instruct you while keeping your hands by your sides, to take 9 steps heel to toe out and back in a straight line, performing a military style turn after the first 9 steps. Your failure to keep heel to toe or stepping off the line or raising hands for balance will be points that the office will attribute to your lack of sobriety. If you are overweight, have poor lighting conditions, or are physically limited in that you have physical injury, physical handicap or possess some physical condition such as scoliosis, pigeon toed or one leg being longer than the other, you should immediately tell the officer that you have physical limitations. I myself am 58 years old and overweight and I could not perform this test dead cold sober.

Another test that the officer will ask you to perform is commonly known as the one leg stand test. This test requires you keep your hands at your side, elevating your foot up in a 45 degree direction approximately 6-8 inches off the ground, counting out loud one thousand one, one thousand two one thousand three etc. until the officer is satisfied. Your inability to maintain balance, keep your foot raised and count as instructed will be factors that the officer will score against your sobriety.

Additionally, two other field sobriety tests which may be given by the police officer are commonly known as the count backwards test and the abc test. Usually the officer will ask you to count backwards from say from the number 45 to the number 15. The officer may also ask you to say the alphabet (not singing or humming) from say the letters E-S. Your failure to properly count or end on the appropriate letter or number will result in points attributing to your lack of sobriety. The problem with these test which are commonly known as divided attention tests. Is that they are extremely subjective. This means that it is entirely up to the police officer's interpretation as to whether you properly performed the test that you were given. You may be nervous, may have physical limitations, you may not comprehend exactly what you are required to do and that you must do these tests exactly how the police officer demonstrates them. His/her instruction will be given in a short period of time and you not having performed them on a regular basis you may not perform as you were instructed. After the police officer has conducted the field sobriety tests you will most likely be told to put your hands behind your back and told that you are being arrested for the suspicion of drinking and driving.

Remember, what you say will be held against you! For example, answers to questions like-

  • Were you coming from a bar?
  • How many drinks did you have at the bar?
  • Do you think you should be driving?
  • When the last time you consumed alcohol?

Be careful what you say! Loose lips sink ships!

At some point in time you will be brought back to the station, read your dr-15 advice of rights. The dr-15 advice of rights essentially informs you of various MVA sanctions that will be imposed upon you for your failure to take the breathalyzer test. For example, if you blow over a .15 or you refuse the breathalyzer test the only thing that the administrative law judge at your MVA hearing will be able to offer you so that you can drive is the interlock system. The interlock is a device that is hooked up to your car for one year in which you have to blow into in order to drive. This interlock device will run you approximately $100 to install and $100 month for twelve months. If you take the breathalyzer test and blow a .14 or under you will be suspended for a period of time but may be able to have your suspension modified to go to and from work for alcohol counseling and court order activity such as reporting to probation.

So what should you do? First, DO NOT DRINK AND DRIVE! It's not worth it!

If you have had too much to drink call a friend or take a taxi. Although, a taxi may cost $75, a DUI could cost you up to $5,000 or more. When you figure in all the costs; attorney fees, court costs, fines and interlock device, lost wages, maybe even losing your job, it's not worth it! So my advice is if you have had even one drink do not get behind the wheel of a vehicle. But if you have been charged with a DUI call my office immediately at 410-641-2999 so that I can evaluate your case and see if the police officer crossed the line or failed to properly administer the tests. Schultz v. State, 106 Md.App. 145, 664 A.2d 60 (1995).

What you should also know is under Sites v State, 300 Md. 702, 481 A.2d 192 (1984) before you submit to the breathalyzer test you have a right to confer with an attorney as long as that consultation does not interfere with the police officers test administration. The police officer has a 2 hour time limit from the time of your arrest, to have you submit to the breathalyzer test.

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Frank Benvenuto, P.A. Attorney at Law
12930 Center Drive
Ocean City, MD 21842
Phone: 410-641-2999
Toll Free: 888-312-8342
Emergency: 443-783-2451
Fax: 410-641-0853
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Berlin Office
10031 Old Ocean City Boulevard
Suite 108
Berlin, MD 21811
Phone: 410-641-2999
Toll Free: 888-312-8342
Emergency: 443-783-2451
Fax: 410-641-0853
Map and Directions

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