Driving: Private v. Public Property

10 As a tangential issue, respondent argues that Automotive Boulevard is not a highway or "private property that is used by the public in general" on behalf of his assertion that the implied consent provision of Section 16-205.1(a)(2) was not triggered by his conduct. The record before the ALJ disclosed that Automotive Boulevard originates at Briggs Chaney Road, and serves as a common road running between multiple automobile dealerships, a carwash, and one or more automobile servicing centers located along the thoroughfare. Thus, it was proper to conclude that respondent's presence on Automotive Boulevard satisfied the location requirements set forth in Section 16-205.1(a)(2).


at the time of his arrest.

The facts of the case sub judice are distinguishable from our decision in Atkinson. In

Atkinson, the appellant was parked lawfully on the side of the road, sleeping, with the keys

in the ignition but the engine not running. Id. at 202, 627 A.2d at 1020. Based on those

facts, we held that Atkinson was not in "actual physical control" over the vehicle at the time

of his arrest, and thus, could not be driving or attempting to drive his vehicle while

intoxicated. Id. at 215, 627 A.2d at 1027 ("We believe that the General Assembly,

particularly by including the word 'actual' in the term 'actual physical control,' meant

something more than merely sleeping in a legally parked vehicle with the ignition off."). We provided the following rationale for our holding:

Neither the statute's purpose nor its plain language supports the result that intoxicated persons sitting in their vehicles while in possession of their ignition keys would, regardless of other circumstances, always be subject to criminal penalty. . . . Although the definition of "driving" is indisputably broadened by the inclusion in S 11-114 of the words "operate, move, or be in actual physical control," the statute nonetheless relates to driving while intoxicated. Statutory language, whether plain or not, must be read in its context. . . . In this instance, the context is the legislature's desire to prevent intoxicated individuals from posing a serious public risk with their vehicles. We do not believe the legislature meant to forbid those intoxicated individuals who emerge from a tavern at closing time on a cold winter night from merely entering their vehicles to seek shelter while they sleep off the effects of alcohol. As long as such individuals do not act to endanger themselves or others, they do not present the hazard to which the drunk driving statute is directed. Thus, rather than assume that a hazard exists based solely upon the defendant's presence in the vehicle, we believe courts must assess potential danger based upon the


circumstances of each case.

Id. at 212-13, 627 A.2d at 1025-26 (internal citations omitted)(emphasis in original).

In reaching our holding in Atkinson, we set forth six factors which must always be

taken into account when assessing the potential danger presented by the various

circumstances of each case:

1)  whether or not the vehicle's engine is running, or the ignition on;

2)  where and in what position the person is found in the vehicle;

3)  whether the person is awake or asleep;

4)  where the vehicle's ignition key is located;

5)  whether the vehicle's headlights are on;

6)    whether the vehicle is located in the roadway or is legally parked.

Id. at 216, 627 A.2d at 1027. No one factor will be dispositive of whether an individual was

in "actual physical control" of the vehicle. Id. at 216, 627 A.2d at 1028.

Thus, we review the ALJ's decision in light of the six factors for assessing whether

an individual was in "actual physical control" as annunciated in Atkinson. The record before

the ALJ demonstrated that at the time Officer Mondini arrived on the scene, Atterbeary was

not simply passively sitting in his car sleeping off his intoxication outside of a tavern. It is

undisputed that upon the officer's arrival, respondent was awake and seated in his parked car

on Automotive Boulevard outside of a car dealership with the engine running. Officer

Mondini acknowledged that the car had power windows and that he had been informed by

the fire and rescue personnel that they had asked Atterbeary to open the window. The record

does not indicate whether the engine of Atterbeary's vehicle was running when fire and


rescue responded to the scene, nor did Atterbeary state whether he had only started the ignition at the request of the fire and rescue personnel for the sole purpose of lowering his


The circumstances of the present case are also distinguishable from the hypothetical

scenarios posed in Atkinson where an individual leaves a tavern intoxicated and proceeds to

sleep off the intoxication in a legally parked car in the parking lot of the drinking

establishment. See Atkinson, 331 Md. at 212, 627 A.2d at 1025-26. Rather, we must

consider "what the evidence showed [Atterbeary] was doing or had done, and whether these

actions posed an imminent threat to the public." See id. at 216-17, 627 A.2d at 1028.

In the present case, because Atterbeary was sitting in the driver's seat, awake, and

with the engine running, he was capable of attempting to drive his vehicle at the time the

officers arrived at Automotive Boulevard. Atterbeary was not taking shelter passively in his

car while sleeping off the effects of his inebriation. To the contrary, the facts of this case

provide strong indicia that Atterbeary posed an imminent threat to public safety. We

conclude, therefore, that the record provided a sufficient basis for the ALJ to determine that

Officer Mondini had a reasonable articulable suspicion that Atterbeary had been in "actual

physical control" of the vehicle upon his arrival at the scene as used in the statutory definition

of the term "to drive," thereby triggering the implied consent testing provision of Section 16-

205.1(a)(2). See Gore v. State, 74 Md. App. 143, 149, 536 A.2d 735, 738 (1988)(holding

that appellant was driving where the evidence showed that although the driver was not


moving the vehicle at the time of the officer's arrival, "the car key was in the ignition in the 'on' position, with the alternator/battery light lit; that the gear selector was in the "drive" position; and that the engine was warm to the touch").

For the foregoing reasons, we affirm the decision of the Circuit Court for Howard County.



Maryland Law

Transportation 16-117.1. Expungement of driving record

What it means: In Maryland, as in most states, a DUI or driving under the influence, stays on your record permanently (or atleast for a very long time). I am often asked by my clients when a PBJ or probation before judgment can be removed from their record. The answer is that the driver must wait ten (10) years to do so and then may apply for expungement as long as there is no alcohol charge pending at the time the request for expungement is made.

That State however feels as if alcohol charges should never be expunged so they may try to fight such an expungement request. Additionally, many judges on the bench will ask the defendant in Court if she has ever been convicted of such an offense before. The judge will then use an affirmative answer against the Defendant. Thus, even if a Defendant did get an expungement, it may not result in anticipated positive consequences.

The code section follows: Transportation 16-117.1

Transportation 16-405. Harmful effects on licensee's employment

What it means: A Maryland driver may have an accumulation of points for a variety of matters not including a DUI or alcohol related charge. Generally speaking, a licensee faces suspension at 12 or more points. However, if the Maryland driver must drive for employment related activities, the legislature has increased the points to 16 points for suspension and 19 points for revocation. This is a very useful code section.

However, the Maryland driver is advised that this section does not apply in DUI or alcohol related matters. That is, if any of the points that a driver has are as a result of a guilty conviction for DUI or DWI then this added leeway does not apply.

The code section: Transportation 16-405

Maryland DUI Law: Courts Article 10-307.

Intoxication test results; presumptions arising

What it means: This section explains the presumptions that the fact finder, Judge or Jury will be instructed to use based on the number that the Maryland driver blows when he is stopped for DUI and provides a breath sample within two hours of the arrest or a blood sample within four hours of the arrest. As stated above, if the sample is not obtained in this time frame, then the presumptions do not apply, however, the number can still come into evidence. The difference being that the state would have to provide expert testimony to the fact finder as to what the number means, whereas the presumptions alleviate that need. In the latter case, the fact finder needs to be told what the numbers mean through expert testimony.

.08 means that the Maryland driver is presumed to be driving under the influence.

.07 means the driver is presumed to be driving while impaired.

Less than a .07 and there is no presumption at all.

If the driver blows a .05 or less, the driver is presumed by law, not to be under the

influence nor driving while impaired.


However, the Maryland driver is cautioned that even in light of the foregoing presumptions, a fact finder is still free to find that a person was in fact under the influence even if the numbers do not match. While this is generally rare occurrence, there are several factors which may lead a fact finder to this conclusion even in the absence of a corresponding number.

A .02 leads to a presumption that the driver was driving with alcohol in his system. This is relevant for minors or others who have a restriction on their license against operating a motor vehicle with alcohol in their system. This section would be a violation of that restriction.

It is therefore important that qualified counsel represent your interests whether a high number is blown or not. As indicated above, the Maryland driver is cautioned against giving a breath sample when requested to do so if he is a multiple offender. The sample does in fact go a long way to helping the state prove the case against the driver, and multiple offenders have significantly more exposure than first time offenders.

The driver is further cautioned that prior to giving any breath sample to the police, the police must advise the driver of his rights pursuant to Transportation Article section 16-205.1. This form, knows as a DR-15 is mandatory and must either be read to the driver or given to the driver to read. The form must be supplied to the driver before the test is taken. The driver is normally requested to sign the form to evidence the fact that it was explained to the driver. Importantly, the driver has the absolute right to speak with counsel prior to giving any breath sample. Sometimes the officer will deny the right to counsel which will hurt the State's case both at the MVA hearing and the criminal trial. Therefore, it is good practice to ask for and to speak with counsel from the police station prior to giving any breath sample. The are several cases on point one such case is MVA v. Atterbeaury, which is discussed in these materials.

Maryland DUI Law, Courts Article 10-307

Maryland Law: Criminal Procedure, S 6-220

Probation Before Judgment (PBJ)

What it means: A probation before judgment disposition is sought by first offenders that do not get found "not guilty." Probation before judgment is important for first time offenders and sometimes repeat offenders with a very significant time between offenses (generally 10 years or more) because is spares the Maryland driver most of the punishment of the conviction. A probation before judgment is just that, it is "probation" before the judge renders judgment or renders a conviction in the matter. A PBJ is not a guilty conviction! Because the defendant is not found guilty the 12 points that a DUI carries do not apply. Because there is no guilty conviction, the Defendant does not go to jail. Also, the significant $1,000 fine is also not imposed. Also, because a PBJ is not a guilty conviction, if the Defendant were to obtain another DUI in the future, this earlier PBJ could not be used against the Defendant for subsequent enhanced penalty purposes as discussed above. Therefore, a PBJ is widely sought after in those cases where it is unlikely that the Defendant will be found not guilty.

This section is important for two other reasons, first, a driver under Maryland law cannot receive more than one PBJ in a five year period. In practice judges do not do that anyway, most will not even do it after 10 years but certain cases may warrant more lenient behavior so it is important to know that a judge cannot legally render a PBJ finding within 5 years of another such result.

Second, judges are required to impose some form of alcohol education and training in alcohol related matters therefore it is wise for the Defendant to seek out and complete alcohol education classes prior to the trial date. This is important because it satisfies the judge's requirement to impose this sentence while at the same time showing the judge that the Defendant takes a voluntary role in recognizing the mistake. This writer has had one of the most strictest judges scrutinize a first time offender and then recognize on the record, the fact that the driver immediately sought counsel and immediately enrolled in an alcohol education class following his DUI. This fact resulted in a positive result for this driver. Conversely, this writer has also had first time offenders denied a PBJ when alcohol education was not engaged prior to the trial date.

It is important therefore to find counsel that knows what appropriate actions need to be taken before your hearing date and then it is important for you to follow the recommendations of counsel.

Maryland Criminal Law: S 6-220. Probation before judgment

Read More: Part 7

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