Reasonable Articulable Suspicion and Other Traffic Infractions
Reasonable Articulable Suspicion, DUI, and other traffic infractions that will result in the stop of a motor vehicle on Maryland's Roads
What it means: In Maryland, as is the case in most states, a police officer must have observed a violation of Maryland's Traffic law in order to have a legal basis to stop a car; or in the alternative the officer must have "reasonable articulable suspicion" that a driver is operating her automobile under the influence of alcohol in order to stop that person's vehicle and conduct a further investigation with the driver. This is a point of serious contention in many cases and thereby serves as the basis for many legal defenses. Reasonable articulable suspicion (RAS) is defined by Maryland's Courts as less than probable cause and significantly less than a preponderance of the evidence; however, a stop based on RAS of intoxication, and not based on the officer witnessing a traffic violation, does require some reasonable articulation of the basis for the stop and not merely an inchoate or incomplete or unparticularized suspicion or hunch of possible criminal activity. See Blasi v. State of Maryland decided March 2, 2006. The Fourth Amendment to the United States Constitution is implicated anytime one's vehicle is stopped by the police and in order to pass constitutional scrutiny of the driver's right to be secure from unlawful searches and seizures, every traffic stop must have a precedent lawful basis. This writer was once in trial with a state's attorney and when counsel indicated that the Fourth Amendment protected the driver of the car from unlawful searches and seizures, the state said, the Fourth Amendment does not apply in DUI cases….. Well, have no fear, America is still a land of laws and the Fourth Amendment does apply.
Once the officer claims to have RAS, he can then stop the vehicle lawfully to conduct an investigation of the driver. Moreover, if the vehicle is stopped for a routine traffic matter, the police officer can formulate RAS upon "personal contact" with the driver in order to lawfully ask the driver to step out of the car and perform field sobriety tests (FST). Maryland Courts have held that a police office may ask a driver to step out of his vehicle for any number of lawful reasons, however the officer does need at least RAS to ask the driver to perform FST. The reader is cautioned that RAS standard is easy to obtain! If the officer smells alcohol on the driver's breath, that generally is enough to request the driver perform the tests. This discussion goes into more detail below on the FSTs but suffice it to say at this juncture, the field sobriety tests should not be performed when requested by the officer; one would simply be giving the officer additional evidence to use in Court.
Maryland Police offices are trained at the police academy in alcohol and DUI detection under a national standard promulgated by the National Highway Traffic Safety Administration. This is an organization that is responsible for the Field Sobriety Tests (roadside gymnastics) that suspected DUI drivers are requested to perform. The NHTSA organization puts out a training manual and an instructor manual for use by police in the training of their officers. A new manual is generated every few years in order to update the officer's training and make it easier to convict suspected drivers. Several of the NHTSA manuals have been provided here for your ready reference. Prior and subsequent manuals are similar in substance notwithstanding changes that are made by NHTSA when weaknesses are identified by police and prosecutors in Court.
The manual may be reviewed to identify specifically what the police are trained to look for both prior to the stop in the form of "bad" driving habits and subsequent to the stop in terms of "personal contact" observations. The police are trained to observe very carefully the behavior of the driver before, during and after the stop in order to formulate and document the case against the driver. Some of the driving habits that Maryland Police Officers look for in order to effectuate a lawful traffic stop in DUI cases are: (The actual text of the Maryland law appears below)
- Speeding. 21-801.1. The police are trained to look for vehicles that are proceeding 10 or more miles over the speed limit or 10 more miles under the speed limit. The reader is cautioned that driving too slow is tantamount to being a crime, so if one is lost or unfamiliar with an area, the law encourages you to drive at full speed or risk being pulled over to undergo an investigatory stop. Conversely, if a Maryland driver pulls off the road completely to obtain directions, she is also susceptible to a police investigatory stop in some settings. If the officer then smells alcohol on the driver's breath, the DUI process begins.
- Failure to stay right of the double line marker. 21-301(a). If a driver crosses over the yellow line, even if just momentarily, this is a ticketable offense and therefore the officer may lawfully pull you over. Once pulled over, the officer begins the "personal contact" phase of the stop which includes smelling inside the vehicle for alcohol, evaluating speech pattern, dress and the like. The mere smell of alcohol is generally enough to effectuate and arrest.
- Negligent Driving 21-901.1. This is defined as driving in a careless or imprudent fashion that endangers property or the person of another. Often times this charge is tacked onto a Maryland DUI charge even if there is no particular basis for the charge.
- Accident. If a driver is involved in a single car or more accident, the officer will conduct an investigation. Again, the odor of alcohol will be enough to request FST tests. The FST or almost never done adequately which will result in an arrest. Even if by some miracle they were completed satisfactorily, it is more likely than not that an arrest will be effectuated upon the driver. The Maryland Driver is cautioned that Miranda warnings are not required in the "investigation" phase of a stop, therefore any questions asked and any answers given will be used against you in a court of law and Miranda rights do not have to be given at this stage. Therefore, do not voluntarily incriminate yourself, do not answer questions.
- Failure to stop after an accident/Failure to Return to the Scene. 20-103. This is an important one because if there is an accident, and the driver fails to remain at the scene afterwards, the state will typically file this charge. It is an important charge because it carries 8 points if convicted. This writer however often finds the state to be overly aggressive on the charge where single car accidents are involved. That is, a Defendant is not required to remain at the scene indefinitely, so leaving the scene and coming back the following day may be appropriate under certain circumstances.
- Unsafe lane change. 21-309(b). This charge is one of the most common reasons for a stop in Maryland DUI cases. Cars are often times seen switching lanes. However, when the sun goes down and cars switch lanes, this becomes an excellent predicate for a traffic stop. Interestingly, this charge can be difficult to prove in Court because the basis of the charge is the driver's subjective evaluation of the propriety for the lane change. It can be difficult for the state to prove this charge unless an accident ensued or almost ensued therefrom.
- Following a vehicle too closely. 21-310(a). One must leave adequate stopping distance behind the vehicle directly in front. Typically this is considered to be 10 feet or 1 car length for every 10 miles per hour. A rear end accident could be a good indicator one was driving too closely to the car in front.
- Weaving on the road. This is another common charge and one that this writer takes issue with. The Maryland police always say the Defendant was weaving on the road or swerving his car between lanes. I have a problem with this one because the police use the term too freely without exactly explaining what they mean. That is, it is not illegal to switch lanes. It is not illegal or uncommon or dangerous to do it frequently as long as it is done safely and with the use of blinker. However, once the sun goes down or it's after 12 p.m., then switching lanes generally becomes weaving and it becomes reasonable articulable suspicion for the officer to effectuate a traffic stop. Once that happens, the highly subjective observations of the officer take over and a DUI arrest results.
- Defective Car part. This is a favorite among law enforcement. If the Maryland driver's operation is fine and therefore does not render a basis to stop the car, the keen officer is still obliged to lawfully stop the driver if there is a defective car part, such as a burnt out license plate light, or brake light or similar item. If the headlights aren't on when they should be, if the tires protrude too far out on the car or another defective condition the officer has a lawful basis to pull the car over and start the "personal observation" phase of the stop pursuant to her NHTSA training.
The point is that it is not illegal to have a drink at a bar or restaurant and then get in your car and drive home. It is illegal to do so while intoxicated or under the influence of alcohol or drugs. The problem is, that in the police officer's zeal to prove her case, many times innocent citizens who have never been in trouble or handcuffed in their life, are stopped, investigated, hand cuffed, arrested and treated like criminals when they should not be. Resulting in tremendous anxiety, a police record, substantial costs and personal embarrassment, and this is even if the Maryland driver wins his DUI case.
Most people are law abiding citizens and have no desire to be treated like criminals. Unfortunately, the system is so focused on making DUI arrests the system and those entrusted with the responsibility of carrying it out- are now running perilously close to treading on citizen's constitutional rights.
Example: Citizens are now compelled to give evidence against themselves and in violation of the Fifth Amendment in the form of a breath test or face significant "civil penalties" such as loss of license and enhanced criminal penalties at Court.
Example: Everybody is familiar with Miranda warnings and the right to counsel before being questioned, but with DUI and alcohol offenses, Maryland citizens still have the right to communicate with counsel prior to performing any test, but the police are not required to advise the Maryland driver of said right. See Motor Vehicle Association v. Atterbeary). Therefore in the heat of battle, not knowing one's rights and being cajoled by the officer to perform various tests, voluntary yet unknowing decisions are made by uninformed citizens.
It is important to know your legal and lawful rights prior to a Maryland DUI arrest, but if you don't know them before the stop, it is incumbent upon all Maryland drivers to contact experienced and qualified DUI counsel after the stop in order to protect your liberty, your license and your rights.
Courts and Judicial Proceedings Article 10-303
Time Limits to perform Intoxication Test
What it means: Maryland Law Courts and Judicial Proceedings Article 10-303 says that a breath or blood specimen must be taken within certain time limits. For the test of breath, the limit is two (2) from the time of "arrest". For the test of blood, the time limitation is four (4) hours from the time of arrest. Unfortunately, the remedy under Maryland law for the police officer's failure to administer the test timely is not the suppression of the test score but rather suppression of the "presumption" that the state normally enjoys under Maryland Law.
That it, when a Maryland driver blows a .08 he is "presumed" under Maryland law to be driving under the influence. If the driver blows a .07 they are "presumed" to be driving while impaired. These presumptions apply under the law irrespective of the person's actual driving habits at the time of the arrest. These legal presumptions can be very difficult to overcome for a .08 or more because the driver can be convicted on that number alone with very little other evidence. See "Presumptions" herein, Maryland Law Courts Article 10-307.
If blowing in the machine is such powerful evidence in favor of a Maryland DUI, the question becomes what should a driver do regarding the taking of a breath test. The answer is not always cut and dry but typically for a first DUI offense, the MVA penalty is somewhat punitive so blowing in the machine may be acceptable as long as the Defendant will not face significant consequences at work.
However, if the potential arrest is a second, third or more for the Maryland Driver, blowing in the machine is likely a bad idea as it tends to make the state's case against the driver. Additionally, since this is a multiple offense, jail time is a real outcome for the driver. That is, as the number of offenses increase, so does the state's desire to place the defendant in jail. In addition to that, as the driver becomes a multiple offender, the state can and normally does file a "subsequent offender" notice which allows the state to effectively double the normal consequences against the driver. That means that if the driver would normally have exposure to 1 year in jail as a result of the offense, the state can double that to 2 years in jail for the same offense.
Therefore, the bottom line is that multiple offenders generally should not blow in the machine because it tends to make the case against them. First time offenders may be alright as long as nothing unusual might happen as a result of the offense, but bearing in mind that the act of blowing in the machine goes a long way to securing a conviction.
Finally, Maryland Law has recently changed regarding a driver's refusal to take the test. In the past, the "refusal" was not admissible in court against the driver because such evidence essentially requires the defendant to incriminate himself. The law however has changed and now the driver's refusal can be used in Court against him. Maryland Law Courts Article 10-309. So much for the fifth amendment! In fact, the Court can even impose an additional sentence now for the driver's knowing and voluntary refusal to take a breath test, although this writer has not seen that happen in practice.
The actual Maryland Code sections discussed herein appear below.
Driving while Under the Influence or Impaired
What it means: The following is the actual language of the Maryland DUI and Maryland DWI Law. This is informative and useful reading for Maryland drivers that have been so charged. When clients come into my office they generally want to have their tickets explained to them, they want to know why they received three (3) alcohol tickets for the same offense. This section explains the various charges and why suspected DUI drivers generally get three tickets.
Maryland DUI Law 21-902
Transportation Article 21-902(a)1 says that a Maryland driver may not attempt to "drive a vehicle" while under the influence. By itself, this section is easy to deal with because the State would have to prove, based on officer observations, how or why the driver was driving under the influence. Under certain circumstances however, this can be difficult to do if the driving was not driving badly. Unfortunately, the officer is often times assisted in his observations by the driver's willingness to undertake field sobriety tests. This is a big mistake.
These are the voluntary "tests" or exercises that the police ask the driver to perform on the side of the street typically with cars whipping by in the early morning hours. These are tests of agility and balance performed under the most strenuous and difficult circumstances. The tests are essentially designed for failure! It is highly unlikely that an average person under normal circumstances would be able to perform the exercises in a satisfactory fashion in order to "pass" them. Additionally, once a police officer smells alcohol on a driver's breath, she is going to be arrested irrespective of the results, the purpose of the tests at this point is simply to build a case against the driver.
Different field tests have been evaluated and scrutinized by Maryland's Courts. One test that has received significant attention is the Horizontal Gaze Nystagmus test. The nystagmus test is the evaluation by the officer of the driver's involuntarily eye movement jerking while tracking an object. While the officer & NHTSA puts significant credibility in this test, the Maryland Court of Appeals in the Schultz case has identified 38 causes for this condition which are not alcohol dependant. The Schultz case and the United States Federal Court for the 4th Circuit in a lengthy and well written decision by Magistrate Judge Grimm in the Horn case are both very interesting reading on the Field Sobriety Tests.
It is this author's opinion that a Maryland driver should not engage the field sobriety tests for three reasons.
First, the tests are absolutely engineered against the driver. Unless the driver is an Olympic athlete, the person is not used to standing on one leg or walking one foot directly in front of the other. If not used to doing that, you probably won't do very well the first time you are asked to do so, especially considering the pressure you are under at the time.
Second, you should not do the tests because they are not required of you and they won't help you in any way. If the officer pulled you over, it is for a reason. If he smelled alcohol on your breath, your going to be arrested, period! Your results on these alleged tests will not get you off the hook. You are going to be arrested, so don't give the cops more evidence to use against you in Court.
The third reason you should not take the test is because the scoring of the test is essentially subjective by the officer. That is, whatever he writes down is what the Court assumes happened. You probably don't want your future in the hands of the officer that is trying to arrest you. Best not to give them more ammunition to use against you, they will have enough by the time the evening is over.
Maryland Law, Transportation Article 21-902 (a)2 is the most difficult to deal with. It is known as the "per se" statute. This statute is truly scary because the Defendant is guilty if the machine says the Defendant is guilty. No evidence of driving is necessary beyond a lawful reason for the initial stop. If the cop has a lawful reason to stop the car and the Defendant subsequently blows a .08 or higher, he is "per se" guilty of the charge under Maryland DUI Law. Now, there are many things that a qualified DUI attorney can look at and attempt to do for you at this point, but needless to say, one's position at this time is far more precarious than it would be if there was no number at all. As stated above, if the Defendant is a multiple offender, in all likelihood, he probably should not blow in the machine at all because of possible severe consequences. This section and the preceding section carries 12 points on a guilty conviction, one year in jail and a $1,000 fine, maximum penalty.
Maryland DUI Law, Transportation Article 21-902(b) is the lesser offense of all the DUI offenses, it is essentially the catch all section. In cases where there is no number or the number gets suppressed the State generally will pursue this section. It is a little less punitive than the other sections and it can have certain beneficial qualities for repeat offenders. This section carries 8 points on a guilty conviction and 60 days in jail, maximum.
The police often charge the driver with three tickets because they don't know which offense the driver might end up with in Court. If qualified counsel is able to beat back the charges to something less than you started with, the police have to have properly charged you at the outset or this could cause a problem for the State in Court.
Also, the Maryland Driver is advised not to pay any of the tickets that you receive prior to going to Court. The reason is that the police charge everything they can because they don't know how its going to work out in Court so you don't want to pay the tickets before court when half of them will go away. Second, the fines on the tickets themselves are rarely what is imposed after going to Court so you don't want to pay them before Court.
Maryland DUI Law, Transportation Article 21-902(c)This section deals with the use of drugs, prescribed or otherwise and driving. Needless to say, one cannot ingest illicit drugs and drive an automobile on Maryland's roads. However, a lesser known fact is that one cannot ingest prescribed medications, be under the influence of that medication and then drive a vehicle. If a Maryland driver is taking Valium, as prescribed and is stopped for being under the influence or causing an accident, the fact that the drug was prescribed to that person is not a defense in the resulting charges.
However, Maryland Law Transportation code section 21-902 (c) 2 can be useful for while it takes a defense away, it also gives a little back. That is, if the Defendant was unaware that the drug or combination of drugs and alcohol would case the driver to be in an effected state, the driver may be able to advance this defense. The Defense is not as cut and dried as it might sound however because mostly all prescription drugs come with a warning which tends to place the driver on notice. This author however was able to successfully invoke this defense in a very serious DUI case involving several accidents, which resulted in all alcohol charges being dropped. Please see testimonials for more.
The actual code sections described herein appear below.