Baldwin & Briscoe P.C.
301-862-4400
22335 Exploration Drive Ste. 2030
Lexington Park, MD 20653
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DUI/DWI – Handling a Traffic Stop

 

  You’ve been out on the town, or you’re on your way home from a friend’s house when you see the blue lights in your rearview mirror.  You know that you’ve had three beers, or was it four?  In any event, there is a chance that you may be impaired or intoxicated.  The decisions that you make in the next few minutes could have a huge impact on your future.  Over the past couple of decades there has been considerable advocacy against drinking and driving.  Groups such as MADD and SADD have raised the public consciousness.  Moreover, police have gotten aggressive, setting up sobriety checkpoints and taken additional measures to take drunk drivers off of the roads.  While we can certainly understand the public benefit to maintaining safety on the highways, there are significant personal consequences that arise out of a DUI traffic stop.  Our sole goal is to assist our clients in an informative, nonjudgmental way, to minimize the harmful effects that can follow once the mistake has been made.

  The scope of this article deals only with the actual traffic stop and does not address issues concerning what to do after you have been arrested for a DUI or DWI offense. Read our article: DUI/DWI – Will I Lose My Driver’s License?

 

The Preliminary Breath Test

  Under Maryland’s Implied Consent law, when a driver is lawfully stopped and the officer who has reasonable grounds to believe that the person has been driving or attempting to drive while under the influence of alcohol, or while impaired by alcohol, the officer may request that the driver submit to a preliminary breath test (PBT) administered by the officer, using a device approved by the State Toxicologist.  The officer can use the results of a preliminary breath test as a guide to decide whether an arrest may be made.  The results may not be used in any court action.  The refusal to take a preliminary breath test does not affect the driver’s legal rights and has no bearing on the driver’s obligation to take a subsequent chemical test.  Drivers should generally decline to submit to a PBT.  Agreeing to take a PBT generally just provides the officer with additional probable cause to support an arrest.

 

Should I submit to a Chemical Test for Intoxication?

  If the officer suspects that a driver has driven or attempted to drive a motor vehicle on any highway, or private property that is used by the public in general, and that driver is detained on suspicion of driving or attempting to drive while under the influence of alcohol or while impaired by drugs and/or alcohol, the officer may request that they be tested for intoxication.  There is no requirement to consent to the test, unless the driver has been involved in an accident resulting in the death or life-threatening injury to another individual. 

  Refusing to take a breath test may be a prudent strategy depending on the circumstances, and depending on your level of intoxication, but generally is not likely to help your cause.  In some instances, where the officer has no other evidence of impairment, however, refusing to take a test for intoxication will benefit your cause.  There are two problems here: (1) the driver often does not know whether the officer has evidence of impairment or not; and (2) refusal to take the test will result in the suspension of your license, even if it saves you from a potential DUI.

  One smart strategy, where a driver has consumed alcohol and is potentially impaired, is not to engage in any conversation with the officer.  When the officer approaches the vehicle, the driver opens the window just a crack to hand the officer their license.  An even better strategy is to simply hold the license up, so that the officer can see the license through a closed window. Or simply open the window a tiny bit to hand them through.  Refusing to open your window makes it harder for the police officer to establish that they reasonably believed that you were driving or attempting to drive while intoxicated.  Some people will make a note explaining that they do not wish to open their window and ask that any citations be placed under the windshield wiper.  They will place the note and their license/registration in the bag, so they are clearly visible and place it in the window for the officer to see. 

  If you are stopped, an officer will usually engage in conversation upon approaching your car window.  You are not obligated to speak to the officer.  By rolling down your window and speaking to the officer, you are potentially providing evidence of intoxication that the officer would not otherwise be able to obtain.  In almost every DUI case that we see, the officer reports that they smelled the odor of an alcoholic beverage on the person’s breath, that the eyes were glassy and bloodshot and that the driver slurred their speech.  You can, by taking the steps indicated in this article, prevent the officer from obtaining any of this evidence in your case.  If you are stopped in a situation where there is no chance that you are impaired or intoxicated, and there are no illegal substances in your vehicle, we do not recommend taking these steps as you will only raise the officer’s level of suspicion and it is likely that the officer will look for additional reasons to prolong the stop and have you exit the vehicle.

   A prudent strategy, in addition to holding up your license and registration is to make a note indicating that you do not wish to speak to the officer and that you wish to speak with your attorney immediately.  You may want to make a sign with the following information:

  1.       I refuse to make a statement or answer any questions.

  2.       I wish to speak with my attorney immediately.

  3.       I do not consent to be questioned without my attorney present.

  4.       I will not speak with you until my attorney is present.

  5.       If I am taken into custody, I will not answer any questions.

  6.       I decline to participate in any field sobriety tests.

  7.       I refuse to consent to any search of my car or my person.

  8.       If I am not under arrest, I wish to leave right now.

  9.       If I am under arrest, please advise me so at this time.

  10.     I wish to speak with my attorney prior to giving any breath or blood sample.

 

Consequences of Refusal or Failure of Test

  If the person consents to the test, and fails the test, they can face a suspension of their license.  Refusal to take the test can also result in a license suspension of 120 days.  Taking the test and failing it, however, can result in a suspension of 45-90 days.  The time periods stated are for first-time offenders only.  Your license could be suspended beyond these periods if you have any prior offenses on your record.  For a nonresident driver, Maryland can suspend the person’s privilege to drive in Maryland, and their home state may take additional action to suspend their driver’s license. 

 

  Refusing a breath test does not guarantee you will not be convicted of driving while impaired or driving under the influence.  The state may argue in a criminal case that you refused the test because you knew that you were intoxicated. 

 

Roadside Field Sobriety Tests   

  In addition to the PBT, the officer may request that you participate in one or more roadside field sobriety tests.  You are under no obligation to participate in these tests and we recommend generally that you do not do so.  There is generally no benefit to doing the roadside sobriety tests and by agreeing to do the tests, you help the state build its case against you.  The tests are designed to give the police probable cause to arrest you.  If you refuse to participate, you are likely to be arrested, but you will minimize the evidence that the state can use against you in court.  The chance that you will convince an officer that you are not impaired, by successfully performing the tests, is minimal.  You should simply tell the officer, politely, that you do not wish to participate.

 

  There are three tests which are commonly used in Maryland:

            1.       The Horizontal Gaze Nystagmus Test.  In this test, the officer holds an object, such as a pen and tells the driver to follow the object as he moves it from side to side.  The officer is looking for the onset of nystagmus, which is a twitching of the eyeball, prior to a 45 degree angle, and watching for the ability of the driver to follow the stimulus back and forth.  Nystagmus, however, is a common condition and may be indicative of a medical condition other than impairment by alcohol.

            2.       The Walk and Turn.  In this test, the officer directs the driver to take nine steps along a line, heel-to-toe, turn around and take nine steps back.  The officer observes your balance, whether you stop during the test and whether you step off the line.

            3.       The One Leg Stand.  The driver is told to stand still, with the arms at their side and raise one leg six inches off the ground and count out loud until the officer directs you to stop.  The officer is checking to se if you can keep your balance, if you raise your arms, hop, sway, or put your foot down.

 

If You are Arrested

  If the officer arrests a person after finding probable cause, the officer will confiscate the driver’s license and issue an Order of Suspension with a temporary license that is valid for 45 days.  Although you obtain a temporary license, it is illegal to drive within twelve hours after an arrest for driving while impaired or driving while under the influence of alcohol. 

  The Order of Suspension will contain a hearing request form.  It is important to complete this and send it in, with the required fee, within ten (10) days of the arrest.  You must include a check for $125 payable to the Maryland State Treasurer.  A hearing allows you to challenge the suspension or in the alternative request that a restricted license be issued that allows you to drive to and from work, and for medical treatment, during the course of the suspension.

  Contact an attorney immediately.  The sooner that you contact an attorney, the more time the attorney has to investigate and prepare your case for trial. 

  Do not try to make your case with the officer.  Generally, pleading your case with an officer who has just, or is about to, arrest you is not going to be successful and may result in you, unwittingly, providing evidence that can be used by the state.  Just cooperate with the officer, be as nice as possible without volunteering any information, and sit patiently until you are released or can reach your lawyer.

  Make a written summary concerning everything that you can remember about the traffic stop.  You should probably do this before reading the Order of Suspension, which will have the officer’s account of what happened.  This summary will be helpful later on, when you go to court and when you appear for a hearing on your license suspension. 

  Get into an alcohol education program prior to going to court.  You want to start building a case for mitigation as soon as possible, in the event that you plead guilty, or are found guilty in court.  This will help you get a better sentence, and may allow you to stay out of jail.

 

 

The Law Offices of Baldwin & Briscoe, P.C. also offers these services:

Bankruptcy and ForeclosureBusiness LawCivil LitigationCriminal DefenseEmployment, Disability, and Consumer RightsFamily LawGovernment Contracts LawIntellectual Property, Personal InjuryReal Estate, Social Security Disability & Workers’ Compensation and Wills, Trusts, & Estates




Contact Us

The Law Offices of Baldwin, Briscoe & Steinmetz, P.C.

22335 Exploration Drive

Suite 2030

Lexington Park, MD 20653

301-862-4400 Phone

301-862-3009 Fax

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Our Attorneys

Samuel C.P. Baldwin, Jr., Esq.

Janice Briscoe, Esq.

Richard J. Steinmetz Jr., Esq.

David J. Hebb, Esq.

Sandra Kaufman Jonasen, Esq.


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With an office conveniently located in Lexington Park, The Law Offices of Baldwin, Briscoe & Stienmetz, P.C. serves clients in the counties and cities of Lexington Park, Leonardtown, Hollywood, Mechanicsville, Loveville, Helen, Breton Bay, Chaptico, Charlotte Hall, Golden Beach, Avenue, La Plata, Waldorf, Newburg, Port Tobacco, Port Charles, Solomons Island, Prince Frederick, Chesapeake Shores, Hughesville, Benedict, Nanjemoy, Lusby, Port Republic, St. Mary's County, Charles County, Calvert County, Prince George's County, Southern Maryland.


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