Should I request an attorney before I take the breath test?

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April 12, 2015 Should I request an attorney before I take the breath test?Absolutely. Upon arrest for DUI, you should ask to speak with an attorney immediately or as soon as possible. Do not make any statements to the police. There is an attorney (public defender) on call for that purpose. The officer will help you get in touch with them.

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Man Swallows Penny Before Breathalyzer

“The Dean of DUI Attorneys”

DUI Defense Exclusively Since 1979

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MOTORCYCLIST WITH NO ALCOHOL IN HIS BLOOD WAITS FIVE MONTHS BEFORE DUI CHARGE IS DISMISSED

In September of 2014, CW was driving his motorcycle in northwestern New York and collided with another motorcycle. A police officer responded to the accident scene and reportedly noticed the odor of alcohol on CW. The officer asked CW to take a breath test, and CW refused. The officer ultimately obtained a blood sample from CW and charged him with DWI (known as OVI in Ohio). The officer then sent the blood sample to be tested. The test revealed a blood alcohol content of 0.00. Last week, five months after CW was charged with DWI, the case was finally dismissed, as reported by the Genesee Sun.

If this case occurred in Ohio, it would have likely gone through the same process. When an officer in Ohio suspects a driver is under the influence, the officer requests a breath test, blood test, or urine test. In cases where a blood test or urine test is used, the results of the test are not immediately known to the officer. Despite not having the test results, officers routinely charge people with OVI immediately after the blood or urine sample is obtained. The blood or urine sample is then sent to a laboratory for analysis, and the analysis typically is not completed until weeks or months after the person is charged.

In cases involving blood/urine tests, there are two types of OVI charges which may be filed. First, the suspect is charged with OVI ‘impaired’. The ‘impaired’ charge accuses the suspect of operating a vehicle with driving ability impaired by alcohol and/or drugs. The ‘impaired’ charge is not dependent on the results of a blood/urine/breath test. Second, if the test results show an alcohol or drug level at or above the prohibited concentration (the ‘legal limit’), the suspect is charged with OVI ‘per se’. The ‘per se’ charge accuses the suspect of operating a vehicle with a prohibited alcohol or drug level. The ‘per se’ charge does not depend on whether suspect’s ability to drive was impaired.

In the case of CW, the officer likely charged CW with DWI ‘impaired’ on the day of the accident. If the blood test revealed an alcohol level above .080, CW would have also been charged with DWI ‘per se’. As the blood test revealed there was no alcohol in CW’s blood, CW was never charged with DWI ‘per se’.

It was appropriate for the prosecutor to dismiss the ‘impaired’ charge. I suppose the prosecutor could have maintained the charge and tried to prove CW’s ability to drive was impaired by alcohol. Doing so could end badly for the prosecutor, as rules of professionalism require a prosecutor to seek the truth and only pursue a charge when the charge is supported by probable cause.

Probable cause is also the standard for an officer to file charges. The blood test result makes me wonder what evidence the officer observed before charging CW with DWI. The report by the Genesee Sun references the odor of alcohol but does not mention any evidence indicating CW was under the influence. It does mention his refusal of the breath test, but that is not necessarily evidence he was under the influence: it may be evidence he was justifiably indignant about the officer’s request.

Charging people with OVI without test results can have unfortunate consequences, as it did for CW. Hopefully he will have the case sealed so there is no public record he was even charged with DWI. Having the public records sealed, however, does not undo the embarrassment he experienced when he was arrested or the anxiety he experienced for five months while the case was pending.

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Stamm Testifies Before the Maryland House Judiciary Committee

Stamm Testifies Before the Maryland House Judiciary Committee - Maryland DUI Lawyer Blog Maryland DUI Lawyer Blog Published by Maryland DUI Attorneys :: Goldstein & Stamm, P.A. HomeWebsiteAttorneysPractice Areas Contact Us « Previous | Home Stamm Testifies Before the Maryland House Judiciary Committee |Share March 4, 2015
On March 4, 2015, Leonard Stamm testified in opposition to House Bill 532 which would require officers to tell suspected drunk drivers in a fatal or life threatening injury crash that they are required to submit to an alcohol test. Here is the written version of his testimony:

My name is Leonard Stamm. I have been in private practice defending persons accused of drunk driving and other crimes for over 30 years. I am currently Assistant Dean of The National College for DUI Defense, a nationwide organization with over 1300 lawyer members. I am a former president of the Maryland Criminal Defense Attorneys' Association. In 2014, I had the privilege of co-authoring an amicus brief filed by the National Association of Criminal Defense Lawyers and The National College for DUI Defense in the Supreme Court case of Missouri v. McNeely

, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) . The Supreme Court held that a drunk driving arrest does not automatically create exigent circumstances that would relieve the police of their obligation to first seek a search warrant based on probable cause before compelling a driver to submit to a blood test.
For cases where the arrest occurred before April 17, 2014, the day that McNeely
was decided, many courts have upheld admission of tests on the ground that where police objectively reasonably relied on a statue not yet held to be unconstitutional, that it would be on it inappropriate to apply the exclusionary rule and suppress the blood test. However, for cases where the arrest occurs after April 17, 2014, that claim of objectively reasonable reliance on an unconstitutional statute is less likely to prevail. The end result of passing the proposed amendment to § 16-205.1 could ironically be that tests showing the driver to be impaired by alcohol and/or drugs would likely be suppressed and withheld from the fact-finder.

This is part of a trend which is disturbing to many lawyers of differentiating between the legal requirements for investigating and prosecuting drunk drivers in court on one hand and taking their licenses and privileges to drive on the other. The Fourth Amendment requires articulable reasonable suspicion to stop a suspected offender and probable cause to make an arrest and conduct a search. Courts hearing criminal cases must adhere to these requirements. However, in license suspension hearings before the Office of Administrative Hearings, the Fourth Amendment has been held not to be an applicable. MVA v. Richards

, 356 Md. 356, 739 A.2d 58 (1999). By regulation, stops can only be challenged where the officer acted in bad faith. COMAR 11.11.02.10(H); MVA v. Lipella, 427 Md. 455, 48 A.3d 803 (2012)(the officer need not recite the basis for the stop at the MVA hearing).
Section 16-205.1 requires that a police officer have "reasonable grounds" to "detain" the driver and request or compel a test. However, the Court of Appeals has defined "reasonable grounds" as the minimal standard of articulable reasonable suspicion in Motor Vehicle Admin. v. Shepard
, 399 Md. 241, 923 A.2d 100 (2007). Although § 16 205.1 uses the word "detain," do not be fooled, in 99 out of 100 cases "detain" means "arrest." The Court of Appeals has has further held that "reasonable grounds" exist when an officer merely detects the odor of an alcoholic beverage. Motor Vehicle Admin. v. Spies, 436 Md. 363, 82 A.3d 179 (2013).
A result of these decisions is that because the requirements of the Fourth Amendment and license suspension hearings are different, officers are given conflicting commands. So while the Fourth Amendment requires the officer to satisfy the higher standard of "probable cause" to make an arrest and conduct a search, the officer is required to arrest somebody based on the minimal standard of articulable reasonable suspicion under § 16-205.1 and compel a test based on the lesser standard. The effect of this is that license suspensions will be imposed on some people who are not deserving because they made the wrong choice of refusing a test even though it could have exonerated them, and some court cases will be stopped in their tracks and officers subject to lawsuits for acting in violation of the Fourth Amendment.
The proposed amendment to § 16-205.1 is unconstitutional for two reasons, one - it does not require probable cause and two - it ignores the warrant requirement. The result is license suspensions may be easier to obtain but it will be harder to obtain convictions in court. Instead of modifying the language in the current version of section 16 205.1, to reinforce an unconstitutional provision, if the legislature is really serious about prosecuting drunk drivers who cause accidents resulting in life-threatening injury and/or death, a wiser choice for this body, in my humble opinion, would be to make the administrative and judicial standards the same, by requiring probable cause for an arrest and the subsequent test and to put in place procedures for officers to easily obtain a warrant by telephone or email. While there may be cases where exigent circumstances exist that could relieve the police of the necessity of obtaining a warrant, that exception could easily be included as part of a warrant requirement consistent with the Fourth Amendment. These procedures have been adopted and implemented in majority of jurisdictions where warrants are sought in compliance with the Fourth Amendment on a regular basis. There is no justification for not implementing them here.

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What you must know before you talk to the police

DetailsCategory: DUI Blog

By Jessica Towne

So, you've been arrested, say for something simple, like DUI. You've been read the Miranda warning and you feel that you know what is going on. I'd suggest you call your lawyer before you talk. Because you probably don't know the police don't have to follow the same rules that everyone else does. For instance:

5 scary things about police interviews

1. The police interrogators are allowed to lie to you.
They can make stuff up, like "we have you on camera" or "an eyewitness described you to us" or "your buddy is next door telling us that you planned this together" even if there is no video, no eyewitness and your buddy has exercised his right to remain silent (or is off at grandma's house in Florida). No judge is going to rule that your confession is inadmissible because the police lied. The jurors don't care that the police lied, and even though the judge will instruct the jury that what the police say in the recording is not evidence, the jury may consider the police statements. We just don't know.

2. The police cannot make any promises. The police have no influence with the prosecutor. If the only reason you answer questions is that the police say you can have a cigarette, or a Coke, or go to the bathroom, those are not promises that will make any statement inadmissible in court. The police officer doesn't "know the judge" or have any influence over a possible sentence or how the prosecutor will draw up charges. If the officer does make a promise, your statement may be inadmissible, but the police know where the line is drawn, and they dance right up to it.

3. Police interrogations do not have to be video or audio recorded. Law enforcement guidelines and standard operating procedures are not law. There is no requirement anywhere that your interrogation be recorded. Yeah, that's a two-way mirror, and yes, that hole in the wall has a camera, but don't assume that the recording equipment works.

4. The police interrogator is checking with his supervisor before ending your questioning. He or she is not just merely stretching his legs, or going out for a smoke. Someone is making sure you've told them everything they didn't already know so that a conviction is all but certain.

5. It's never to late to stop talking. You can stop answering questions any time you want to. Let's say it's late, you're sleepy, you forgot that you're not required to answer anything at all. Suddenly, you remember that you should remain silent. Even if you've been answering questions for the past half-hour or more, you can say "I'm not going to say anything else. I want an attorney."

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