DUI/DWI Maryland - Probable Cause

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Field Sobriety Tests

These are not really tests at all; rather, they are physical agility exercises that are subjective in nature, and designed for the accused to fail.

Most people don't realize that these tests are optional... and the officers who give them sure won't tell you, but they are. You are perfectly free to politely refuse to take the Field Sobriety Tests in their entirety.

These "tests" may include the following:

Nystagmus: The officer will position an object (such as a pen) 12 inches away from the driver's face, and move the object from side to side while watching the subject's eyes. The officer is looking for involuntary jerking or trembling of the eyeball. This jerking or trembling may be a sign that the subject has consumed an intoxicant.

Walk and Turn: The subject takes nine heel-to-toe steps along a line, turns, and takes nine heel-to-toe steps back. The officer is looking to see if the accused can keep their balance, follow instructions, begin early, stop during the test, leave space between heel and toe, step off the line, or lose balance while turning.

Standing on One Leg: The accused is instructed to stand with heels together, arms at the side, then raise one leg six inches off the ground while counting out loud until the officer allows the accused to stop. The officer is looking for raising of the arms, swaying, hopping, putting the foot down, inability to stand still, body tremors, muscle tension, and any statements made by the accused during the test.

Finger to Nose: This test requires the suspect to place his or her feet together while standing straight with eyes closed, and bring the index finger to the nose as ordered by the officer. The officer is looking for body sway, body tremors, eyelid tremors, muscle tension, or any statements made by the accused to support a finding of intoxication.

The Rhomberg Balance test: The accused assumes a position of attention, closes their eyes, tilts their head back, and estimates 30 seconds. The officer is looking for the inability to stand still or steady, body or eyelid tremors, opening eyes to maintain balance, swaying (either front to back or side to side), muscle tension, or statements made by the accused. The officer is also testing the suspect's internal clock, which will usually be slow in the case of alcohol or depressants, or fast in the case of stimulants.

Other Field Sobriety Tests include finger tapping, hand clapping, counting backwards, or reciting the alphabet.

These are supposedly tests that are designed to check "divided attention", a critical skill in operating a motor vehicle. However, there are many people who, for many innocent reasons, cannot perform these tests to the officer's satisfaction, and pay the price with a D.U.I. arrest.

One of the most dangerous Field Sobriety Tests is the Preliminary Alcohol Screening test, also called the PAS test. This is a portable breath test to determine the presence of alcohol. The officer is supposed to advise the suspect that the test is voluntary. Many times, they do not.

The most important thing to know about the Field Sobriety Tests

ARREST - To stop; to seize; to deprive one of his liberty by virtue of legal authority.

Whether a detention was an investigatory stop or a full-blown arrest is a question of law subject to de novo review. See U.S. v. Diaz-Lizaraza, 981 F.2d 1216, 20-22 (11th Cir.'93). Courts have stated that '[i]n determining 'when' a person is arrested, we ask at what point, 'in view of all the circumstances surrounding the incident, a reasonable person would have believed he [she] was not free to leave.' ' U.S. v. Hastamorir, 881 F.2d 1551, 1556 (11th Cir.'89) (quoting U.S. v. Hammock, 860 F.2d 390, 93 (11th Cir.'88)); see also U.S. v. Vargas, 643 F.2d 296, 98 (5th Cir. Unit B'81); 2 John Wesley Hall, Jr., Search and Seizure 22:3 at p.87 (2d ed. '93). Strictly speaking, this particular formulation of the standard for determining whether an arrest has occurred is not a completely accurate statement of the law, for 'an investigatory stop is not an arrest despite the fact that a reasonable person would not believe he is free to leave.' (U.S. v. Hastamorir, 881 F.2d at 1556). This is so because even during an investigative stop, which by definition is not an arrest, it would be clear to a reasonable person so detained that he was not free to leave during the stop. See 2 LaFave, Section(s) 5.1(a) at 393 (1994 Supp. at 135).

It appears that some Court's unfortunate articulation of the 'reasonable person/free to leave' test for judging arrests resulted from collapsing the Royer-Mendenhall standard for judging when a 'seizure' occurs into the test governing when such a seizure qualifies as an arrest. See United States v. Hammock, 860 F.3d at 393 (stating that an arrest occurs when ' 'a reasonable person would have believed he was not free to leave.'') (U.S., 446 U.S. at 554 (Stewart & Rehnquist, JJ., concurring)).

Of course, whether a seizure has occurred and whether an arrest has occurred are separate and distinct inquiries, the latter class of detention being a subset of the former. See 2 LaFave, Section(s) 5.1(a) at 392-93; Richard A. Williamson, The Dimensions of Seizure: The Concepts of 'Stop' and 'Arrest', 43 Ohio St.L.J. 771, 802-17 (1982) (hereinafter 'Williamson').

So, what is the appropriate standard for judging whether an arrest has occurred, as opposed to a mere investigatory stop? No brightline test separates an investigatory stop from an arrest, and that consequently the question whether a seizure constitutes an arrest is one that one can only be answered on a case-by-case basis in light of 'all the circumstances.'

An arrest occurs whenever a reasonable person 'would have understood the situation to constitute a restraint on freedom of movement of the degree ... [ordinarily] associate[d] with [a] formal arrest.' U.S. v. Corral-Franco, 848 F.2d 536, 540 (5th Cir.'88) (quoting U.S. v. Bengivenga, 845 F.2d 593, 596(5th Cir.), cert. denied, 488 U.S. 924 ('88)); see George E. Dix, Nonarrest Investigatory Detention in Search and Seizure Law, 1985 Duke L.J. 849, 927 ('Dix'); accord Berkemer v. McCarthy, 468 U.S. 420, ('84) (a person is 'in custody' for Miranda purposes when he is 'subjected to the restraints comparable to those associated with a formal arrest').

The inquiry is simply whether a reasonable person would have believed that he was 'under arrest' (as that term is commonly understood) at the time of his seizure. U.S. v. Patterson, 648 F.2d 625, 632 (9th Cir.'81); see generally Williamson, 43 Ohio St.L.J. at 815-16. Thus, if the circumstances surrounding a seizure would be viewed by a reasonable person as indicating that he would not be free to leave for an indefinite, or for an extended period of time, then that person has been placed under arrest. See 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure Section(s) 3.8 at 297 (1984) ('[A] stopping differs from an arrest not in the incompleteness of the seizure but in the brevity of it.'); cf. U.S. v. Sharpe, 470 U.S. 675, 684-86, ('85) (noting that an investigative stop implies a 'temporary' detention, typically of short duration); Terry v. Ohio, supra, at 26, (noting that an arrest implies 'future interference with the individual's freedom of movement' beyond that attendant with an investigative stop); U.S. v. Mosquerra-Ramirez, 729 F.2d 1352, 56 (11th Cir.'84) (recognizing this temporal distinction between arrests and investigative stops).

It is not the actual length of time of the detention that is the key here, but, rather, whether a reasonable person would perceive, while detained, on the basis of the totality of the circumstances (including, very importantly, the actions and representations of the seizing officers, see U.S. v. Brunson, 549 F.2d 348, 58 (5th Cir.), cert. denied, 434 U.S. 842 ('77)), that he is 'under arrest' as commonly understood, in that he is likely to be detained for an indefinite or extended period of time.

An arrest can occur in an instant. An officer can put his hand on a person and state that that person is 'under arrest.' See U.S. v. Moreno, 897 F.2d 26, 31 (2d Cir.), cert. denied, 497 U.S. 1009, ('90); cf. California v. Hodari D., supra, 499 U.S. at 626, (At common law, '[a]n arrest require[d] either physical force ... or, where that was absent, submission to the assertion of authority.'). An arrest can also occur in an instant even if the officers do not use that magic phrase. Cf. U.S. v. Setzer, 654 F.2d 354, 57 (5th Cir. Unit B. '81), cert. denied, 459 U.S. 1041 ('82).

It may be argued that the standard of 'a reasonable person believing he is under arrest' will have its own difficulties, see Dix, supra, 1985 Duke L.J. at 929-31, but the common man or woman in this country, using common sense, understands this concept. Ordinarily, when a highway patrolman stops and detains a person for speeding, that person would not reasonably believe he or she is under arrest. See Pennsylvania v. Mimms, 434 U.S. 106 ('77) (police ordering an occupant out of a vehicle following a traffic stop does not result in an arrest).

Similarly, if an officer stops a person on the street and states, 'I just want to ask you some questions,' that person would not, at that moment, reasonably believe that he or she is under arrest. See Florida v. Rodriguez, 469 U.S. 1, 5-6 ('84) (such an encounter is not even a 'seizure' under the Fourth Amendment).

But if an armed officer, wearing a raid jacket, violently seizes a person, forces him to the ground, and places him in handcuffs (or other restraints), would not that person reasonably believe he was under arrest? Of course he would. Cf. U.S. v. Tookes, 633 F.2d 712, 715 (5th Cir. Unit B. '80). The difference is that in the first two examples the totality of the circumstances would lead the person detained to believe that his detention would be brief, whereas in the last example there is nothing in the situational context that would lead him to reasonable believe that he would soon or very shortly be permitted to leave and go on about his business.

When weighing the various factors that may distinguish an investigative stop from an arrest, e.g. the number of officers present, the officer's show of force, and the use of physical restraints, see U.S. v. Hammock, supra, at 393, such an inquiry must, in the end, be guided by ''common sense and ordinary experience.' ' U.S. v. Hastamorir, supra, at 1556 (quoting U.S. v. Espinosa-Guerra, 805 F.2d 1502, 09 (11th Cir.'86)) (further citation omitted). And in the 'common sense' view, when an individual is directed to leave his house (or that of a friend) by the police, is then immediately handcuffed by armed officers, and is forced to lie down on the ground in the presence of almost a dozen FBI agents wearing raid jackets, in a neighborhood that has been cordoned off by marked and unmarked police vehicles, such a person could not reasonably believe that he would, soon or shortly, be free to leave, and, therefore, he would reasonably believe that he has been subject to an arrest, rather than a mere investigatory stop. See U.S. v. Hawkins, 59 F.3d 723, 727 (8th Cir.'95) (suspect under arrest when removed from his bedroom and handcuffed in the hallway); U.S. v. Morgan, 743 F.2d 1158, 1164 (6th Cir.'84) (suspect under arrest when ordered to exit his house by several police officers who had surrounded his house), cert. denied, 471 U.S. 1061 ('85); U.S. v. Williams, 630 F.2d 1322, 1324 (9th Cir.) (same under similar facts), cert. denied, 449 U.S. 865 ('80); see also Oliveira v. Mayer, 23 F.3d 642, 645-46 (2d Cir.'94) (suspect under arrest when he was handcuffed by armed officers after being told to exit his vehicle), cert. denied, 115 S.Ct. 721 (1995); U.S. v. Anderson, 981 F.2d 1560, 65-66 (10th Cir.'92) (same under similar facts); U.S. v. Del Vizo, 918 F.2d 821, 824-25 (9th Cir.'90) (same); U.S. v. Gentry, 839 F.2d 1065, 1070 (5th Cir.'88) (same).

An arrest does not necessarily and automatically result only from the use of physical restraints (e.g., handcuffs), U.S. v. Hastamorir, supra, at 1557; U.S. v. Kapperman, 764 F.2d 786, 790 n. 4 (11th Cir.'85), or only from the officers' show of force (e.g. drawing their weapons), U.S. v. Roper, 702 F.2d 984, 988 (11th Cir.'83), it cannot be seriously doubted that these factors, when used in conjunction, would ordinarily lead a reasonable person to believe that he is under arrest, cf. 2 LaFave, supra, Section(s) 5.1(a) at 390-91; 3 id. 9.2(d) at 366-67, especially when such a seizure follows directly on the heels of an official directive, or even a 'request,' to leave the sanctuary of one's home.

Under one view, an arrest under the Fourth Amendment, would only occur when the police recite the magic words, 'You are now under arrest,' or perhaps after the passage of a considerable period of time. Such a result is plainly inconsistent with the precedent of the Supreme Court, Dunaway v. New York, 442 U.S. 200, 212-13 ('79) (whether a suspect was told that he was 'under arrest' is irrelevant to determining whether he was, in fact, under arrest).

When it is clear that the officers have resorted to such restrictive seizures of individuals (handcuffing them at gunpoint) in order to investigate their suspicions of prior criminal activity, the detention of the suspects is sufficiently serious to constitute an arrest requiring probable cause, even if the officers did not formally advise the suspects that they were 'under arrest' (or even if the officers did not intend to effect a 'formal' arrest). U.S. v. Diaz-Lizaraza, supra, at 1221-22; see also U.S. v. Vargas, supra, at 298.

Arrest In Civil Cases, Practice. An arrest is the apprehension of a person by virtue of a lawful authority, to answer the demand against him in a civil action.

To constitute an arrest, no actual force or manual touching of the body is requisite; it is sufficient if the party be within the power of the officer, and submit to the arrest. Barewords, however, will not make an arrest, without laying the person or otherwise confining him. It is necessarily an assault, but not necessarily a battery.

Arrests are made either on mesne or final process. An arrest on mesne process is made in order that the defendant shall answer, after judgment, to satisfy the claim of the plaintiff; on being arrested, the defendant is entitled to be liberated on giving sufficient bail, which the officer is bound to take. 2. When the arrest is on final process, as a ca. sa., the defendant cannot generally be dis charged on bail; and his discharge is considered as an escape.

In all governments there are persons who are privileged from arrest in civil cases. In the United States this privilege continues generally while the defendant remains invested with a particular character. Members of congress and of the state legislatures are exempted while attending the respective assemblies to which they belong parties and witnesses, while lawfully attending court; electors, while attending a public election; ambassadors and other foreign ministers; insolvent debtors, when they have been lawfully discharged; married women, when sued upon their contracts, are generally privileged; and executors and administrators, when sued in their representative characters, generally enjoy the same privilege. The privilege in favor of members of congress, or of the state legislatures, of electors, and of parties and witnesses in a cause, extend to the time of going to, remaining at, and returning from, the places to which they are thus legally called.

The code of civil practice of Louisiana enacts as follows, namely: Art. 210. The arrest is one of the means which the law gives the creditor to-secure the person of his debtor while the suit is pending, or to compel him to give security for his appearance after judgment. Art. 211. Minors of both sexes, whether emancipated or not, interdicted persons, and women, married or single, cannot be arrested. Art. 212. Any creditor, whose debtor is about to leave the state, even for a limited time, without leaving in it sufficient property to satisfy the judgment which he expects to obtain in the suit he intends to bring against him, may have the person of such debtor arrested and confined until he shall give sufficient security that be shall not depart from the state without the leave of the court. Art. 213. Such arrest may be ordered in all demands brought for a debt, whether liquidated or not, when the term of payment has expired, and even for damages for any injury sustained by the plaintiff in either his person or property. Art. 214. Previous to obtaining an order of arrest against his debtor, to compel him to give sufficient security that be shall not depart from the state, the creditor must swear in the petition which he presents to that effect to any competent judge, that the debt, or the damages which he claims, and the amount of which he specifies, is really due to him, and that he verily believes that, the defendant is about to remove from the state, without leaving in it and lastly, that he does not -take this oath with the intention of vexing the defendant, but only in order to secure his demand. Art. 215. The oath prescribed in the preceding article, ulay be taken either by the creditor himself, or in his absence, by his attorney in fact or his agent, provided either the one or the other can swear to the debt from his personal and direct knowledge of its being due, and not by what he may know or have learned from the creditor he represent. Art. 216. The oath which the creditor is required to take of the existence and nature of the debt of which he claims payment, in the cases provided in the two preceding articles, may be taken either before any judge or justice of the peace of the place where the court is held, before which he sues, or before the judge of any other place, provided the signature of such judge be proved or duly authenticated. Vide Auter action pendant; Lis pendens: Privilege; Rights. Arrest, In Criminal Cases. The apprehending or detaining of the person, in order to be forthcoming to answer an alleged or suspected crime. The word arrest is more properly used in civil cases, and apprehension in criminal. A man is arrested under a capias ad respondendum, apprehended under a warrant charging him with a larceny.

It will be convenient to consider, 1, who may be arrested; 2, for what crimes; 3, at what time; 4, in what places; 5, by whom and by what authority.

Who May Be Arrested. Generally all persons properly accused of a crime or misdeameanor, may be arrested; by the laws of the United States, ambassadors (q. v.) and other public ministers are exempt from arrest.

For what offences an arrest may be made. It may be made for treason, felony, breach of the peace, or other misdemeanor.

At What Time. An arrest may be made in the night as well as in the day time and for treasons, felonies, and breaches of the peace, on Sunday as well as on other days. It may be made before as well as after indictment found.

At What Places. No place affords protection to offenders against the criminal law; a man may therefore be arrested in his own house, (q.v.) which may be broken into for the purpose of making the arrest.

Who May Arrest And By What Authority. An offender may be arrested either without a warrant or with a warrant. First, an arrest may be made without a warrant by a private individual or by a peace officer. Private individuals are enjoined by law to arrest an offender when present at the time a felony is committed, or a dangerous wound given.

ELEMENTS - TRANSPORTATION ARTICLE, � 21-902
Driving
Transportation Article, � 11-114
Atkinson v. State, 331 Md. 199, 627 A.2d 1019 (1993).
"Accordingly, a person is in 'actual physical control' if the person is presently exercising or is imminently likely to exercise 'restraining or directing influence' over a motor vehicle while in an intoxicated condition." If the person is totally passive and has not controlled the vehicle, criminal sanctions do not apply. The court should examine: "whether or not the vehicle's engine is running, or the ignition on; where and in what position the person is found in the vehicle; whether the person is awake or asleep; where the vehicle's ignition key is located; whether the vehicle's headlights are on; whether the vehicle is located in the roadway or is legally parked." Thomas v. State, 277 Md. 314, 353 A.2d 256 (1976) Gore v. State, 74 Md. App. 143, 536 A.2d 735 (1988)(officer felt engine to be warm - sufficient to show car had recently been driven) Rettig v. State, 334 Md. 419, 639 A.2d 670 (1994) Motor Vehicle Admin. v. Atterbeary, 368 Md. 480, 796 A.2d 75 (2002) held that a driver who was apparently awakened by a rescue squad, and who was then found by the police to be awake, behind the wheel, with the engine running, was capable of driving the car and therefore in actual physical control as used in the statutory definition of "to drive". While under the influence of alcohol per se Transportation Article, � 21-902(a)(2) Transportation Article � 11-127.1 ("'Under the influence per se' means having an alcohol concentration at the time of testing of 0.08 or more as measured by grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath"). Prior to October 1, 2001 this level was .10 and was called intoxicated per se.
Commonwealth v. Barud, 681 A.2d 162
(Pa. 1996)(per se statute similar to Maryland's based on level of intoxication at the time of the test held to violate due process) While under the influence of or impaired by alcohol (� 21-902(a)(1); (b)) Definition of driving while under the influence. (As of September 30, 2001). Legislation enacted in 2001 replaced the term "intoxicated" with the term "under the influence." Since the legislature gave no definition, the definition for what was formerly called intoxicated remains applicable to under the influence. A person is intoxicated when a person's mental and physical faculties are impaired to a substantial degree from the use of alcoholic beverages: that is, a person's judgment and nervous system are affected from the use of alcohol to the extent that there is a substantial or significant impairment of coordination. [in relation to driving or operating a motor vehicle, a substantial or significant impairment of coordination exists when, as a result of the use of alcoholic beverages, a person lacks substantial capability to operate a vehicle in a manner that an ordinarily prudent and cautious person in full possession of his faculties, using reasonable care, would operate a vehicle under like conditions.
Aronson, Maryland Criminal Jury Instructions and Commentary, Second Edition (Michie 1988).
Definition of driving "while impaired by alcohol." "Intoxication" and "impairment by alcohol" are two terms difficult to define with precision, yet not difficult to understand. Courts have been able to fashion interpretations of these terms. Instructive in this respect is the approach employed by an Oklahoma court in Synnott v. State where the appellant made an identical due process challenge. 515 p.2d 1154 (Okla.Cr.App.1973). The court, in upholding an analogous provision, held that the phrase "under the influence of intoxicating liquor" must be given its "commonly understood meaning which does not leave a person of ordinary intelligence in doubt." Because the state is one of general knowledge, it must be given a sensible interpretation. Id. at 1157. Therefore, ascribing to the word "impaired" its common meaning, we believe it is generally viewed as a state less than intoxication where consumption of alcohol has affected one's normal coordination.
Brooks v. State, 41 Md.App. 123, 128, 395 A.2d 1224, 1227 (1979).
Tereshuk v. State, 66 Md. App. 193, 503 A.2d 254 (1986)
Of alcohol
Odor of alcohol beverage on the defendant's breath Open alcoholic beverages Blood or breath test Eyewitnesses Defendant's statement Horizontal gaze nystagmus Impaired by drugs and alcohol (� 21-902(c)) Same as above Evidence of recent consumption of drugs Prescription Expert opinion Beckwith v. State, 78 Md.App. 358, 553 A.2d 259 (1989), reversed, 320 Md. 410, 578 A.2d 220 (1990)(�� 21-902 (c) and (d) are not lesser included offenses of � 21-902(a) Section 21-902(c) also requires that the defendant be unable to drive safely as a result of the consumption of alcohol and drugs or drugs Cook v. State, 62 Md.App. 634, 490 A.2d 1311 (1985)(driving under the influence of CDS may be prosecuted under either � 21-902(c) or (d) Impaired by controlled dangerous substances (� 21-902(d)) Same as above Evidence of recent consumption of drugs Drug Recognition Expert (D.R.E.)
Beckwith v. State, 78 Md.App. 358, 553 A.2d 259 (1989), reversed, 320 Md. 410, 578 A.2d 220 (1990)
Cook v. State, 62 Md.App. 634, 490 A.2d 1311 (1985) DUI resulting in "life threatening injury" Todd v. State, 61 Md.App. 332, 868 A.2d 944 (2005) the Court of Special Appeals defined "life threatening injury" for purposes of what is now codified as Criminal Law Article � 3-211, drunk driving resulting in "life threatening injury." The court rejected a vagueness challenge to the statute and instead defined "life threatening injury" as one that was "potentially fatal" or "very dangerous or serious with the possibility of death as an outcome." PRELIMINARY (PRE-TRIAL) MOTIONS Discovery Purposes of discovery Prepare for defense To determine whether statutory and regulatory requirements have been met To determine whether there is an indicia of unreliability For review by an expert witness To obtain sanctions Dismissal of the case Exclusion of evidence Order compelling discovery State continuance Object of discovery What do they have to do? Did they do it? Is is scientifically accurate and reliable and legally valid? Maryland Rule 4-262 - District Court Maryland Rule 4-301(b)(same rules apply in circuit court where the defendant prays a jury trial) Maryland Rule 4-263 - Circuit Court Cole v. State, 378 Md. 42, 835 A.2d 600 (2003)(defendant was entitled to discovery of testing laboratory's standard operating procedures, including quality assurance manual, calibration record for gas chromatograph/mass spectrometer (GCMS) used by chemist to test the substance) Warrick v. State, 302 Md. 162, 486 A.2d 189 (1985)(State required to produce all evidence relevant to suppression without a request) Coleman v. State, 321 Md. 586 583 A.2d 1044 (1991) Jennings v. State, 303 Md. 72, 492 A.2d 295 (1985) Blake v. State, 15 Md. App. 674, 292 A.2d 780, cert. denied, 266 Md. 734 (1972) Brown v. State, 85 Md. App. 523, 584 A.2d 164 (1991) Bailey v. State, 303 Md. 650, 496 A.2d 665 (1985) Patrick v. State, 329 Md. 24, 617 A.2d 215 (1992)(State required to produce polygraph results of potential witnesses even though results unfavorable to defendant and results themselves are inadmissible) Maryland Rule 4-261 - depositions Maryland Rules 4-265, 4-266, 4-267 - subpoena for witness White v. State, 89 Md. App. 590, 598 A.2d 1208 (1991)(State's toxicologist may not be subpoenaed by defendant as free defense expert) Md. Cts. & Jud. Proc., � 10-304(d)(toxicologist may be subpoenaed 30 days before trial, and state attorney may represent toxicologist on a motion to quash the subpoena) Maryland Rule 4-264 - subpoena for tangible evidence Brady discovery Brady v. Maryland, 363 U.S. 83 (1963) Giles v. Maryland, 386 U.S. 66 (1967) Giglio v. United States, 405 U.S. 150 (1971) Davis v. Alaska, 415 U.S 308 (1974) United States v. Bagley, 473 U.S. 667 (1985) (impeachment evidence is exculpatory evidence and must be provided to the defendant) Kyles v. Whitley, 514 U.S. 419 (1995); Ware v. State, 348 Md. 19, 702 A.2d 699 (1997) (government responsible to produce evidence in possession of the police) Casper discovery Casper v. State, 70 Md. App. 576, 521 A.2d 1281 (1987) Moon v. State, 300 Md. 354, 478 A.2d 695, cert. denied, 469 U.S. 1207 (1985) Jencks discovery Jencks v. U.S., 353 U.S. 657 (1957) Carr v. State, 284 Md. 455, 397 A.2d 606 (1979) Leonard v. State, 46 Md. App. 63, 421 A.2d 85 (1980), aff'd, 290 Md. 295, 429 A.2d 538 (1981) Martinez v. State, 309 Md. 124, 522 A.2d 950 (1987) Kanaras v. State, 54 Md. App. 568, 460 A.2d 61 (1983) Bruce v. State, 318 Md. 706, 569 A.2d 1254 (1990) Speedy trial - Sixth Amendment, United States Constitution; Article 21, Maryland Declaration of Rights Barker v. Wingo, 407 U.S. 514 (1972) Divver v. State, 356 Md. 379, 739 A.2d 71 (1999)(delay of one year and sixteen days from date of arrest to first trial date in routine DWI case violated state constitutional right to a speedy trial) Continuance Md. Rule 4-271(b) Double jeopardy Prior acquittal/conviction Cameron v.State, 102 Md.App. 600, 650 A.2d 1376 (1994) Gianiny v. State, 320 Md. 337, 577 A.2d 795 (1990) Scrimsher v. State, 325 Md. 88, 599 A.2d 444 (1991) Huff v. State, 325 Md. 55, 599 A.2d 428 (1991) Farrell v. State, 364 Md. 499, 774 A.2d 387 (2001)(court found defendant not guilty of speeding and negligent driving after witnesses failed to appear, common law of double jeopardy precluded re-prosecution, citing, Daff v. State, 317 Md. 678, 566 A.2d 120 (1989)). In re Michael W., 367 Md. 181, 786 A.2d 684 (2001)(payment of driving in violation of alcohol restriction citation did not preclude prosecution for driving while intoxicated in juvenile court). Res judicata Cook v. State, 281 Md. 665, 381 A.2d 671 (1978) Beatty v. State, 56 Md. App. 627, 468 A.2d 663 (1983) State v. Ferrell, 67 Md. App. 631, 508 A.2d 1023 (1986), aff'd, 313 Md. 291, 545 A.2d 653 (1988) Collateral estoppel Ashe v. Swenson, 397 U.S. 436 (1970)(application of collateral estoppel in criminal cases is required by the Double Jeopardy Clause) Janes v. State, 350 Md. 283, 711 A.2d 1319 (1998)(administrative finding in MVA hearing does not have collateral estoppel effect on court prosecution) Butler v. State, 91 Md. App. 515, 605 A.2d 186 (1992) Transp. Art., � 16-205.1(l) Charging document Failure to state an offense Ayre v. State, 291 Md. 255, 433 A.2d 1150 (1981)(all elements of offense must be included in charging document) Pedzich v. State, 33 Md. App. 620, 365 A.2d 567 (1976)(charging documents filed in the District Court must conform with constitutional requirements) Duplicity and Disjunctivity State v. Beers, 21 Md. App. 39, 318 A.2d 525 (1974) When a statute creates an offense and specifies several different acts, transactions, or means by which it may be committed, an indictment [or other charging document] for violation thereof may properly allege the offense in one count by charging the accused in conjunctive terms with doing any or all of the acts, transactions, or means specified in the statute. Ayre v. State, 21 Md. App. 61, 318 A.2d 528 (1974) Thompson v. State, 26 Md. App. 442, 338 A.2d 411 (1975) Crampton v. State, 71 Md. App. 375, 525 A.2d 1087 (1987), aff'd, 314 Md. 265, 550 A.2d 693 (1988) Beckwith v. State, 320 Md. 410, 578 A.2d 220 (1990), rev'g in part, 78 Md. App. 358, 553 A.2d 259 (1989)(charge of 21-902(a) does not allege 21-902(b)) Morrissey v. State, 9 Md. App. 470, 265 A.2d 585 (1970)(when duplicitous charge includes separate offenses State must prove both) Venue Courts and Judicial Proceedings Article, � 4-201 Acton v. State, 80 Md. 547, 31 A. 513 (1895)(venue must be alleged in charging document) McBurney v. State, 280 Md. 21, 371 A.2d 129 (1977)(allegation of venue may not be amended over the objection of the defendant) Charging using a � 21-902 "general" citation under � 26-405 By charging � 21-902 "general" citation under � 26-405 the defendant may be found guilty of any lesser included offense Driving while intoxicated per se under � 21-902(a)(2) is not a lesser included offense of driving while intoxicated under � 21-902(a)(1). Meanor v. State, 364 Md. 511, 774 A.2d 394 (2001). Statute of limitations Md. Cts. & Jud. Proc., � 5-106 Massey v. State, 320 Md. 605, 579 A.2d 265 (1990) Service of process Maryland Rule 4-212(h) State v. Preissman, 22 Md. App. 454, 323 A.2d 637 (1974)(a District Court commissioner is a judicial officer and may not serve process in a criminal case) Darrikhuma v. State, 81 Md. App. 560, 568 A.2d 1150 (1990)(where traffic citation was issued by the proper person, the police officer, but served by the commissioner, denial of a motion to dismiss could be considered harmless error) Right to a jury trial District Court The defendant may pray a jury trial from the District Court for any offense that permits imprisonment in excess of 90 days. Md. Cts. & Jud. Proc., � 4-302(e)(2). Fisher v. State, 305 Md. 357, 506 A.2d 626 (1986)(driving while intoxicated, which carries a year imprisonment carries the right to a jury trial; driving while under the influence of alcohol with a 60 day maximum penalty does not) Circuit Court Kleberg v. State, 318 Md. 411, 568 A.2d 1123 (1990)(by statute, in the circuit court, the defendant may elect a jury trial for any incarcerable offense) STATE'S DIRECT EXAMINATION Arresting officer Evidentiary objections Relevance Hearsay Narrative Leading Calls for a conclusion Compound question Not responsive Reading the testimony - not proper refreshment of recollection Argumentative Assumes facts not in evidence Question is vague or ambiguous Answer is vague or ambiguous No personal knowledge Asked and answered Authentication Not the best evidence Compound question Calls for speculation Discovery (District court) Rule 4-262(a)(2) The State must furnish exculpatory evidence Statements of defendant to a State agent Expert opinions Court-ordered Suppress stop/search/arrest Fourth Amendment Stop Goode v. State, 41 Md.App. 623, 398 A.2d 801 (1979)(articulable reasonable suspicion that crime has been, is, or is about to be committed). Speeding - Fitzwater v. State, 57 Md.App. 274, 469 A.2d 909 (1984) Brief weave over a line - Rowe v. State, 363 Md. 424, 769 A.2d 879 (2001)(brief momentary drift and hits rumble strip); but see, Edwards v. State, 143 Md.App. 155, 792 A.2d 1197 (2002)(vehicle crosses center line a number of times); Dowdy v. State, 144 Md.App. 325, 798 A.2d 1 (2002)(vehicle partially in left lane 2 times for 1/10 mile) Stop permitted even though officer did not see defendant drive, Bryant v. State, 142 Md.App. 604, 791 A.2d 161 (2002). Continued detention - Ferris v. State, 355 Md. 356, 735 A.2d 491 (1999) Field tests Arrest - Berkemer v. McCarty, 468 U.S. 420 (1984)(Miranda is required once a reasonable person would believe they are no longer free to leave) Intoximeter Roadblocks - Little v. State, 300 Md. 485, 479 A.2d 903 (1984); Michigan State Dept. of Police v. Sitz, 110 S.Ct. 2481 (1990)(three part balancing - the State's interest, the effectiveness of the roadblock in accomplishing the State's interest, and the level of intrusion in the particular roadblock) Entry into the home - Welsh v. Wisconsin, 466 U.S. 740 (1984)(police may not enter the home to arrest for a misdemeanor without a warrant); Smith v. State, 72 Md. App. 450, 531 A.2d 302 (1987)(answering a police knock at the door does not waive the right of privacy recognized in Welsh) Officer's jurisdiction Boston v. Baltimore County Police Department, 357 Md. 393, 744 A.2d 1062 (2000)(police may not enforce traffic laws outside of their own jurisdiction as a result of Article 27, � 594B(1)) (now Crim. Pro. Art. � 2-102) Seip v. State, 153 Md.App. 83, 835 A.2d 187 (2003)(exception to Boston is where officer is in hot pursuit out of his own jurisdiction)(hot pursuit not abrogated by Md.Code Ann., Crim. Pro. Art., �� 2-102(b)(2), (e)(1), 2-301) Stevenson v. State, 287 Md. 504, 413 A.2d 1340 (1980)(where officer acts out of his jurisdiction under color of law, the Fourth Amendment may apply) Local police MNCPPC (Maryland National Capitol Park and Planning Police) Md. Code Ann., Crim. Pro. Art., � 2-105 Memorandum of Understanding United States Park Police Federal property - United States v. Dreos, 156 F. Supp. 200 (1957) University of Maryland Police Md. Code Ann., Educ. Art., �13-601 Memorandum of Understanding Standardized field sobriety tests Crampton v. State (field sobriety tests are not "scientific" tests requiring consensus of reliability in the relevant scientific community) NHTSA Guidelines Frye v. United States, 293 F. 1013 (1923)(once a new scientific technique has gained general acceptance within the relevant scientific field test results may be admitted in evidence) Reed v. State, 283 Md. 374, 391 A.2d 364 (1978)(adopting Frye general acceptance test in Maryland) Horizontal gaze nystagmus Schultz v. State, 106 Md.App. 145, 664 A.2d 60 (1995)(State must show officer properly trained, test administered properly, and only allowed to show the defendant had consumed alcohol) Wilson v. State, 124 Md.App. 543, 723 A.2d 494 (1999) (HGN testing may not be used to establish a specific blood alcohol level) United States v. Horn, 185 F.Supp.2d 530 (D.Md 2002). Federal Magistrate Paul Grimm analyzed the admissibility of the standardized field sobriety tests in federal court under the Federal Rules of Evidence and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Judge Grimm concluded, among other things that the standardized field sobriety tests may be used as circumstantial evidence of impairment, and for probable cause. However, the Government may not use them as "tests" that may be passed" or "failed" and the officer may not offer an opinion that includes reliance on "clues." If offered as circumstantial evidence of alcohol intoxication or impairment, the probative value of the SFSTs derives from their basic nature as observations of human behavior, which is not scientific, technical or specialized knowledge. To interject into this essentially descriptive process technical terminology regarding the number of "standardized clues" that should be looked for or opinions of the officer that the subject "failed" the "test," especially when such testimony cannot be shown to have resulted from reliable methodology, unfairly cloaks it with unearned credibility. Any probative value these terms may have is substantially outweighed by the danger of unfair prejudice resulting from words that imply reliability. I therefore hold that when testifying about the SFSTs a police officer must be limited to describing the procedure administered and the observations of how the defendant performed it, without resort to terms such as "test," "standardized clues," "pass" or "fail," unless the government first has established a foundation that satisfies Rule 702 and the Daubert/Kumho Tire factors regarding the reliability and validity of the scientific or technical underpinnings of the NHTSA assertions that there are a stated number of clues that support an opinion that the suspect has "failed" the test. This is not to say that a police officer may not express an opinion as a lay witness that the defendant was intoxicated or impaired, if otherwise admissible under Rule 701. As recently amended, Rule 701 permits lay opinion testimony if: (a) rationally based upon the perception of the witness, (b) helpful to the fact finder and (c) if the opinion does not involve scientific, technical or specialized information. * * * In DWI/DUI cases, however, the third requirement of Rule 701, that the lay opinion is "not based on scientific, technical, or other specialized knowledge," will take on great importance. A police officer certainly may testify about his or her observations of a defendant's appearance, coordination, mood, ability to follow instructions, balance, the presence of the smell of an alcoholic beverage, as well as the presence of exaggerated HGN, and the observations of the defendant's performance of the SFSTs__consistent with the limitations discussed above. The officer should not, however, be permitted to interject technical or specialized comments to embellish the opinion based on any special training or experience he or she has in investigating DWI/DUI cases. Just where the line should be drawn must be left to the discretion of the trial judge, but the officer's testimony under Rule 701 must not be allowed to creep from that of a layperson to that of an expert__and the line of demarcation is crossed if the opinion ceases to be based on observation and becomes one founded on scientific, specialized or technological knowledge. Significantly, Judge Grimm in his opinion also summarized the testimony of the expert witnesses who testified and/or supplied affidavits supporting his conclusions. Dr. Spurgeon Cole's testimony was summarized as follows: In his testimony and published writings, Dr. Cole was highly critical of the reliability of the SFSTs if used to prove the precise level of a suspect's alcohol intoxication or impairment. His 1994 article "Field Sobriety Tests: Are They Designed for Failure?," published in the journal Perceptual and Motor Skills, analyzed the 1977 Report, the 1981 Final Report, and the 1983 Field Evaluation report published by NHTSA regarding the SFSTs. (Def's.Memo, Ex. C.). Dr. Cole observed the following: (1) 47% of the subjects tested in the 1977 NHTSA laboratory study who would have been arrested by the testing officers for driving while intoxicated (BAC of 0.10 or greater) actually had BACs below 0.10; (2) in the 1981 Final Report, 32% of the participants in the lab study were incorrectly judged by the testing officers as having BACs of 0.10 or greater; and (3) the accepted reliability coefficient for standardized clinical tests is . 85 or higher, yet the reliability coefficients for the SFSTs, as reported in the NHTSA studies, ranged from .61 to .72 for the individual tests and .77 for individuals that were tested on two different occasions while dosed to the exact same BAC. More alarmingly, inter-rater reliability rates (where different officers score each subject) ranged from .34 to .60, with an over-all rate of . 57. Id. at 100. Dr. Cole theorized that the SFSTs, particularly the WAT and OLS tests, required subjects to perform unfamiliar, unpracticed motions and noted that a very few miscues result in a conclusion that the subject failed and had a BAC in excess of 0.10. Id. His hypothesis was that individuals could be classified as intoxicated/impaired as a result of unfamiliarity with the test, rather than actual BAC. Id. He tested this hypothesis by videotaping twenty_ one completely sober individuals performing either "normal-abilities tests" (such as reciting their addresses or phone numbers or walking in a normal manner) or the WAT and OLS tests. Id. at 99_102. The results of the study were that 46% of the officers that viewed the videotape of the sober individuals performing the SFSTs rated the subjects as having had too much to drink, as compared to only 15% reaching this decision after seeing the videotape of the subjects performing the normal-abilities tests. Id. at 102. Dr. Cole concluded: [The SFSTs] must be held to the same standards the scientific community would expect of any reliable and valid test of behavior. This study brings the validity of field sobriety tests into question. If law enforcement officials and the courts wish to continue to use field sobriety tests as evidence of driving impairment, then further study needs to be conducted addressing the direct relationship of performance on these and other tests with driving. To date, research has concentrated on the relationship between test performance and BAC and officers' perception of impairment. This study indicates that these perceptions may be faulty. Id. at 103. During his testimony at the Rule 104(a) hearing, Dr. Cole repeated his criticism of the reliability of the 1977, 1981 and 1983 studies but also testified about the Colorado, Florida and San Diego studies performed by Dr. Burns, styled as "field validation studies ." This testimony echoed Dr. Cole's written criticisms about the SFSTs' reliability as precise predictors of the level of alcohol intoxication and the SFST's validity as a measure of driver impairment in his 1994 article, co-authored with Ronald H. Nowaczyk, titled "Separating Myth from Fact: A Review of Research on the Field Sobriety Tests" and published in the Champion journal of the South Carolina Bar Association. Def's. Reply Memo, Exh. 1. Dr. Cole's primary criticisms, as discussed in his 1994 article, include, first, that the 1981 Final Report published by NHTSA claims an 80% accuracy rate for users of the SFSTs. This is misleading because when the actual data is examined with respect to the success rate of using the SFSTs to differentiate between drivers with BACs above 0.10 and those without, the critical population, the officers had "a 50/50 chance of being correct just on the basis of guessing." Id. at 539. Second, the SFSTs have a combined test-retest reliability rates of .77, while the scientific community "expects reliability coefficients to be in the upper . 80s or .90 for a test to be scientifically reliable." Id. at 540. When different officers tested the same subjects at the same BAC dose level on different days the reliability was only .59 - a 41% error rate. Dr. Cole contrasted these substandard reliability coefficients with that of the BAC machine, which is .96 or 96% reliable. Id. at 540-41.
Third, Dr. Cole argued that in order for the SFSTs to be valid predictors of BAC they must "not only identify individuals above a BAC level of 0.10 as 'failing', but also identify individuals below .10 as 'passing'." Id. at 541. The data from the NHTSA 1977 Report, however, shows that the validity of the HGN, OLS and WAT SFSTs was ".67, .48, and .55, respectively, with a combined validity coefficient of .67." Id. This means that use of the SFSTs results in an unacceptably high erroneous arrest rate, if the tests are used by the officer to make arrest decisions based on BAC levels being in excess of . 10.
Fourth, Dr. Cole was particularly critical of claims that the NHTSA SFSTs have been "validated" in a "field setting." In this regard, he stated that the 1977 and 1981 NHTSA studies were done in a laboratory setting, and the difference in conditions in a controlled lab are dramatically dissimilar from field conditions that can be expected when officers employ SFSTs at all times of day and night in widely disparate weather and traffic conditions and where issues of officer safety may influence how the test is performed. [FN20] Id. at 542. Dr. Cole stated that the NHTSA 1983 Field Evaluation purported to be a field validation study, but it failed to meet the recommendations of the authors of the NHTSA 1981 Final Report that the SFSTs be validated in the field for eighteen months in locations across the country. Id. Dr. Cole also stated that Dr. Burns herself has testified that the SFSTs adequately have not been field tested [FN21] Id.
Finally, Dr. Cole disputed the claims of proponents of the SFSTs that the studies regarding them have been published in peer review journals. The 1977 and 1981 field studies were published in technical reports by NHTSA, but those reports excluded the "methods and results" sections because they were thought to be too lengthy. Id. at 543. Cole concluded "[i]t is difficult to see how the NHTSA could claim that the FST is accepted in the scientific community, when results of studies on the validation of the FST have never appeared in a scientific peer reviewed journal, which is a basic requirement for acceptance by the scientific community." Id . Cole concluded:
Because of its widespread use, the FST battery has been assumed to be a reliable and valid predictor of driving impairment. NHTSA has done little to dispel that assumption. Law enforcement cannot be blamed for its use of the FST battery. Training documents refer to NHTSA reports and provide what appears to be supporting evidence for the validity of the FST battery. In addition, there is little doubt that individuals who have high BAC levels will have difficulty in performing the FST battery. However, what the law enforcement community and the courts fail to realize is that the FST battery may mislead the officer on the road to incorrectly judge individuals who are not impaired. The FST battery to be valid must discriminate accurately between the impaired and non-impaired driver. NHTSA's own research on that issue ... has not been subjected to peer review by the scientific community. In addition, a careful reading of the reports themselves provides support for the inadequacy of the FST battery. The reports include low reliability estimates for the tests, false arrest rates between 32 and 46.5 percent, and a field test of the FST that was flawed because the officers in many cases had breathalyzer results at the time of the arrest. NHTSA clearly ignored the printed recommendations of its own researchers in conducting that field study.
Id. at 546. (Emphasis in original).
State v. Homan, 732 N.E.2d 952 (Oh. 2000)(standardized field sobriety tests inadmissible for probable cause unless conducted in strict compliance with NHTSA guidelines)(the Ohio legislature has since modified this rule)
Ragland v. State, 385 Md. 706, 870 A.2d 609 (2005)("Expert opinion testimony" is testimony that is based on specialized knowledge, skill, experience, training, or education)
Suppress statement
Miranda v. Arizona, 384 U.S. 436 (1966
Berkemer v. McCarty, 468 U.S. 420 (1984)(arrest occurs when reasonable person would not believe he is free to leave)
Pennsylvania v. Muniz, 496 U.S. 582 (1990)(asking suspect date of six birthday was testimonial and required Miranda warnings, rest of videotaped interview held admissible without Miranda) Pennsylvania v. Bruder, 488 U.S. 9 (1988)(whether recitation of alphabet is testimonial so as to require Miranda warnings not decided) Voluntariness Mincey v. Arizona, 437 U.S. 385 (1978) Corroboration of corpus delicti Hadder v. State, 238 Md. 341, 209 A.2d 70 (1965) Refusal Krauss v. State, 322 Md. 376, 587 A.2d 1102 (1991)(so long as the defendant is not claiming the police improperly caused a refusal to submit to a blood or breath test for alcohol the State may not introduce the refusal in evidence) In 2001, the legislature amended Cts. & Jud. Proc. Art., � 10-309 to allow evidence of the refusal in evidence. A Fifth Amendment challenge to the admissibility of the refusal in light of this legislation was rejected by the Court of Special Appeals in Wyatt v. State, 149 Md.App. 554, 817 A.2d 901 (2003). Wyatt relied heavily on the Supreme Court decision in South Dakota v. Neville, 459 U.S. 553 (1983). However, the DR-15 advice of rights form often used advises defendants that the decision to take or refuse the test is not an admission of guilt. In January, 2003, the MVA modified the form to eliminate the offensive phrase, but as of May 2005, a few police agencies still use the earlier, defective form. Refusals obtained with the earlier, arguably form, should be excluded from evidence. As of September 30, 2005, if the state provides notice 15 days prior to trial in Circuit Court and 5 days prior to trial in District Court, knowing refusal, found beyond a reasonable doubt by the fact finder, subjects the defendant to a sentencing enhancement of 2 months and $500. Independent test State v. Weisbrod, 159 Md.App. 488, 859 A.2d 664 (2004), cert. den., 384 Md. 582, 865 A.2d 589 (2005)(police do not have to advise defendant who refuses the State's breath test of the right to an independent medical test under Cts. & Jud. Proc. Art., � 10-304(f))(but an early draft of the opinion suggests police might have to advise defendants who do submit to the test of the right) Opinion of officer Warren v. State, WL 2175935 (Md. App., Sep 08, 2005)(officers may give lay opinion that defendant was "driving under the influence of alcohol," "drunk," and "highly impaired by alcohol"); but see, Ragland v. State, 385 Md. 706, 870 A.2d 609 (2005)(officers relying on specialized training, knowledge, or experience must be qualified as experts to give opinions) Intoximeter or blood test technician Transportation Article, �� 16-205.1, 16-205.2 State v. Loscomb, 291 Md. 424, 435 A.2d 764 (1981)(Courts & Judicial Proceedings Art., �� 10-302-309 and Transp. Art., � 16-205.1 are in pari materia and should be construed harmoniously)
Courts and Judicial Proceedings Article, �� 10-302-10-309 Willis v. State, 302 Md. 363, 488 A.2d 171 (1985)("apprehension" occurs when a defendant, not in custody, is offered the blood test) Brice v. State, 71 Md. App. 563, 526 A.2d 647 (1987) Hasselhoff v. State, 67 Md. App. 645, 508 A.2d 1030 (1986) Hyle v. Motor Veh. Admin., 348 Md. 143, 702 A.2d 760 (1997)(a blood test may be required if the test equipment for a breath test is unavailable, however, if the operator is unavailable, the State is not excused from obtaining a breath test, and the driver will not have his license suspended for refusing a blood test) Regulations of the Toxicologist, Post Mortem Examiners Commission, State of Maryland, Regarding Tests of Breath and Blood for Alcohol, adopted September 30, 2001 and amendments Right to counsel Sites v. State, 300 Md. 702, 481 A.2d 192 (1984)(a detainee has a due process right to telephonically consult with counsel on request to decide whether to submit to the breath test so long as the consultation does not interfere with the State's effort to timely and efficaciously obtain the breath test result) Brosan v. Cochran, 307 Md. 662, 516 A.2d 970 (1986)(the due process right recognized in Sites includes the right to an in-person consultation in the jail and the attorney may administer a private portable breath test) McAvoy v. State, 314 Md. 509, 551 A.2d 875 (1989)(the right recognized by Sites depends upon a request and the police need not give advice of Sites to detainees. MVA v. Atterbeary, 368 Md. 480, 796 A.2d 75 (2002) determination of whether counsel was denied is decided on a case by case basis consent to take test need not be in writing requesting to talk to attorney, although did not have name of attorney was not a refusal opportunity to consult counsel must be reasonable, considering all the facts and circumstances Hospital blood test Moon v. State, 300 Md. 354, 478 A.2d 695 (1984)(since the statutory inferences do not apply, a hospital test must be interpreted by an expert to be relevant to the trier of fact) Garlick v. State, 313 Md. 209, 545 A.2d 27 (1988)(the State may introduce a hospital test if it is "pathologically germaine" to treatment) Bryant v. State, 361 Md. 420, 761 A.2d 925 (2000)(hospital record that does not comply with Maryland Rule 5-902 should not have been admitted in evidence) Voir dire the witness CROSS-EXAMINATION Purpose of cross-examination To create a reasonable doubt Why cross-examination works in dui cases Relevant Maryland Rules Maryland Rule 5-616 Maryland Rule 5-613 Maryland Rule 5-612 Preparing for cross-examination of arresting officer interview client thoroughly take pictures of the roadway and scene of testing NHTSA manual subpoena NHTSA manual Jencks discovery Jencks v. United States, 353 U.S. 657 (1957) Carr v. State, 284 Md. 455, 397 A.2d 606 (1979) Leonard v. State, 46 Md. App. 63, 421 A.2d 85 (1980), aff'd, 290 Md. 295, 429 A.2d 538 (1981) Martinez v. State, 309 Md. 124, 522 A.2d 950 (1987)(grand jury testimony) Kanaras v. State, 54 Md. App. 568, 460 A.2d 61 (1983) Bruce v. State, 318 Md. 706, 569 A.2d 1254 (1990) (on cross-examination the defendant is entitled to examine "(1) a written statement made by said witness and signed or otherwise adopted or approved by him; (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement.") Bruce, 318 Md. at 724, 569 A.2d at 1263. Butler v. State, 107 Md.App. 345, 667 A.2d 999 (1995) (discussing notes used to refresh recollection and reports) Taking notes on direct The gurus of cross-examination: Roger Dodd and Larry Pozner - some basics single fact leading safe havens avoid bait reversals chapter method loops trilogies Other "rules" of cross-examination for DUI Never ask a question you don't know the answer to - modified Everything the officer left out/everything the client did right Filling in the blanks in the officer's report/testimony Everything the officer failed to do or did improperly Dissecting the field tests Leaving open innocent explanations for State evidence Reverse psychology Probable cause - Miranda objection Opinion related questions Dealing with the opinion Nothing to lose questions Filing charges Preparing for cross-examination of intoximeter technician Reviewing all of the statutory and regulatory requirements for admission of the intoximeter test that relate to the test technician Statutory Technician properly trained. Ct. & Jud. Proc. Art., � 10-304 (3). "Qualified person" means a person who has received training in the use of the equipment in a training program approved by the toxicologist under the Postmortem Examiners Commission and who is either a police officer, a police employee, an employee of the office of the Chief Medical Examiner, or a person authorized by the toxicologist under the Postmortem Examiners Commission. Cts. & Jud. Proc. Art., � 10-304 (b). The test of breath shall be administered by a qualified person with equipment approved by the toxicologist under the Postmortem Examiners Commission at the direction of a police officer. . . Not arresting officer. Ct. & Jud. Proc. Art., � 10-304 (b) . . . The officer arresting the individual may not administer the test of breath. Test within two hours of apprehension. Ct. & Jud. Proc. Art., � 10-303 Technician must be present if demand for test technician filed by defendant. Ct. & Jud. Proc. Art., 10-306. Regulatory - Regulations of the Toxicologist, Post Mortem Examiners Commission, State of Maryland, Regarding Tests of Breath and Blood for Alcohol, effective September 30, 2001. Training. Initial certification. � G.1. Each operator must have at least a score of 90% on a written exam after a course comprised of a minimum of 35 hours of lecture and laboratory instruction. This instruction includes training in "mathematics of the metric system," study "of the properties, human physiology and pharmacology of alcohol," study of "the theory, operating principles, and maintenance requirements of the Breath Test Instruments," review of relevant statutes, regulations and cases, and testing on human subjects. Recertification. � G.2. A 6 hour review course is given and passing is lowered to 80%. Obtaining necessary documents pre-trial Records required to be kept by regulation � I.1. Alcohol Testing Program Log - Each agency is required to keep a permanent log at each location where a Breath Test Instrument is housed. � I.2. Breath Test Operator's Log - Each operator is required to maintain a permanent Breath Test Operator's Log � I.3. Alcohol Influence Summary Report -Each agency's Breath Test Supervisor shall complete an Alcohol Influence Summary Report on a monthly basis. � I.4. Breath Test Instrument Field Inspection Report Form - A Breath Test Instrument Field Inspection Report Form recording the results of Maintenance Tests shall be completed. Other documents Printout of test result Certification of test result Approvals of equipment by Toxicologist Sample chapters of cross-examination of the breath test technician 20 minute observation period. Cts. & Jud. Proc. Art. � 10-304(b) precludes the arresting officer from "administering" the test. At the same time, the method to "conduct" the test, specified in the Toxicologist's Regulation includes the 20 minute observation period. See also, State v. Carson, 988 P.2d 225 (Id.App. 1999)(watching def through rearview mirror is not observation). Since breath testing devices rely on an accurate reading of alveolar or deep lung air, the introduction of stomach gases into the oral cavity, such as by a burp, or stomach contents, as through a regurgitation can produce a false high reading. Time first encountered the defendant Whether they checked the defendant's mouth 2100:1 ratio Breath temperature Breathing pattern Margin of error Odor of alcohol Training of operator Maintenance requirements Proper record keeping Principles of relevant case law Casper v. State, 70 Md.App. 576, 521 A.2d 1281 (1987). Casper is the most important case in Maryland regarding the admissibility of breath test evidence. If the State is able to show the test was completed within two hours of apprehension, the test technician and equipment are approved by the toxicologist, the burden shifts to the defendant to show "an indicia of unreliability" in order to shift the burden of proving reliability for purposes of admissibility back on the State. Cross-examining the toxicologist What does he have to do? Did he do it? Is the test scientifically accurate and reliable? Is it legally valid?
DEFENSE CASE
Favorable test result PBT Result - Trans. Art. � 16-205.2 State test result Private test result - Cts. & Jud. Proc. Art., � 10-304(e) Lay witnesses Who can testify to the amount of alcohol the defendant consumed/opinion of sobriety Who can testify the defendant was not driving Who can testify to the defendant's normal lack of coordination Expert testimony As to the defendant's medical condition White v. State, 142 Md.App. 535, 790 A.2d 754 (2002)(the defendant may call a psychiatrist to testify the defendant suffered from post traumatic stress disorder, provided the proffer sufficiently relates the conduct to the condition). As to a defect in the scientific part of the State's case As to a defect in the vehicle the defendant was driving As to the defendant's alcohol level
CLOSING ARGUMENT
State v. Werkheiser, 299 Md. 529, 474 A.2d 808 (1984). In Werkheiser, the failure to obtain a blood sample as required by statute did not require a dismissal of the case. Instead the jury would be allowed to infer that a test, if conducted, would have been favorable to the defendant. State fails to prove it offered a test. Under Lowry v. State, 363 Md. 357, 768 A.2d 688 (2001), failure to offer a second test, where the first test is invalid, may generate a "Werkheiser inference." In a jury trial, the "Werkheiser inference" is not a jury instruction, but may be argued in closing by defense counsel. Sites; Brosan
Miranda confusion
Toxicologist's Regulations (.01 g/dl margin of error on breath tests) Reasonable doubt defendant drove Reasonable doubt as to intoxication or impairment No proof of alcohol consumption No proof of venue or jurisdiction Beckwith v. State (defendant only charged with intoxicated and State only proved under the influence) Insufficient corroboration of corpus delicti - Hadder v. State
SENTENCING AND COLLATERAL CONSEQUENCES Transp. Art., � 27-101 DUI � 21-902(a) & (d) First offense 1 yr./$1,000 Second offense 2 yrs./ $2,000 Third or subsequent offense 3 yrs./ $3,000 Second offense within 5 years of first - mandatory 5 days in jail Third offense within 5 years of first - mandatory 10 days in jail 12 points DWI � 21-902(b) & (c) First offense 2 mo./$500 Second or subsequent offense 1 yr./ $500 8 points Sentencing enhancements other than priors Refusal �� 16-205.1 (b)(2)(IV); 27-101(x) 2 mo./ $500 required notice 15 days before Circuit Court sentencing, and 5 days before District Court sentencing fact finder must find refusal is knowing refusal beyond a reasonable doubt Transporting a minor � 27-101(q) After of a conviction for � 21-902(a) or (d) First offense 2 yrs./ $2000 Second offense 3 yrs./ $3000 Third or subsequent offense 4 yrs./$4000 After a conviction for � 21-902 (b) or (c) First offense 6 mos./ $1000 Second or subsequent offense 1 yr./$2000 Criminal Procedure Article, � 6-220 (formerly Article 27, � 641)(probation before judgment - not a conviction, MVA maintains a segregated record, may be stricken after finding the defendant violated probation) Preliminary Breath Test (PBT) is not admissible. See Harmon v. State, 147 Md.App. 452, 809 A.2d 696 (2002); Transp. Art., � 16-205.2. Case law
Sheppard v. State, 344 Md. 143, 685 A.2d 1176 (1996)(court may not order the defendant not to drive as a condition of probation) Shilling v. State, 320 Md. 288, 577 A.2d 83 (1990) State v. McGrath, 77 Md.App. 310, 550 A.2d 402 (1988) Carter v. State, 319 Md. 618, 574 A.2d 305 (1990)(State may not file subsequent offender notice in circuit court appeal if State failed to file timely notice before trial in the District Court) State v. Purcell, 342 Md. 214, 674 A.2d 936 (Md. 1996)(five year eligibility for second PBJ is dated from date of first conviction to date of second finding) Mitchell v. United States, 526 U.S. 314 (1999)(defendant may assert the Fifth Amendment at sentencing, even after a plea of guilt) Bailey v. State, 355 Md. 287, 734 A.2d 684 (1999)(home detention may not be imposed as a condition of probation, unless expressly authorized by statute, statutory authorization for "confinement" as a condition of probation is only in Charles County, St. Mary's County, Cecil County, Harford County and Calvert County) (note - in 2001 this decision was legislatively repealed - see Criminal Procedure Article � 6-219, 220 and 225). Harmon v. State, 147 Md.App. 452, 809 A.2d 696 (2002)( PBT result is not admissible in any court proceeding by virtue of Transportation Article, � 16-205.2)
Ethical considerations - On occasion, counsel will be required to walk an extremely fine line at sentencing. This occurs when the client has disclosed to counsel a prior conviction, usually in another jurisdiction, which does not appear on the Maryland driving record. Counsel has potentially conflicting obligations which can be reconciled. On one hand, the disclosure of the prior conviction may fall under the attorney-client privilege. On the other hand, the attorney owes the court complete candor and truthfulness. If asked by the court, counsel should assert the attorney-client privilege, defer to the client, and not make any representations that could be construed as misleading by the court. If the client makes a misrepresentation, counsel has a duty to urge the client to correct it or counsel must reveal it to the court. See Md. Code Ann., Cts. & Jud. Proc. � 9-108 (attorney-client privilege); Md. Rule 1.6; Md. Rules 3.3, 4.1 (duty of candor to the tribunal and to others); Ethics Opinion 92-39 (7/16/92); Ethics Opinion 89-17 (undated); Ethics Opinion 86-44 (undated); Florida Ethics Opinion 86-3 (12/15/86). In some situations, instead of deferring to the client, the attorney may choose to assert the Fifth Amendment on his or her behalf. Mitchell v. United States, 526 U.S. 314 (1999)(defendant may assert the Fifth Amendment at sentencing, even after a plea of guilt). Maryland Rule 4-245(B) Mitigation Age Educational background Military background Family status/obligations Work history/need for driver's license Alcohol education/treatment since the offense Prior driving record Community service record MVA consequences DUI � 21-902(a) 12 points Potential revocation or interlock under � 16-404 and 16-205 DWI � 21-902(b) & (c) 8 points Potential suspension or interlock under � 16-404 and 16-205 DWI/CDS � 21-902(d) 12 points Potential revocation or interlock under � 16-404 Administrative law judge may revoke, suspend, put on probation, refer to Medical Advisory Board, impose work and alcohol education related license restriction, impose alcohol restriction Immigration consequences As a result of the Immigration and Nationalities Act of 1996 (INA), a number of draconian provisions are in place that may result in the deportation of a non-citizen, for certain drunk driving related convictions. In all cases, the practitioner should consult with a lawyer who handles immigration cases on a regular basis. Aggravated felonies. If an alien is convicted of an offense that is considered to be an aggravated felony deportation is conclusively presumed. 8 U.S.C. � 1101(a)(43)(INA � 101(a)(43))(definition of "aggravated felony"); 8 U.S.C. � 1228 (INA � 238). For drunk driving, the offense must be a crime of violence as is defined by 18 U.S.C. � 16. 8 U.S.C. � 1101(a)(43)(F) (INA � 101). The Supreme Court held in Leocal v. Ashcroft, 125 S.Ct. 377 (2005), Florida felony DUI involving serious personal injury is not a �crime of violence� under 18 U.S.C. � 16 and therefore not an �aggravated felony� under � 237(a) of the Immigration and Nationality Act. The Court held that �use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense" does not include accident or offense without any mens rea requirement. However, the Court also said, �This case does not present us with the question whether a state or federal offense that requires proof of the reckless use of force against a person or property of another qualifies as a crime of violence under 18 U.S.C. � 16. DUI statutes such as Florida's do not require any mental state with respect to the use of force against another person, thus reaching individuals who were negligent or less.�
The final requirement is a sentence of at least one year. This includes the suspended portion of the sentence. Under the relevant provision a sentence of one year suspended would qualify for aggravated felony treatment. 8 U.S.C. �� 1101(a) (43)(F) (INA � 101) and 48(B). A "conviction" as defined by the INA includes probations before judgment and pleas of nolo contendere. 8 U.S.C. � 1101(a) (48)(A) (INA � 101). Crimes of moral turpitude. An alien who is convicted of two crimes of moral turpitude or one conviction of moral turpitude coupled with a conviction of an offense carrying a year or more in jail, within five years of entry, or ten years for certain permanent residents, is deportable. 8 U.S.C. � 1227 (a)(2)(A)(i) (INA � 237). Drunk driving while suspended, where the person was suspended as a result of drunk driving conduct was is a form of aggravated drunk driving in Arizona. It was also held to be a crime of moral turpitude in Matter of Lopez-Mesa, Interim Decision 3423 (BIA 1999).
APPEALS
Procedure - District Court judge should set appeal bond if jail imposed Circuit court discovery rules apply on appeal - Maryland Rule 7-112 De novo trial - Cts. & Jud. Proc. Art., � 12-401 (d), (g) Pollard v. State, 339 Md. 233, 661 A.2d 734 (1995) De novo sentence - Cts. & Jud. Proc. Art., � 12-702 (c) BIBLIOGRAPHY Treatises and books Critical Issues: Drunk Driving Prosecutions, Annotations from the ALR System, Lawyers Cooperative Publishing Company Cross-examination: Science and Techniques, Larry Pozner and Roger Dodd, The Michie Company Defending Drinking Drivers, Second Edition, John A. Tarantino, James Publishing Company Defense of Drunk Driving Cases, Richard Erwin, Matthew Bender and Company Drunk Driving Defense, (Fifth Edition 2000), Lawrence Taylor, Little, Brown and Company Drunk Driving Litigation: Criminal and Civil, Donald Nichols, Flem Whited, West Drunk Driving Primer, The National Association of Criminal Defense Lawyers, Mary E. Conn, Editor Drunk Driving: The Trial Notebook, The Trial Sourcebook, The Trial Workbook, Reese I. Joye and Jim D. Lovett, Kluwer Law Publishers Fighting to Win - DWI Trial Practice Manual, Patrick J. O'Guinn, Sr. Forensic Science Handbook, Richard Saferstein, Prentice Hall Handling Drunk Driving Cases, Stephen Brent and Sharon Shiller, Lawyers Cooperative Publishing Company How to Defend a Drunk Driving Case, Fifth Edition, A Guide to Practical, Procedural, and Legal Aspects, John Henry Hingson III, Clark Boardman Company, Ltd. Intoxication Test Evidence, Second Edition,Edward F. Fitzgerald and David N. Hume, Lawyers Cooperative Publishing Company Scientific Evidence, Second Edition, Paul Giannelli and Edward J. Imwinkelreid, The Michie Company 2002 Maryland DUI Manual, William D. Paton, Hanford Publishing Company Medicolegal Aspects of Alcohol, Edited by James C. Garriott, Lawyers & Judges Publishing Co. Government publications General Assembly of Maryland, Report of the Task Force on Drunk and Drugged Driving - 1988 Interim General Assembly of Maryland, Report of the Task Force on Drunk and Drugged Driving - 1989 Interim Marcelline Burns and Herbert Moskowitz, Psychophysical Tests for DWI Arrest, Department of Transportation, National Highway Traffic Safety Administration, June 1977 (DOT-HS-802-424)(Order # PB269309) V. Tharp, M. Burns, and H. Moskowitz, Development and Field Test of Psychophysical Tests for DWI Arrest, Department of Transportation, National Highway Traffic Safety Administration, March 1981 (DOT-HS-805-864)(Order # PB81203721) Snapper, Seaver, and Schwartz, An Assessment of Behavioral Tests to Detect Impaired Drivers, December 1981 (DOT-HS-806-211)(Order # PB94780251) T.E. Anderson, R.M. Schweitz, and M.B. Snyder, Field Evaluation of a Behavioral Test Battery for DWI (Driving While Intoxicated), National Highway Traffic Safety Administration, Washington, D.C. Office of Driver and Pedestrian Safety, September 1983 (DOT-HS-806-475)(Order # PB84121169) Richard P. Compton, Field Evaluation of the Los Angeles Police Department Drug Detection Program, Department of Transportation, National Highway Traffic Safety Administration, February 1986 (DOT-HS-807-012) Richard P. Compton, Pilot Test of Selected DWI Detection Procedures for Use at Sobriety Checkpoints, (DOT-HS-806-724)(Order # PB86170958) National Highway Traffic Safety Administration, DWI Detection and Standardized Field Sobriety Testing. US Dept. of Commerce Technology Administration National Technical Information Service Springfield, VA 22161 800-553-6847 for orders 888-584-8332 customer service http://www.ntis.gov
Since material ordered from NTIS may not be returned and is nonrefundable, the order numbers listed here should be confirmed prior to ordering.
DRUG RECOGNITION AND EVALUATION MATERIALS
The NTIS web site also has the videotapes that are used in the courses. Videos American Bar Association Video, The Standardized Field Sobriety Test, A New Weapon Against Drunk Driving, August 1991 National Highway Traffic Safety Administration, DWI Detection, (PB94-780236) Seminars Headlines Marketing, Mastering Scientific Evidence in DUI/DWI Cases, April 10-12, 2003, Atlanta, Georgia, www.duiseminars.com National College of DUI Defense, Summer Seminar, July, 2003, Cambridge, Massachusetts, www.ncdd.com NACDL, DUI Seminar, Fall 2003, Las Vegas, Nevada Minnesota Society for Criminal Justice, Getting Tough on DWI: The Defense, February 13-15, 2003, Las Vegas, Nevada The Indiana University, Robert F. Borkenstein Course on Alcohol, Drugs and Highway Safety: Testing, Research and Litigation, May, 2003, Bloomington, Indiana NHTSA COURSES DWI Detection and Standardized Field Sobriety Testing - Student Course (24 hrs) DWI Detection and Standardized Field Sobriety Testing - Instructor Course (32 hrs) Newsletters DWI Law & Science Journal (John Tarantino, ed.). Published monthly by Whitaker Newsletters, 313 South Avenue, P.O. Box 192, Fanwood, N.J. 07023 (800-359-6049). Subscription rate: $260/year. Drinking Driving Law Letter, (Donald H. Nichols and Flem Whited, III, ed.). Published 26 times per year by West Group, 620 Opperman Drive, St. Paul, MN, 55164 (800-328-4880). Subscription rate: $362/year. Organizations The National College for DUI Defense. The National College for DUI Defense, headquartered in Houston, Texas, consists of a Board of Regents of 12 prominent DUI attorneys, 100 founding members, sustaining members, and unlimited general membership. The College sponsors the Harvard Summer Session, an intensive three-day seminar/workshop held annually in July at Harvard Law School, as well as an annual two-day scientific seminar in the winter. The College also maintains an Internet website http://www.ncdd.com, with access to various resources and listings of members available to the public. Information can be obtained from Executive Director, Rhea Kirk at National College for DUI Defense, 445 S Decatur St., Montgomery, AL 36104, (334-264-1950) Internet - a partial list of some related internet resources National College for DUI Defense - http://www.ncdd.com William C. Head's website - http://www.drunkdrivingdefense.com Lawrence Taylor's website - http://www.duicentral.com Leonard Stamm's website - http://www.lstamm.com; http://www.lennystamm.com National Highway Traffic Safety Administration (NHTSA) - http://www.nhtsa.dot.gov National Association of Criminal Defense Lawyers (NACDL) - http://www.criminaljustice.org Maryland Criminal Defense Attorneys' Association (MCDAA) - http://www.mcdaa.org Expert witnesses The Forensic Services Directory. (800-526-5177). (Also available on WESTLAW or LEXIS.)
Directory of Alcohol Related Forensic Experts, published by Whitaker Newsletters, 313 South Avenue, P.O. Box 192, Fanwood, N.J. 07023 (800-359-6049). The following is a partial list of blood-alcohol and breath testing experts: Nicholas Lappas, Ph. D., Forensic Toxicology, George Washington University, Washington, D.C., (202-994-1468) Michael P. Hlastala, Ph.D., Department of Medicine, University of Washington, Seattle, WA (206-543-3166) Dr. Richard Jensen, Forensic Associates, Minneapolis, MN (612-339-7903) Mary McMurray, Blue Mounds, WI 53517 (608-437-5344) Patrick Demers, Front Royal, VA, (540-636-8772) Gil Sapir, Esq., Chicago, IL (312-853-3600) Dr. David Stafford, Memphis, TN (901-448-6355) Dr. James Woodford, Atlanta, GA (404-270-1872) Yale H. Caplan, Ph. D., D-ABFT, Director, National Scientific Services, Inc., Baltimore, MD 21208 (410-486-7486) Dr. Alfred Staubus, Columbus, OH (614-292-0891) The following are experts on the subject of field sobriety tests:
Dr. Marceline Burns, Southern California Research Institute, Culver City, CA (310-390-8481)
Dr. Spurgeon Cole, Clemson University (803-656-5849) Steve Rubenzer, Ph.D., ABPP, Diplomate in Forensic Psychology, American Board of Professional Psychology, American Board of Forensic Psychology, 11914 Astoria, Suite 490, Houston, TX 77089, (281-481-5715) Robert La Pier, Rigby, ID 83442, (208) 754-4643 (800) 257-4643, offers training under standards set forth by the International Association of Chiefs of Police (IACP) and the National Highway Traffic Safety Administration (NHTSA) for administration of and instruction in standardized field sobriety tests William M. Taylor, Gainesville, GA 30501 (770-534-1501) Joseph Citron, M.D., J.D., Atlanta, GA 30327 (404-261-2911) Richard Swope, Davie, FL (305-476-7640)
Peace officers may, a fortiori, make an arrest for a crime or misdemeanor committed in their view, without any warrant. An arrest may therefore be made by a constable, a justice of the peace, sheriff, or coroner. Secondly, an arrest may be made by virtue of a warrant, which is the proper course when the circumstances of the case will permit it.
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