Required Automobile Security – Transportation Article 17-104

Under Maryland law (specifically Md. Code Ann. TA § 17-104), an owner of a vehicle must maintain required security (almost always insurance, in rare cases a self-insured bond substitute) during the registration period for the vehicle.

Three trial issues present themselves regarding any prosecution of this charge. While it’s non-jailable, defense counsel who face this charge along with others at trial should keep this in mind.

Article 20 of the Md. Declaration of Rights holds that the trial of facts where they arise is one of the “greatest securities” of the people. This provision has been interpreted to require the trial of criminal charges, including non-jailable traffic misdemeanors, in the county/Baltimore City where they arose. If a motorist receives this citation in July 2013 for a lapse that occurred in another Maryland jurisdiction previously, the citation may lack proper venue which in this case may be fatal. At a minimum, the government may have a hard time proving the geographical nexus during the alleged lapse.

The second involves the proof of the violation itself. Certified records from the MVA are admissible but the registration record at hand will not always be certified, not will there likely be a proper chain of custody for a non-certified record. Further, the defendant retains his constitutional confrontation rights and that may get the MVA paperwork thrown out.

Finally, there is a 1-year statute of limitations for most misdemeanors in Maryland. A violation charged more than a year after an alleged failure to maintain security may fail due to that statute.

Stopping for red flashing lights on a schoolbus in Maryland

Under 21-706 of the Maryland Transportation Article, you have to stop at least 20 feet behind (if approaching from behind) or 20 feet from the front (if approaching from the front) of a schoolbus with red flashing lights or a stop-sign extended out from the bus.  There is an exception for buses on the opposite side of a “divided highway.”  The definition of a divided highway is a little complicated and could be clearer, but it essentially means space, barrier or impediment between two “roadways.”  There’s no definition of precisely how sharp the division has to be; there’s no requirement for a curb, a jersey wall, a separation by dirt or something other than pavement, an physically impenetrable barrier, etc.; the statute could be much clearer, particularly since it involves 2 points and up to $1000.00 in fines.

If there is any doubt in your mind about whether you are or are not on a “divided highway”, you should absolutely stop for the bus in Maryland.

Fleeing and eluding the police isn’t stupid because it’s illegal….

it’s illegal because it’s stupidly dangerous.

Baltimore Sun, January 22, 2013:

The incident occurred at about 6:25 a.m., when the sheriff’s deputy saw a Dodge Ram 1500 traveling at a high rate of speed in the Finksburg area.

The deputy tried to pull the car over, but the motorist failed to stop and continued at a high rate of speed onto Old Gamber Road, then turned right onto Old Westminster Pike, according to the sheriff’s office.

The car turned into the Jiffy Mart then continued, without yielding, onto Route 140, where it struck a Ford van that had been traveling eastbound, the sheriff’s report said.

Context. I used to live within a long walk of that Jiffy Mart and know those roads well (my parents still live in Finksburg). Route 91 is Gamber Road and Route 140 is Westminster Pike, also called Baltimore Boulevard, which dumps into I-795 a few miles southeast of the accident. Each of those roads has a roughly parallel narrow and old “Old Gamber Road” and “Old Westminster Pike” which meet in a semi-residential stop sign intersection about 1/8 mile S of the intersection of 91 and 140, which is a major thoroughfare intersection (and a somewhat dangerous one.)

View Larger Map

Where the young, and now dead, 29-year old reportedly entered 140 was at the mouth of the Jiffy Mart, which sits between high-traffic 140 and sleepy, essentially access road Old Westminster Pike. In darting from Old Westminster Pike onto Westminster Pike across the lot of the Jiffy Mart, the motorist apparently entered headlong into a very high traffic road with near-Interstate volumes headed southeast to Baltimore, Towson, Pikesville, I-795, etc. It may be the heaviest rush-hour traffic density corridor road in the Baltimore metro area not served by any public transit whatsoever, though the NW end of the Baltimore Metro is 9-10 miles down 140 and I-795.  Entering southeast onto 140 at a high rate of speed at an hour before sunrise in winter after a major federal holiday as reported to evade a law enforcement agent would be rather dangerous and, in this case, was apparently fatally so.

Thinking that you can outrace a police vehicle successfully is an extreme example of maurylogic and, if events were as reported, a fatal example.  Very sad to hear and am glad that the other motorist wasn’t injured more severely.  Please, if you get pursued by the police in Maryland, don’t play OJ or Bo and Luke Duke: pull over in a safe and orderly manner, stay calm and if necessary contact your attorney.

When is a PBJ not a PBJ in Maryland traffic court?

There are certain circumstances where getting a probation before judgment will not help a motorist that much in Maryland’s traffic court.

When the charge is an alcohol charge, insurance carriers can see any administrative alcohol license suspension even if the ultimate jailable offenses of driving while impaired/driving under the influence do not result in convictions or even in guilty findings.

When motorists have a commercial driver’s license, certain violations get reported to the federal government as “major infractions” even if a Maryland court grants probation before judgment.  Most notably among them is a finding of a specific speed more than 15 miles an hour over the speed limit while driving a commercial vehicle.  In such cases, the federal government will ignore Maryland PBJ (as will other states that coordinate with the federal government on commercial driver’s licenses.)  It can sometimes be more important for some motorists to avoid 15 over and a PBJ, than a conviction outright at 14 miles an hour, as a second “major infraction” can suspend a motorist’s CDL status and livelihood EVEN IF the judge generously exercises discretion to grant probation before judgment.

When there’s an accident, the entry of a PBJ will not affect the attitude of the carriers and auto tort bar towards civil liability; in such cases, a chargeable accident will have much of the same effect as a moving violation conviction, possibly much more depending on the specifics.

Finally, the granting of a PBJ may not remove immigration fall-out for non-citizens charged with major offenses.  An “aggravated felony” can include misdemeanors for which the maximum punishment equals or exceeds two years in jail.  Accordingly, some of the more severe motor vehicle charges can have immigration consequences for non-citizens even if a judge grants PBJ.  The interface of immigration law and criminal law is a liability-prone area for criminal practice and attorneys need to be extremely detail oriented whenever representing a non-citizen in criminal court.

Anyone facing any of these situations, ESPECIALLY those involving a theoretical possibility of jail but also civil, CDL consequences or any immigration consequences of any sort, should retain counsel.  Part of the reason is that an unrepresented person might be persuaded by a prosecutor offering a bad deal in the form of “not opposing probation” when the fight to a not guilty on all or at least some of the charges is necessary.  It’s always a good idea to take an attorney to court, but it’s more important when the consequences are complex, especially more complex that even the sentencing judge may realize.

“What Does a DUI/DWI Cost?” – A LOT

Sometimes I get asked by clients “how much does a DUI cost?”  Literally – in those words.  When I hear this question worded this precise way, I suspect (okay, I know) that I am dealing with someone who is ignoring reality, someone who hallucinates that the only cost of a driving under the influence charge is my legal fee.  Sometimes I accept such clients.  Sometimes I refer them out.  I am occasionally tempted to charge them $100,000 for putting up with their willful refusal to face reality, a “screwy flake” surcharge, except that Maryland lawyers’ ethics rules specifically prohibit quoting an unreasonable fee just to discourage a client.

Happily, it’s much more common for clients facing charges of operating under the influence to come to my office with a serious, reflective focus on their circumstances; those clients are much more satisfying to help.

Here are some of the money costs that motorists facing charges of driving under the influence/while impaired must face as possibilities, depending on the specific facts of the case and the disposition of the case by the courts and administrative agencies.

Fines – Up to $1000.00 in Maryland plus court costs, sometimes more with other charges added in.

Replacement of transport while suspended or revoked – how good a driver is your wife, husband, mother, father, housemate or next-door neighbor?  Do you have cash for cabs?  Remember: driving while suspended carries almost the same penalties as driving under the influence, and Maryland courts actually do jail motorists for driving while revoked.

Legal fees – not cheap (i.e. if you want quality representation you will pay a quality fee to a quality attorney.)  You may need an attorney for court, for appeals or re-trial, for post-trial motions including motions to modify sentence, for one or possibly multiple MVA hearings and if you lose your job because of your DUI situation an attorney to take to an unemployment appeals hearing to advocate for your rights.  If you violate your probation, or your probation agent thinks you did, you will also need an attorney in that unfortunate circumstance.  Competent legal representation can often help in predicting, controlling and reducing the damage of a DUI charge, sometimes leading to a not guilty finding depending on the government’s evidence.

Probation fees – charged monthly in most cases.

Costs of compliance with court order  – lots of gasoline or bus fare to get to court, to probation, Mother’s Against Drunk Driving victim impact panels, assessment, counseling, education, treatment, rehabilitation, driving school – including opportunity costs against your ability to earn a living while dealing with the fallout.  These costs are of course higher if you get convicted far away from your home or out of state.

Insurance deductibles – depending on facts of case and your coverage.  If you don’t have insurance and you hit someone while drunk, the personal injuries that you inflict on your victims may not be dischargeable in bankruptcy court.  If your own vehicle is damaged, you may face repair bills on your own or under your collision coverage or other coverage.

Insurance rates – you should not be surprised to learn that insurance carriers despise drunk driving and take an exceptionally unforgiving attitude towards evidence of alcohol motoring violations.  If you were on the hook for $40,000-$300,000+ of some motorists drunken adventure, how forgiving would you be?  Losing your insurance is a real risk, after which loss you will probably only have access to MAIF (if you are a Marylander), which is terrible, high-cost insurance.

The non-monetary costs of DUI are substantial as well:

Jail – What is the value of your freedom and good name?  How much do you think you will dislike the jail experience?

Conviction Record – can you keep your job with a DUI conviction on your record?  Can you replace your job if you cannot drive or if your boss or the government doesn’t want your record on its payroll?

Indignity –  congratulations, your arrest qualifies you for a career in television – on COPS, doing the perp-walk

Filth – jails are not maintained to the sanitary and cleanliness standardas of Swiss hotel rooms

Shame and Guilt – if you are capable of feeling these emotions (some are not), you may experience them as part of this process

Grounded – the loss of your enjoyable pursuits and career aspirations due to loss of your driving privileges, grounded not by your parents but by the MVA or a Maryland judge

Disrespect – will you lose respect among your family, friends and co-workers when they find out?

Grief  – this you will experience if you maim someone including yourself or kill someone other than yourself (unless you are a sociopath)  If you kill a woman, her brother, his wife and their infant son after a night on the town, how will you forgive yourself?  This is not a hypothetical; my closest friend in law school Nancy Yellin died in such an event barely outside her parent’s home in Florida in the fall of 1997. If you have a conscience – let’s hope you do – your grief will be unspeakable.

There are two ways to prevent a DUI charge – prevent the drinking or prevent the driving.

To prevent the drinking, simply do not drink any alcohol; if this poses difficulties for you, GET HELP FROM AA MARYLAND or AA-DC AREA or another similar sobriety support fellowship.  If you do not drink alcohol, by logic you will NOT drive under the influence of alcohol.

To prevent the driving, make yourself unable to drive by leaving the car at home and catching a cab.  While cabs are not cheap, they are FAR cheaper than DUIs are.  A cab from Fells Point to Towson, or from downtown Annapolis to Severna Park, or to Olney from Bethesda might cost $30-50 with tip; this is less than 1% of what you might spend on experienced attorneys, fines, deductibles and future cabs after you lose your license if you get cited for DUI in an accident.  Another alternative is to take your over-the-limit self to a hotel or motel and sleep off your drunk or sober up while watching Jay Leno or infomercials.

Bottom line: sobriety is CHEAP.  So is responsible drinking.  DUI is hideously expensive and destructive.  Far better that you stay sober or stay out of the driver’s seat and waste the legal fee, the money for the fines, the probation fees, the deductibles and other money on a big screen TV, an iPad and a trip to Vegas; none of that will kill anybody or cost you your job.

Basic Guide to Maryland MVA License Hearings

Under Maryland law and regulation, the Maryland Motor Vehicle Administration (MVA) has the duty to administer the motorist license system and to call motorists in for a “Point System Conference” and send motorists to driver improvement programs or “DIP.” More ominously, the MVA can suspend or even revoke a motorist license for one of a number of reasons authorized by statute.

At three points, a motorist receives a formal warning from the MVA. At five points, the motorist is called to a point system conference. At eight points the license is suspended and at 12 the MVA revokes the license. A motorist does have the right to request that the Office of Administrative Hearings (OAH) review and modify the proposed suspension or revocation to a lesser sanction. For motorists whose employment or opportunity for employment would be adversely affected by a suspension or revocation, the OAH has jurisdiction to replace a suspension with a reprimand or conditions less than full suspension upon a showing of good cause and reasonably solid evidence. An attorney can often be of great help in such cases.

The length of a point system suspension varies according to how many times the motorist has previously been suspended. In the case of a conviction for driving while impaired or for driving while impaired by drugs or by alcohol and drugs – 8 point offenses which are sufficient to suspend though not by themselves to authorize 12-point revocation – the MVA and OAH may suspend for a longer period of time.

There was a point at which professional drivers – drivers whose job it was to drive such as cab drivers, not merely commuters – could enjoy higher point system maximum before suspension or revocation if they requested an OAH hearing. This provision existed presumably to account for the much larger mileage totals that such motorists would accrue per year; someone who gets, say, a ticket every 20,000 miles is more likely to get suspended with more miles driven, but is not necessarily a good candidate for candidate for a suspension. This provision is no longer law, though such drivers can still request leniency under the general provisions for drivers whose employment would be adversely affected.

The second major category of suspensions comes from administrative sanctions under the Courts article of Maryland’s Code, section 16-205.1 and related sections. This provision governs alcohol-related suspensions relating either to the results of a alcohol breath test at the station or the refusal to submit to such a test. Upon refusing a lawfully-offered test, or upon failing a lawfully-offered and lawfully-administered test, the law enforcement officer will confiscate the motorist’s license card and replace it with a temporary paper license that contains a notice of rights to appeal and an expiration date of 45 days, form DR-15A.

The motorist MUST file an appeal to OAH within 10 days or that suspension will go into effect for at least 45 days for a failure or 120 days for a refusal (or more under some circumstances) at the expiration of the 45-day paper license. A motorist can request an appeal for up to 30 days, but she or her runs a serious risk that his or her license will be suspended pending the scheduling of the hearing, rather than stayed until the hearing date. The details of when a motorist can get leniency or modified suspensions for an alcohol violation are complex and beyond the scope of this article, but there is almost no leniency available in the case of a refusal.

A third major category of Maryland license suspensions comes under Medical Advisory Board (MAB) jurisdiction. Not all bad drivers are bad through culpable neglect; some have medical issues that partially or complete render motoring unsafe, or at least unsafe without specific assurances of treatment or supervision of the conditions. The MVA has the authority to suspend the licenses of motorists who appear to be at risk of meaningful medical harm to themselves or others. Often the suspension may result from the reporting to MVA of a diagnosis or other report of a medical condition such as epilepsy. Under 16-206(a)(ii) of the Transportation article, the MVA has the power to suspend a motorist whom it judges to be unsafe or unfit, and under applicable regulations of the Code of Maryland Regulations the MVA will suspend either after a hearing or in emergency circumstances immediately the motorist’s license to drive pending meaningful assurance that the condition does not represent a threat of a loss of consciousness or other impediment to safe driving.

The OAH is an independent executive branch agency does not depend politically or in its budget process upon any state agency for which it conducts hearings; it also conducts hearings in cases involving the Real Estate Commission, many sub-agencies under the Department of Labor, Licensing and Regulation (though NOT most unemployment hearings) and other agencies, though the MVA provides the lion’s share of the volume at the OAH according to anecdotal reports. Proceedings before the OAH are conducted under relaxed rules of evidence, and the a party dissatisfied with the decision of the OAH can file an appeal to a Circuit Court for judicial review.

In all of these cases, there is a right to due process through an administrative hearing, though the right of review will usually require a written request with a short deadline and a filing fee to the OAH It is most important that any motorist who receives notice of a suspension and who wishes to keep her license NOT ignore the mail, NOT wait but instead to secure the right to an appeal and consult with counsel. Attorney Bruce Godfrey has been assisting motorists and other Marylanders before the OAH since the first months of his career in 1995; motorists with questions about OAH practice can contact the Law Office of Bruce Godfrey at 410-561-6061.

Even Judges Are Not Above the Law in Maryland Traffic Court

Washington Post, April 15, 2011:

A Montgomery County district judge was cited for reckless driving Thursday after an investigation into another driver’s claim of road rage that started outside a courthouse and nearly caused a 70 mph collision on Interstate 270 during rush hour, according to police records and officials.

Judge Brian G. Kim, 49, noted in Rockville legal circles for running a tight courtroom, paid a $510 fine Thursday. He declined to comment about the Oct. 18 incident, saying through his attorney that he considered the matter over.

The other driver, Rockville lawyer Rachel Viglianti, reported the incident as it occurred, calling 911 on her cellphone. She submitted a written account to state police investigators three days later

Out of respect for copyright’s fair use privilege I did not copy further, but go read the whole thing.

Several points.

1) Full disclosure: I have personally met Judge Kim and worked with him on a client consultation competition at the University of Baltimore School of Law, where he and I were both judges of students’ performance in conducting professional consultations with mock clients. This may sound like an odd thing on which to have a competition, but it’s arguably just as important as testing a med student’s diagnostic skills. When I met him in person, he was congenial and professional. I have also appeared before Judge Kim on criminal and traffic matters, but not enough times to form a full opinion of his service on the bench.

2) I would be mortified to be either an attorney accusing a judge OR a judge facing an accusation by an attorney. I once defended a motorist accused of ramming another vehicle with his 18-wheeler deliberately; the alleged victim was an Anne Arundel County attorney and, unfortunately for my former client, attorneys tend to make very good witnesses (and that one attorney certainly did testify extremely well for the State.)

3) I feel bad for the young associate attorney/witness, who may be remembered in her firm and in the Bar far too long for being the accuser of a judge rather than for her presumed skill set, diligence or professional judgment.

4) Reckless driving is a SERIOUS offense in Maryland. It is not jailable, but it does carry 6 points, which is enough to get a motorist called in for a mandatory point system conference or a referral to traffic school. At 8 points, a motorist runs an immediate and serious risk of license suspension. Reckless driving is defined pretty stringently in Maryland and is often overcharged; it is quite common for a judge to find a motorist not guilty on reckless driving and instead to find the motorist guilty of mere negligent driving, which carries only 1 point. Unlike in Virginia, speed in Maryland is not per se reckless or even necessarily evidence of recklessness.

5) When any motorist pays a citation as did the accused motorist did in this case, the plea is guilty. The motorist gives up the right later to claim non-guilt; paying the citation means the admission of guilt and the points.

6) I do not know whether reckless driving  – now admitted through the payment of the citation in this case – constitutes an offense practically under the jurisdiction of the Maryland Judicial Disabilities Commission, which has the power to discipline Maryland judges. Arguably any violation of any law constitutes a violation of Rule 1.1 of the Code of Judicial Conduct: “A judge shall comply with the law, including this Code of Judicial Conduct.”  I am not aware of a specific precedent in Maryland for reckless driving as a judicial conduct matter.

Important Maryland Cases: State v. Atkinson, 331 Md. 199 (1993)

Boyce Atkinson was charged with driving while intoxicated in Harford County.  His attorney at trial agreed to with the State to a not guilty statement of facts, recounting that Mr. Atkinson was found slumped over in the driver’s seat with the keys in the ignition and engine off.  Upon being awakened by the officer, Mr. Atkinson emitted a strong, also described as “very strong” odor of an alcoholic beverage.  Per the statement of facts, Mr. Atkinson  declined the officer’s request to perform a field sobriety test and was thereupon arrested.  Mr. Atkinson refused field sobriety tests at the emergency room and was taken back to the station.

Mr. Atkinson was convicted by the trial court upon these facts and was sentenced to 15 days of live time in jail and was fined.  His attorney filed an appeal to the Court of Special Appeals; the Court of Appeals intercepted the case on its own certiorari motion.

The issue considered on appeal was whether the evidence presented proved, to the sufficient standard of proof, that Mr. Atkinson was in “actual physical control of the vehicle” under § 11-114 of the Md. Ann. Code, Transportation article, which definition § 21-902 of that article incorporated in its definition of “drive” for “driving while intoxicated.” Insufficient evidence, per the Court, appeared in the record to the effect that Mr. Atkinson committed actions fairly described by the circular term “drive” or the terms “operate” or “move” included within the statutory definition of “drive” under § 11-114; only the fourth definition of “drive,” being in “actual physical control of the vehicle,” might apply.

The Court discussed prior precedent that had not specifically addressed the issue of what behavior might constitute being in “actual physical control,” due to a charging defect in that prior case’s charging document, and another precedent where circumstantial evidence allowed a finding that the drunk motorist’s vehicle – with the engine off but hot, the lights on and the gear shift in drive – had in fact been operated very recently while the motorist was still drunk.  Accordingly, the court found that that case was no guidance to the question of when a motorist was in “actual physical control” of a vehicle, since that four definition was not needed for the conviction of that motorist.

The Court discussed how a number of other states defined similar language in their drunk driving statutes, noting diverse definitions.  Some seem to be motivated by a policy of deterrence and defined the term very broadly.  The Court rejected this approach, finding that to convict those who merely sat in the driver’s seat in possession of ignition keys would effectively create a new crime that the General Assembly of Maryland did not create.  From the decision, “We do not believe the legislature meant to forbid those intoxicated individuals who emerge from a tavern at closing time on a cold winter night from merely entering their vehicles to seek shelter while they sleep off the effects of alcohol.”

The Court rejected the approach of Arizona’s highest court, which allowed for motorists who were already intoxicated to pull over and sleep off a drunk without fear of reprisal, noting that that approach might encourage drunk drivers to test their skills first before deciding to pull over.  The Court noted that a number of factors may influence whether a motorist is considered in “actual physical control,” including:

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

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

3) whether the person is awake or asleep;

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

5) whether the vehicle’s headlights are on;

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

The Court concluded that there was not evidence beyond a reasonable doubt that Mr. Atkinson was in actual physical control of his vehicle, and on that basis reversed the conviction. The Court warned, however, that its decision was not an invitation to motorists under the influence to test their luck on the roads and sleep off a night of drinking, and that evidence that the vehicle already had been operated, moved or driven while the motorist was already intoxicated could still lead to a conviction.

In my view, this decision is a fair reading of the statute involved and the balancing test is wise. Nonetheless, I think that there should be a public policy in favor of mitigating the DWI penalty when motorists who conclude that they actually had one too many pull off the road and shut the vehicle down, and it’s better to pull oversooner than to try to make it to the next exit, find a motel or all-night diner and exit the vehicle once the motorist has reached that unfortunate conclusion. If the motorist is tipsy, do we want her off the road here and now, or later three miles down the road at the Motel 6? I’d favor allowing such drivers to face a fine only, or a nominal jail sentence of 1-2 days, not because drunk driving is mild but because stopping drunk driving is important. I suspect that a decent number of drivers conclude only after they start driving that between their BAC and their fatigue, they should be off the road; they should be encouraged to pull over soonest with mitigated criminal exposure.

Atkinson indicated that the latter point is something for a legislature to consider, not an appellate court, though a trial court may and must consider the overall conduct of a motorist when it imposes any sentence and attempting to mitigate the effects of a bad choice certainly merits a mitigated sentence.

Important Maryland Cases: State v. McCallum, 321 Md. 451 (1991)

This is the first in a series of important legal cases which, in my judgment as a practicing Maryland attorney, Maryland attorneys should simply know cold, be able to cite them almost from memory and have them as close to their fingertips as we do major U.S. cases like Brown v. Board of Education or Roe v. Wade.  Maryland is a sovereign state with its own legal tradition; that fact deserves intellectual and civic respect in its own right.  The emphasis in this series will be on cases most practically useful to legal practitioners, as opposed to more theoretical cases or cases dealing with issues lacking practical significance in the modern era.

In this series, citations will be to the Maryland Reports and Maryland Appellate Reports volumes for, respectively, the Court of Appeals of this sovereign State and the Court of Special Appeals, our intermediate court.  It is customary to cite also to regional reporters per the diktat of the Blue Book, a legal style manual produced by some non-Maryland law schools located, inter alia, in Cambridge, Massachusetts.  This series will not cite to the Atlantic Reporter just as I would not cite to a Supreme Court case volume that combined our nation’s legal decisions with those of France, Canada, Germany and Ireland.

An important case for traffic and criminal defense attorneys to know is State v. McCallum, 321 Md. 451 (1991).  In McCallum, the Court of Appeals was faced with the conviction of a motorist for driving while suspended and sentenced to ninety days of actual jail time.  The issues on appeal by the State were whether the trial court had erred, as the Court of Special Appeals had ruled, in denying a scienter/mens rea jury instruction and in allowing the jury to see the motorist’s extensive driving record replete with highlighted marks, rather than merely relevant excerpts thereof.

The Court ruled on the jury instruction issue and did not rule formally on the evidentiary issue, giving only a general warning to the trial court to provide only relevant evidence to the jury on a future trial.  In a 4-1 decision (two members of the court not participating), the Court focused on three factors:

  • the inferred punitive intent of certain suspensions for failing to take a breath test, pay a court fine or the like;
  • the penalty allowing for a year in jail on a first offense and up to two years on a subsequent offense; and
  • the fact that a motorist without actual knowledge of a suspension simply would not be in the  state of mind to avoid driving

and concluded that the driving while suspended statute was largely punitive in character, as opposed to a mere regulatory enactment for the cause of the public welfare.  While public welfare enactments can be enforced under a standard of strict liability for violations (my example: not knowing you are speeding is no defense), punitive statutes require a showing of guilty knowledge of the facts or “mens rea” and therefore the Defendant was entitled to a jury instruction on the issue of mens rea.  The Court of Appeals upheld the opinion of Court of Special Appeals, which had reversed the conviction.

A concurrence by Judge Chasanow, joined Chief Judge Murphy, discussed how willful or blind ignorance of facts could constitute guilty knowledge.  Judge McAuliffe dissented, expressing the concern that those who were most responsible in their follow-through would be the most vulnerable to prosecution while those who were negligent would be most rewarded.

In my view, both the State and the defense bar overread McCallum frequently ; the case allows a mens rea instruction and affirmed the element of mens rea but does not provide much guidance as to how much guilty knowledge constitutes guilt for driving while suspended.  In the specific facts of this case, the Defendant had spent significant time in jail, missed suspension notices and had not provided a forwarding address to the MVA; most DWS defendants are both “better” and “worse” than Malcolm McCallum was in his 1991 trial.  Most DWS defendants don’t have current incarceration as both a mitigating and potentially aggravating factor.

Finally, most DWS defendants are charged under 16-303(h), which provides a substantially lower maximum penalty of 3 points, $500 in fines and 60 days in jail than does 16-303(c) with 12 points, 1 year and $1000.00 in maximum fines or more.  The “c” charge is for major suspensions while the “h” charge is for suspensions arising out of missing a court date or failing to pay a court fine in traffic court.  Most motorists found guilty of the fairly common “h” charge do not see actual jail, but are given probation before judgment and a minor fine or perhaps are convicted without a jail sentence.  While this “h” charge would apparently be punitive under the analysis of the court, the penalty is actually lower for the “h” charge than for suspensions for e.g. having a medical impediment to driving, for which suspensions the more severe 16-303(c) penalties apply.  Yet one would hardly consider a suspension for epilepsy or blindness to be “punitive” as a punishment for medical problems, rather than merely protective of the public welfare.

I would hope that Apple or Google would solve this problem.  There ought to be an app for that, i.e. an email service or other insta-check to confirm valid status on a vehicle or license.  On the iPhone sitting next to my laptop, there is a camera that can take a picture of a bar code and report pricing and availability on the product; I would love an app that could photograph a driver’s license card or vehicle registration and report back whether the paperwork is out of status.  Everyday I am in traffic court, I see motorists who are charged with driving a vehicle with suspended registration, 95%+ of the time due to the failure to complete emissions testing timely.  Any entrepreneurial takers?

Maryland’s Motorist Move-Over Law

I am proud to be a defense attorney and I never let myself lose sight of the fact that when an officer puts on his or her uniform, she or he is choosing to carry the power of the State of Maryland (whether hired by the State or by a local government) in a way that can inflict damage on my clients. Accordingly, I play for Team Client and Team Freedom, not for Team Government, and I never let myself forget what uniform I wear when I am on the courtroom field.

Nonetheless, reasonable people have to fact the fact that law enforcement officers – the heroic, brave and dedicated and the corrupt, abusive and oppressive alike – face a lot of hazards in their work. The rates of alcoholism and other dysfunctional issues and factors are higher among law enforcement officers than among the general public; this they have in common with attorneys to a large extent.

One of the most dangerous things that a law enforcement officer can do is to initiate a motor vehicle stop or otherwise to stop at the scene of a traffic incident. Pulling over motorists is a Forrest Gump “box of chocolates” event: you never know what you are going to get. An officer responding to a scene or initiating a stop might find people cranked out on drugs, smuggling goods, delivering weaponry or other contraband, leaving a crime scene, making their way to create a crime scene or hiding a dead body in the trunk. In addition to those hazards, a law enforcement officer almost always must conduct a stop very near on-coming traffic, often on a road shoulder that is poorly designed to accommodate both a stopped squad car and a walking pedestrian alongside it to reach a stopped motorist or a chaotic accident scene with multiple cars at oblique angles to the roadway.

Maryland was one of the last states to pass a “Move-Over” law requiring motorists to shift lanes away from emergency vehicles. I recall researching the issue a little over a year ago or so for a client; most states had passed one but Maryland, by that date, did not have such a statute in force. Maryland’s General Assembly passed such a law in 2010, i.e. it is law NOW, but the law did not gain much publicity. In open court, the Honorable Gary Bass, Judge of the District Court for Baltimore City, commented that he noticed that the law had not gotten much press in the Baltimore City media. The relative lack of coverage may have had roots in the fact that Baltimore has relative few road where compliance would be easy (i.e. most roads are narrow within the City limits, with few Interstate or other wide-highway miles for the population compared with e.g. Howard County), though that’s a conjecture on my part.

The statute covers all emergency response vehicles – police, fire, EMT and all other emergency vehicles – and basically requires that if moving one lane over from an incident is possible and safe, motorists must do so, amoing other requirements. Please take a look at the entirety of the code section below if you drive in Maryland; the law is about 99% common sense and it deserves motorists’ respect and commands the force of law in any event.

§ 21-405. Operation of vehicles on approach of emergency vehicles.

(a) In general.- On the immediate approach of an emergency vehicle using audible and visual signals that meet the requirements of § 22-218 of this article or of a police vehicle lawfully using an audible signal, the driver of every other vehicle, unless otherwise directed by a police officer, shall yield the right-of-way.

(b) Duty of driver upon approach of emergency vehicle.- On the immediate approach of an emergency vehicle using audible and visual signals that meet the requirements of § 22-218 of this article or of a police vehicle lawfully using an audible signal, the driver of every other vehicle, unless otherwise directed by a police officer, shall drive immediately to a position parallel to and as close as possible to the edge or curb of the roadway, clear of any intersection.

(c) Stopping until emergency vehicle passes.- On the immediate approach of an emergency vehicle using audible and visual signals that meet the requirements of § 22-218 of this article or of a police vehicle lawfully using an audible signal, the driver of every other vehicle, unless otherwise directed by a police officer, shall stop and stay in this position until the emergency vehicle has passed.

(d) Passing emergency or police vehicle.- A driver, when proceeding in the same direction as an emergency or police vehicle, may not pass an emergency vehicle using audible and visual signals that meet the requirements of § 22-218 of this article or a police vehicle lawfully using an audible signal unless:

  • (1) The emergency vehicle has stopped; or
  • (2) Otherwise directed by a police officer.

(e) Duty of driver upon approach of emergency vehicle on highway.- Unless otherwise directed by a police officer or a traffic control device, when an emergency vehicle using any visual signal that meets the requirements of § 22-218 of this article is stopped, standing, or parked on a highway, the driver of a motor vehicle approaching the emergency vehicle from the rear shall:

  • (1) If practicable and not otherwise prohibited, make a lane change into an available lane not immediately adjacent to the emergency vehicle with due regard for safety and traffic conditions; or
  • (2) If the driver of the motor vehicle is unable to make a lane change in accordance with item (1) of this subsection, slow to a reasonable and prudent speed that is safe for existing weather, road, and vehicular or pedestrian traffic conditions.

(f) Driver of emergency vehicle not relieved from duty of care.- This section does not relieve the driver of an emergency vehicle from the duty to drive with due regard for the safety of all persons.