Category: Traffic

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.

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?