Traffic

19
May
2011

“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.

Posted by Bruce Godfrey in Criminal Law, Pro Bono Services, Traffic, 3 comments
15
May
2011

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.

Posted by Bruce Godfrey in Traffic, 2 comments
15
Apr
2011

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.

Posted by Bruce Godfrey in News, Traffic
02
Apr
2011

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.

Posted by Bruce Godfrey in Major Maryland Cases, Traffic