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Maryland jurisdictions have slowly been replacing their 10 year old breathalyzers – affectionately called “breathaliars” by some – Intox EC/IR with the new breathalyzers – the Intox EC/IR II. This machine, manufactured by Intoximeters, Inc. in St. Louis, Mo. has a few improvements over its predecessor, according to the manufacturer.

In a letter dated July 6, 2006, M.R. Forrester, Chairman of Intoximeters, Inc., wrote the following about the newer EC/IR II:

One of the main reasons the EC/IR II was developed was certain parts of the EC/IR I were becoming obsolete, which made them harder to find and more expensive to replace. The primary difference concerns the Microprocessor on the motherboard and the case set. The analytical module in the EC/IR II is very similar to the one used in the EC/IR I in that we are using the same Fuel Cell sensor and sampling system. The microprocessor change is necessary because the EC/IR I microprocessor has been made obsolete since it is a state of the art device, which works at a far higher processor speed.

As often occurs with technological advances, the shortcomings of old technology are highlighted by the developments of new technology. For example, the higher flow of the new purge fan “is capable of opening [a] stuck mouthpiece.” The implication here is that the mouthpiece on occasion can get stuck, resulting in the machine recording insuficient breath. Additionally, the case set notes that there is higher “R[adio][]F[requency] immunity.” Although there is a claim that “RF immunity is adequate” in the EC/IR I, the need for higher RF immunity in the EC/IR II suggests otherwise. Other improvements made in the EC/IR II with serial numbers over 10,000 include modifications incorporating “additional test memory capacity, additional hardware to allow recirculation of a wet bath simulator, and enhanced EMC and RFI immunity.”
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Best Lawyers, the oldest and most respected peer-review publication in the legal profession, has named Leonard R. Stamm as the “Washington DC Best Lawyers DUI/DWI Defense Lawyer of the Year” for 2012.

After more than a quarter of a century in publication, Best Lawyers is designating “Lawyers of the Year” in high-profile legal specialties in large legal communities. Only a single lawyer in each specialty in each community is being honored as the “Lawyer of the Year.”

Best Lawyers compiles its lists of outstanding attorneys by conducting exhaustive peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. The current, 18th edition of The Best Lawyers in America (2012) is based on more than 3.9 million detailed evaluations of lawyers by other lawyers.
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According to an article in the Annapolis Capitol today, “Police arresting fewer for DUI” arrests are down for DUI in Anne Arundel County. The subheadline says “Officials hope stats mean not as many are driving drunk.” This is consistent with recent national news showing that DUI arrests are down in other areas of the country, but different reasons are given. “DUI Arrests Down; Drunk Drivers Still On the Road.”

The article notes a 43% drop in DUI arrests in Anne Arundel County from 2007 to 2010 while statewide DUI arrests dropped 9% over the same period, “from 24,909 to 22,604.”
County officials interviewed for the article state they are not doing anything different.

However, the Annapolis article does concede that in 2007 “the state Police Department shuttered its Annapolis barrack and began pulling personnel from the county.” This is consistent with the Washington article which attributes a sharp decline in the number of DUI arrests to budget cuts and a reduction in the number of troopers on the road.
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Clients charged with drug or alcohol offenses frequently ask why we recommend they submit to an evaluation and take an education and/or treatment class if they are presumed to be innocent. Doesn’t that make it look like they are guilty? The answer is no. It makes it look like they are dealing with a potential problem responsibly.

There are a number of good reasons why education and/or treatment is necessary when one is charged with a drug and/or alcohol offense. The first thing to consider is whether the person may be abusing the drug or alcohol that is the basis of the charges. If yes, then education or treatment may help to minimize the chance that the person will get in future trouble, as well as help them to cope with what could be a very challenging problem. The arrest is an intervention for many drug or alcohol abusers that forces them to confront an issue they might prefer to avoid confronting. It is not unusual for concerned family members to support attempts at getting treatment. A serious drug or alcohol problem can cause more than just legal problems, the health and well being of the client and his or her family or friends may be in jeopardy. Treatment can help.
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In the past year there have been a number of developments in the area of DUI law in Maryland, and most of them favor the State.

The Court of Appeals has issued a number of decisions favoring the MVA. In Hill v. Motor Vehicle Admin., the Court of Appeals rejected an argument that the DR-15 was misleading to drivers holding a commercial drivers license (CDL) because the form was claimed to not advise CDL holders that if they refused a breath test the interlock option would not available in lieu of the disqualification of the CDL. In Najafi v. Motor Vehicle Admin., although the Court of Appeals held that Najafi’s right to counsel was not violated, it said in dicta that a claim of a violation of the right to call a lawyer before deciding whether to submit to a breath or blood alcohol test cannot be litigated at an MVA hearing. In Motor Vehicle Admin. v. Loane, the Court of Appeals construed the plain language of Transportation Article, § 16-205.1(a)(2), that the implied consent law does not apply on purely private property. The Court held that despite this plain language that the implied consent law does apply on purely private property and that the issue cannot be raised in defense at an MVA implied consent hearing. In Thomas v. Motor Vehicle Admin., the Court of Appeals held that the “detention” referred to in § 16-205.1 is not required to be an arrest. In Motor Vehicle Admin. v. Aiken, the court held that the MVA need not produce the test strip or form Notification of Test Result, if the breath operator noted the test results under oath on the DR-15A Form. The court held that the MVA did not need to show in its prima facie case that the test had been administered with equipment approved by the toxicologist, because approval by the toxicologist was not listed as an issue that could be considered at the hearing under § 16-205.1(f)(7) of the Transportation Article. In Headen v. Motor Vehicle Admin., the Court of Appeals held that under § 12-111(b)(2) of the Transportation Article the MVA could designate drunk driving offenses as confidential after five years and deny expungement as to those convictions. The Court also held that a driver who is refused a drivers license due to an out-of-state suspension or revocation is not entitled to an administrative hearing to contest the refusal.

In Motor Vehicle Admin. v. Shea, the Court of Appeals reviewed the question of what constitutes reasonable grounds to support the detention at an MVA hearing. The facts included the officer’s statement concerning a moderate odor of an alcohol beverage on the driver’s breath and that the driver submitted to standardized field sobriety tests. An administrative law judge took action against Shea’s license. On appeal, in response to Shea’s argument that the DR-15 Form provided insufficient reasonable grounds, the circuit court ruled for Shea but held that moderate odor of an alcohol beverage combined with a seatbelt violation was an insufficient basis to conduct field sobriety tests. The circuit court ruled for Shea but held that moderate odor of an alcohol beverage combined with a seatbelt violation was an insufficient basis to conduct field sobriety tests. The Court of Appeals reversed, relying on Motor Vehicle Admin. v. Richards, since the Fourth Amendment exclusionary rule does not apply in MVA hearings. The Court also avoided deciding whether a moderate odor of an alcohol beverage alone could constitute reasonable grounds to support a detention to take a test, since the Court found that there was substantial evidence to support the finding of reasonable grounds, namely that the ALJ could have inferred on this record that Shea failed the standardized field sobriety tests.
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An article with the above title caught my attention this morning. “Innocent often fall victim to DUI laws” was published in the Picayune Item in Mississippi on August 24, 2011. The article makes many excellent points.

Police, in their anxiousness to enforce the drunk driving laws, arrest many people who are not impaired, but who have been drinking, and may exhibit some of the clues police associate with impairment. The article points out the 2/3 of Americans enjoy drinking on occasion. It notes:

There were 33,153 Mississippi DUI arrests last year, an astounding number. If DUIs were randomly distributed, every driver in the state would get at least one during his lifetime. A Colorado study showed that 20 percent of those arrested for DUIs had legal blood alcohol levels. The problem is that residual alcohol in your mouth can distort the results of the unreliable portable breathalyzers police often use to make an arrest.

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Title 16 of Maryland’s Transportation Article contains licensing requirements and license offenses. Included in this section is Maryland’s implied consent law (section 16-205.1), which requires drivers detained on suspicion of drunk driving to submit to an alcohol test and face license penalties for failing or refusing the test. The sections in Title 16 tend to have one thing in common: a license is only required to drive on “a highway or private property used by the public in general.” In other words, you can drive on purely private property without a driver’s license.

In the case of Loane v. Motor Vehicle Administration, the Court of Appeals considered the following sentence from section 16-205.1:

“[a]ny person who drives or attempts to drive a motor vehicle on a highway or on any private property that is used by the public in general in this State is deemed to have consented … to take a test if the person should be detained on suspicion of driving or attempting to drive while under the influence of alcohol….”

Despite what appears to be the plain language of the statute, the Court construed this section to apply on private property.

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Once a driver has been arrested for a DUI or DWI in Maryland by state, not federal, police, the arresting officer is required to read a form to the driver, called the DR-15 Form. This form explains the penalties for failing or refusing a breath or blood test. Of course if the driver passes the test, i.e. produces a result below .08, there is no penalty. Unfortunately, very few people have even the foggiest clue of what they will blow.

The penalty for failing the test is a 45 day suspension on a first offense or a 90 day suspension on a second or subsequent offense if the driver blows .08 or higher but less than .15. If it is a first offense within five years the driver may be eligible for work, school, medical, or alcohol education restricted driving privileges. If it is a second offense within five years the driver may only obtain a restriction allowing the driver to drive only vehicles equipped with an ignition interlock system.

If the driver blows .15 or higher the penalty is a 90 day suspension on a first offense or a 180 day suspension on a second or subsequent offense. In lieu of the suspension, the driver may be allowed to drive with an ignition interlock restriction for one year.

If the driver refuses the the penalties are a 120 day suspension for a first offense and a one year suspension for a second or subsequent offense. Again, the driver may be allowed to drive with an ignition interlock restriction for one year. A refusal may also be considered as evidence of guilt in court and may also subject the offender to an additional 60 days in jail.

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In the past year it has come to light that the Intoxilyzer 5000 ENs used in the District of Columbia provided false high readings, and that a number of defendants were convicted, and even sent to jail, as a result of these flawed tests. See 400 drunken-driving convictions in D.C. based on flawed test, official says, Washington Post, June 10, 2010. This experience simply illustrates the dire need for a check on governmental incompetence with respect to scientific evidence in general and breath testing in particular. According to letters written by Igmar Paegle, who assumed control of the Metropolitan Police Department (MPD) testing program, two fundamental mistakes created this problem. The first was the improper calibration of a number of Intoxilyzer 5000 ENs by the officer assigned to this task to read 20 to 40% higher than the correct value. The second problem was the failure of the MPD to perform accuracy checks. As a result, the problem went unnoticed for a significant period of time. Compounding this error, government officials reacted by attempting to withhold relevant information. To make matters even worse, complaints were filed against whistleblower officers. See D.C. to forgo breathalyzer testing for the time being, Washington Post, February 15, 2011.

MPD attempted to replace its Intoxilyzer 5000 ENs with a different make and model breath test unit, the EC/IR II. However, due to overwhelming problems the use of these units has been discontinued in D.C. The test strips for the EC/IR II in both DC and Greenbelt formerly provided:

I CERTIFY THAT THE SAMPLE(S) ANALYZED ABOVE WERE TAKEN ACCORDINGLY [sic] TO GUIDELINES SET BY THE DISTRICT OF COLUMBIA’S CHIEF TOXICOLOGIST (OR HIS/HER DESIGNEE); THAT THE SAMPLE(S) WAS (WERE) TESTED ON EQUIPMENT USED ACCORDING TO THE MANUFACTURER’S SPECIFICATIONS AND APPROVED FOR THE EVIDENTIAL MEASUREMENT OF BREATH ALCOHOL BY THE CHIEF TOXICOLOGIST (OR DESIGNEE); THAT I AM LICENSED BY THE CHIEF TOXICOLOGIST (OR DESIGNEE) TO CONDUCT SUCH TESTING; THAT THE INSTRUMENT WAS CERTIFIED AS ACCURATE WITH THE PAST 3 MONTHS; AND THAT THE TEST RESULTS ARE ACCURATE.

More recent test strips in both DC and Greenbelt omit this certification.
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This week is the National College for DUI Defense‘s summer session in Cambridge, Massachusetts. We stay at the Charles Hotel and have three days of lectures and break out sessions at Harvard Law School. (We are not affiliated with Harvard Law School but we rent some of their classrooms which are perfectly situated for our program).

This year we have some excellent speakers and break outs. Yesterday we had lectures titled First Person Opening by Francisco Duarte, opening statement demonstrations by Virginia L. Landry and Andrew Mishlove, Uncertainty & Science by Ted Vosk, Accident Reconstruction/Reaction Time by Steve Rickard, and Your Expert: How to Direct and Protect by Evan M. Levow & Thomas E. Workman, Jr. We also had Opening Statement break outs where students were able to practice opening statements in a small class setting at get critiqued by instructors while being videotaped. I am one of the instructors.

Today we will have Cross Examination Techniques by Roger Dodd. Roger Dodd wrote the book on cross-examination and he was a featured speaker in Maryland at the Maryland Criminal Defense Attorneys’ Association program titled the 8th Annual Advanced DUI Defense Seminar in 2010. Today we will also have demonstrations of direct questioning by William K. Kirk, cross-examination by Michael M. Hawkinsand Donald J. Ramsell, Jury Selection by Doug Murphy. We will also have cross-examination break outs.
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