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20 years ago it was not uncommon to for a person convicted of automobile manslaughter to avoid going to jail entirely. Sentences in cases we have handled have ranged from zero to 18 months.  This week the Washington Post reported that a woman was sentenced to serve 20 years for automobile manslaughter for a drunk driving accident that resulted in 2 deaths.

Serrette sentenced Mate to 20 years in prison — more than sentencing guidelines called for and a year less than the maximum allowed by law. The judge acknowledged that Mate had been sexually abused as a child and suffered from alcoholism.

But Serrette stressed that Mate had twice before been convicted of driving while intoxicated and shouldn’t have been behind the wheel that night because her license had been suspended.

“You had repeated wake-up calls that you ignored,” Serrette told Mate. Her actions had destroyed three families: those of the victims and her own, the judge said.

This sentence exemplifies a trend to punish drunk driving and bad driving more harshly across the board and illustrates the importance of getting the best legal representation one can afford. In a growing number of states including California, Alaska, New York and MIssouri, fatal drunk driving accidents are now prosecuted as murder.  A Phoenix man received a 20 year sentence for his 6th and 7th felony DUI offenses – no one was killed or hurt.  A Denver woman received 15 years for a fatal drunk driving accident last year. A Waco man received a life sentence for his 9th DUI since 1984.
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This week a jury found Casey Anthony not guilty of murder of her daughter Caylee. It was the right verdict. The prosecution failed to prove the cause of death, when Caylee died, how she died. The jury could not say whether Caylee died accidentally or was murdered. The jury could not find that an adult was responsible for Caylee’s death, or if an adult was responsible, who was responsible. At best, they could find that it was possible that Caylee was murdered by Casey. In our system of justice, the jury must find guilt unanimously and beyond a reasonable doubt. The evidence didn’t support a guilty verdict in the Casey Anthony case. The jury got it exactly right.

Alan Dershowitz wrote an excellent piece on this in the Wall Street Journal. He talks about the concept in our law that as a society we have made a value judgment that it is better to let 10 guilty persons go free than it is to convict one innocent person. This is one of my favorite legal quotes:

Indeed, concern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system. That concern is reflected, for example, in the ‘fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.’ In re Winship, 397 U.S. 358, 372, 90 S.Ct. 1068, 1077, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). See also T. Starkie, Evidence 756 (1824) (‘The maxim of the law is … that it is better that ninety-nine … offenders should escape, than that one innocent man should be condemned’).

It is from an opinion by Justice Stevens in Schlup v. Delo, 513 U.S. 298, 325 (1995), and can be traced back, as it was in Dershowitz’s article, to the biblical story of Abraham arguing with God that Sodom should not be destroyed if ten innocent people would be condemned.

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Last week I wrote about the decision of the Supreme Court in Bullcoming v. New Mexico. Everyone who participated (I helped to author the amicus brief filed by the National Association of Criminal Defense Lawyers – NACDL) was thrilled. The Supreme Court held that a surrogate chemist could not testify to a blood alcohol reading when he did not supervise or observe the chemist performing the analysis without violating the Sixth Amendment’s Confrontation Clause. This outcome was in doubt due to the replacement of two of the five justices in the majority in Melendez-Diaz v. Massachusetts, Justices Stevens and Souter. They were replaced by Justices Sotomayor and Kagan. Melendez-Diaz held that the chemist had to actually come to court and that a report would not suffice for confrontation purposes.

Melendez-Diaz was a 5-4 decision. The opinion, written by Justice Scalia, was joined by Justices Stevens, Souter, Thomas, and Ginsburg. The dissenters were Justices Kennedy, Breyer, Roberts and Alito. After Melendez-Diaz was decided, on June 25, 2009, the dissenters did not waste any time trying to get it overruled, perhaps to see if they could garner the vote of the justice who would replace Justice Souter, Justice Sotomayor. On the same day as the decision in Melendez-Diaz, the Supreme Court granted certiorari in Briscoe v. Virginia. Unfortunately for the dissenters, Briscoe, which challenged Virginia’s permutation of a notice and demand statute, and required the defense to call the opposing witness in its case, turned out to be a dud. On January 25, 2010, the Supreme Court followed Melendez-Diaz and issue a per curiam reversal in Briscoe. Justice Sotomayor had clearly sided with the Melendez-Diaz majority.

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Yesterday, the United States Supreme Court announced its decision in Bullcoming v. New Mexico, reversing the New Mexico Supreme Court’s decision allowing the state to introduce a blood alcohol result through the testimony of a chemist who did not conduct the test. The case was argued and won by Jeffrey Fisher of Stanford Law School. I was privileged to have participated, along with Justin McShane, Ron Moore, Barbara Bergman, Molly Schmidt-Nowara and Alexandra Smith in writing an amicus brief on the winning side for the National College for DUI Defense, the National Association of Criminal Defense Lawyers, and the New Mexico Criminal Defense Lawyers Association. Our brief can be characterized as a kind of “Gas Chromatography for Dummies,” so that non-scientists could understand the complexity of the process, and why it is necessary to be able to question the actual chemist in order to be able to discover potential mistakes in the process or false statements. Footnote 1 of the court’s opinion shows that the five member majority got the message.

Bullcoming should not have any effect on state court proceedings in Maryland. Maryland has what is called a “notice and demand” statute that allows the prosecution to file a notice of a chemist’s report and phlebotomist’s testimony and requires the defense to file a demand for the presence of the chemist or analyst and of the qualified medical person who withdrew the blood. In state court, most lawyers routinely file such demands in blood test cases and unless the chemist comes to court the State cannot use the test result. By requiring the actual chemist and phlebotomist to come to court for the State to use a blood test result, Bullcoming changes nothing in Maryland state court because in almost all cases the actual chemist and phlebotomist is already required to come to court. However, in federal court, there is no comparable notice and demand statute and the government usually tries to introduce the blood test through a lab supervisor.
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There are two kinds of federal DUIs depending upon where the arrest was made.

If the arrest was made on property under the jurisdiction of the National Park Service, such as the Baltimore-Washington Parkway, Suitland Parkway, Canal Road, or elsewhere, the charges are made under the Code of Federal Regulations. The maximum penalties are 6 months and/or a $5,000 fine. There is no right to refuse the breath or blood test, and people who refuse a breath test are normally taken to a hospital where blood is withdrawn. Refusal is also a crime, carrying the same potential penalty. Trials are usually before a United States Magistrate judge and there is no right to a jury trial. There is no PBJ or probation before judgment available, so if the judge finds the person guilty it results in a conviction. However, no points appear on the MVA driving record. There is also usually no suspension of driving privileges before or after court, at least on a first offense. Convictions may be appealed, but there is no new trial on appeal as there is in state court.

The second kind of federal DUI occurs on property not under the jurisdiction of the National Park Service such as Andrews Air Force Base, Ft. Meade, the National Institutes of Health, and other locations. Here a federal law called the Assimilative Crimes Act applies. Under the Assimilative Crimes Act, if there is no federal criminal law on conduct made criminal under the law of the state in which the federal property is located, the state’s criminal laws apply. Since there is no federal DUI law, Maryland DUI laws apply on federal property located in Maryland which is not under the jurisdiction of the National Park Service. Under this scheme, the state crimes and penalties of DUI and DWI apply, but federal procedures are used in federal court. Defendants do have a right to a jury trial. Breath test failures and refusals are referred to the MVA as in state cases, but whether the MVA can legally suspend the drivers license for a violation on these federal properties is debatable. Since the penalties are the same as in state court, a defendant can get a PBJ on a first offense. If there is a conviction (no PBJ), points do appear on the driving record and the MVA will seek a suspension or revocation of the drivers license.

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In Maryland, if the defendant pleads guilty or is found guilty after a trial, sentencing usually takes place immediately. The judge has already heard the facts of the case. At this point the judge wants to hear something about the defendant, including but not limited to: age; educational background; family situation; employment; and most importantly, whether the defendant has been assessed by a state certified alcohol counselor to determine whether the defendant has a drinking problem and has begun or completed the recommended program.

The assessment is made using standard screening tests, including the Michigan Alcohol Screening Test, also known as the “MAST” test, and others. On a first offense, offenders assessed as a “social drinker” are normally recommended to complete a 12-hour class. This is usually spread out over six weeks, with six two-hour evening sessions. Offenders assessed as a problem drinker are usually recommended to complete a 26 week program.

If the defendant thinks it is unlikely he or she will want to take an appeal from the guilty finding and is requesting probation before judgment, also known as “PBJ,” then the defendant should probably make a short statement of remorse, and indicate the steps being taken to ensure that something like this will never happen again.
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Defending drivers with a CDL (commercial driver’s license) who are charged with drunk driving is tricky. Each step of the process involves a risk that the CDL will either be disqualified pursuant to state and federal law, or suspended pursuant to regulations of the Maryland Motor Vehicle Administration (MVA). Under Code of Maryland Regulations (COMAR) 11.11.12.07 the MVA may not issue a CDL if the driver’s license is suspended. Unfortunately, the MVA interprets a case called Embrey v. MVA to hold that any kind of restricted license is the equivalent of a suspension. Under this interpretation, a driver with a work restriction or an ignition interlock restriction may not have a CDL.

The first hurdle through which the CDL driver must pass is the initial MVA hearing for a breath or blood test failure or refusal. If the driver took a test with a result of .08 or higher but less than .15, an effort must be made to persuade the Administrative Law Judge (ALJ) to either take no action or to issue a reprimand, as opposed to a 45 day work permit. If a work permit is issued it will be without the CDL. If the driver failed with a result of .15 or more, or refused a test, an effort must be made for no action. In either event, the ALJ would only have discretion to impose an ignition interlock restriction for one year. Again, this would be without CDL. Additionally, a refusal carries a separate one year disqualification of the CDL.
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Recently, the Maryland Court of Appeals considered the case of Najafi v. Motor Vehicle Administration (MVA). After Najafi had been arrested for DUI, he asked to be able to make a private call to his lawyer to help him to decide whether to submit to a breath test. He requested that he be given privacy to make the call, but the officer said he couldn’t allow that. He tried to call his lawyer but only got an answering machine. He never submitted to a breath test and his license was suspended at an MVA hearing.

In the Court of Appeals he argued that because the officer said he could not have a private phone call he was denied his constitutional right to contact a lawyer and therefore his license should not have been suspended. The MVA argued that while a person detained on suspicion of drunk driving does have the right to contact a lawyer to decide whether to submit to a breath test, they argued that the denial of that right can only be raised as a defense in court, not at an MVA hearing. The Court of Appeals held that since the officer allowed him to call his lawyer, it was unnecessary to reach that issue. The Court also held that there was sufficient evidence for the administrative law judge (ALJ) to conclude Najafi had refused the test.

Although the Court did not reach the issue of whether denial of counsel could be raised at an MVA hearing, it intimated in dicta that it could not. An “obiter dictum” is a “judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive)” according to Black’s Law Dictionary. For a number of reasons, I believe this dictum is mistaken, and continue to argue at MVA hearings that denial of counsel is a valid defense.
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What I have tried to do in the following blog is touch on the basics of preparing to represent a person charged with a DUI. It is not possible in this space to give more than a basic outline of what is required. What follows therefore, should be understood to just represent the tip of the iceberg. More detailed information can be found online, in relevant treatises, and at CLE (continuing legal education) seminars.

The lawyer’s preparation for a DUI begins with the first phone call or email by the prospective client. Counsel must find out the arrest date in order to advise the client to request a hearing with the Office of Administrative Hearings before the 30 day deadline expires if the client failed or refused a breath or blood test for alcohol or drugs. The client must be reminded to send in the hearing fee of $125 payable to the Maryland State Treasurer. I recommend the hearing request be mailed certified return receipt requested in order to protect against the hearing request being lost.

The initial consultation involves obtaining as much information as possible about the client and the case with the goal of obtaining the best possible result for the client in court and at the Maryland Motor Vehicle Administration (MVA). The lawyer must get from the client a brief life history and background, including education, military service, immigration status, marital and parental status, employment, need for a driver’s license, affect of license suspension or jail or probation on the client, prior record, prior efforts at alcohol education or treatment, a complete medical history, and a detailed recollection of the events leading up to and including the arrest and submission to any test, including drinking history. The lawyer must obtain and review all documents received by the client. I like to put the officer’s dates and times into a timeline in order to better understand the officer’s claimed sequence of events.
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This is my first blog on DUI defense and related matters. So if you are reading this, welcome! I will try to blog every week. In the coming weeks and months I will be discussing issues of importance to DUI defendants and defense lawyers since a major part of what we do is translate the legal system to our clients, their family and friends to make what can be a stressful and confusing experience understandable.

Today I want to talk about whether to go to trial or plead guilty in state court. Every day I go to court I see defendants plead guilty to drunk driving charges who might be able to win their cases. Some lawyers advise their clients to plead guilty when they haven’t even checked to see if the officer is present in court. Don’t get me wrong. If a person accused of drunk driving is truly remorseful, pleading guilty can be a cathartic experience. But putting the State to its proof is not diametrically opposed to remorse. It is the way the system was designed to work. If the State cannot prove my client is guilty then he or she is not guilty. If the State wins, we can show plenty of remorse then.

The question I ask before advising a client is whether the client is better going to trial or pleading guilty. Another way of asking this is, is there a trial tax or penalty? Well, when a person is accused of having committed a serious felony and is likely to be convicted at trial, and the accepting the plea offer means the client will be in jail for a significantly shorter period of time, then taking the plea makes sense. But in the typical DUI case, the State offers the exact same thing or worse than would happen if the defendant is found guilty. So what is the benefit? At least with a trial, the defendant might not be found guilty.
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