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1 Free Legal Consumer Guide Series Brought To You By Meeting All Your Legal Needs For 50 Years

2 2 What You Need To Know About DWI & DUI Charges HOW TO USE THIS GUIDE If you read this guide, you will discover what you need to know about your legal issue, and learn about your options. Then you will be armed with information so you can make an informed, intelligent decision about what to do. What you should do now: Read this Free Legal Consumer Guide. You should be informed before you talk to an attorney. Call an attorney. At least get an initial consultation to discuss the unique facts of your situation. The best solutions come from applying the law to the facts of your case. No book can do that. Most attorneys offer a 1 hour consultation to discuss your case. You have many good choices in Southern Maryland. Of course, we hope you choose us! We want to be your family s attorney. Contact us today. Disclaimer: (1) Using this guide will not make you a lawyer, and is no substitute for hiring one. Do not represent yourself in any serious legal matter. (2) This guide gives general information and advice. Effective legal advice requires understanding the unique facts of your situation, and applying the law to those facts. (3) Using this guide does not create an attorney-client relationship with our firm. The only way to do that is by meeting with us. (4) The legal advice and information in this guide applies only to Maryland.

3 3 What You Need To Know About DWI & DUI Charges AUTHOR PAGE David Hebb has been practicing law since 2006, all of that time here with us. He also served as law clerk to a local Judge before he started with us. He concentrates in criminal law, civil litigation and bankruptcy. See his full biography at /a bout-us/david-hebb Andrews, Bongar, Gormley & Clagett is one of the oldest and largest law firms in Southern Maryland serving clients for 50 years. We have more attorneys and a larger staff than other local law firms. That means we can help you and your family in a wider variety of legal matters. Each attorney concentrates in a few key areas so you get the expertise you need, and the personal service you want. Copyright 2013

4 4 What You Need To Know About DWI & DUI Charges TABLE OF CONTENTS YOUR CRIMINAL COURT CASE.. 6 Blood Alcohol Test Possible Penalties 8 Resolving Your Case Trial.. 9 Resolving Your Case Plea Deal. 10 Resolving Your Case Stet Docket 12 How An Attorney Can help. 12 KEEPING YOUR DRIVERS LICENSE Preliminary Breath Test. 15 Suspension of Your License. 17 Maintaining Your License. 18 Points. 22 Restricted License.. 23 Ignition Interlock Program.. 24 How An Attorney Can Help.. 26

5 5 What You Need To Know About DWI & DUI Charges DUI AND DWI WHAT YOU NEED TO KNOW Being charged with a DUI (Driving Under the Influence) or a DWI (Driving While Intoxicated) is very serious. You face fines, points, a criminal record, losing your license, losing your job, and even possible jail time. What should you do now to start getting yourself out of this situation? After you read this guide, you need to call a lawyer to represent you. This is not a do it yourself job. No one should attempt to handle a charge for Driving Under the Influence (DUI) or Driving While Intoxicated (DWI) on their own. You can contact us anytime if you need a lawyer for your Maryland DUI or DWI case, or you can hire someone else, but just be sure to hire a lawyer to help you! The fee you will pay a lawyer is small compared to the costs of a poorly handled DUI or DWI citation. A poorly handled drunk driving defense could result in large fines and unnecessary jail time. It could leave you with a criminal record that may have been avoided. Don t make that mistake.

6 6 What You Need To Know About DWI & DUI Charges The first part of this Free Legal Consumer Guide explains the criminal process that will occur in Court. But that is only half the battle. The second part of this guide explains the process to save your driver s license at the Motor Vehicle Administration. You have very tight time limits to request a hearing with the MVA and you should do so immediately. YOUR CRIMINAL COURT CASE Anyone charged in Maryland with Driving Under the Influence of alcohol (DUI) or Driving While Intoxicated (DWI) will be required to appear in court, in person. Driving under the influence of alcohol and driving while impaired are misdemeanor crimes. If you are convicted of either one, you will have a permanent record. Driving Under the Influence (DUI) is the more serious of the two offenses. In this offense, the state is required to prove that the alcohol that the person has consumed has substantially impaired the person s normal coordination. By contrast, Driving While Intoxicated (DWI) requires that the alcohol the person has consumed has impaired normal coordination to some extent.

7 7 What You Need To Know About DWI & DUI Charges Whether you are subject to a DUI or DWI depends on the amount of alcohol in your blood. Everyone is familiar with the blood alcohol test. Here is what it means in a DUI or DWI case: Over 0.10%: If the court or jury determines that your blood alcohol exceeded 0.10% blood alcohol by weight at the time of testing, you are presumed intoxicated and driving under the influence of alcohol (DUI). 0.07% through 0.09%: If the court or jury determines that your blood alcohol falls within this range, it can consider the blood-alcohol level in determining whether you were intoxicated. The judge or jury may, but is not required to, find the defendant was driving under the influence of alcohol (DUI). Greater than 0.05% but Less Than 0.07%: If the court or jury determines that your alcohol level falls within this range, it may consider the test along with all other evidence in determining whether you were driving while intoxicated (DWI) or driving under the influence (DUI) of alcohol. However, the test result alone is not enough to permit the court or jury to determine whether you were intoxicated (DWI) or under the influence (DUI) of alcohol. There has to be other evidence.

8 8 What You Need To Know About DWI & DUI Charges.05 or Less Blood Alcohol by Weight. If the court or jury determines that a the time of testing, the defendant s blood alcohol level was.05% or less, by weight, it must assume that the defendant was not intoxicated or under the influence. The State can only secure a conviction if it presents evidence which overcomes this assumption and that the court or jury finds beyond a reasonable doubt that the defendant was driving under the influence or while intoxicated. The possible penalties for alcohol related offenses range from a $500 fine and two (2) months in jail for Driving While Intoxicated (DWI), to as much as $4,000 in fines and four (4) years in jail for Driving Under the Influence (DUI), or for multiple time offenders. If you are charged with Driving While Intoxicated (DWI) or Driving Under the Influence (DUI) or another alcohol related traffic offense in Maryland, you should contact an attorney who is familiar with the ins-and-outs of the traffic laws, and who is familiar with the state s attorney s office in the jurisdiction which you have been charged.

9 9 What You Need To Know About DWI & DUI Charges RESOLVING YOUR CASE There are three basic ways in which most DUI, DWI, and other serious traffic offenses in Maryland are resolved: Trial: When you are charged with any serious traffic offense in Maryland, including a DUI or DWI, you have the right to a trial in front of a Judge or Jury. The state bears the burden of proof on each element of the offense for which you have been charged. In most traffic violations, there are several things that the state has to prove in order to secure a conviction. If they cannot prove any one of them, they may fail to get a conviction, and could even decide not to prosecute the case. Even if the state can prove all of their elements, you may have a valid legal defense to the charges. An attorney can tell you if your defense is a good one. You will get a chance to present that defense and let the Judge or Jury determine the facts of your particular case. The Judge or Jury will then render a verdict for or against you.

10 10 What You Need To Know About DWI & DUI Charges If you hire us to represent you for your Maryland DWI or DUI case, we will evaluate the unique facts of your case, conduct pretrial discovery where allowed, and evaluate the evidence in each individual case. Where there is a likelihood of securing an acquittal, we will discuss the trial option with you and help you to reach a decision on whether to go to trial. Plea Agreement: This is the most common way most serious traffic offenses in Maryland, including DUI and DWI, are resolved. When the state and the defendant enter into a plea agreement, the state generally dismisses some or all of the most serious offenses with which the defendant has been charged. In exchange, the defendant makes an admission of guilt to a less serious charge. The state offers the plea because it eliminates the need to have a trial, and the plea benefits the defendant because it reduces the degree of punishment to which the defendant is exposed. Often, the possibility of jail can be eliminated through a plea agreement, depending on the severity of the charge and the defendant s previous record.

11 11 What You Need To Know About DWI & DUI Charges The objective of a plea agreement is sometimes to obtain a probation before judgment if possible. A probation before judgment occurs when the court puts the defendant on probation without the necessity of a trial or a finding of guilt. It is important to note that under Maryland law, you may only receive one probation before judgment in any given ten year period for an alcohol-related driving offense. If you receive a probation before judgment in Maryland, you have not been convicted of any crime. You can honestly state on a job application that you have no criminal record, even if you have received a probation before judgment. A probation before judgment is a very favorable outcome for any Maryland criminal case. Generally, the judge will condition a probation before judgment on several things, including community service or paying a fine. They essentially make you buy the probation before judgment by performing some sort of punishment. But this is almost always a good bargain if you escape jail and/or a permanent criminal record related to a DUI or DWI.

12 12 What You Need To Know About DWI & DUI Charges Stet Docket: This is another common way in which serious traffic offenses can be resolved. It is not commonly used for DUI or DWI cases, but sometimes used for other serious traffic matters. A case may be placed on the Stet Docket with the consent of the defendant. The Stet Docket is simply a fancy name for making the case inactive. By placing the case on the stet docket, the case is essentially treated like an indefinite postponement. You do not have a conviction on your record and you can usually get the charges expunged three years after they are placed on the stet docket. Of course, you have to keep a clean record for those three years. The Stet Docket is always hanging over your head if you get in trouble again. The State can bring back the charges at any time in those three years. HOW AN ATTORNEY CAN HELP Free Consultation: All consultations for all Maryland criminal matters, including Driving Under the Influence (DUI) and Driving While Intoxicated (DWI), are free of charge. You have nothing to lose by coming in and discussing your matter with one of our attorneys. At the very least, you need to find out your rights, and how the particular facts of your individual case affect the possible outcomes.

13 13 What You Need To Know About DWI & DUI Charges Experience: We are familiar with what local judges look to in resolving traffic offenses and can mitigate sentencing and collateral consequences of a DUI or DWI. Local State s Attorneys and Assistant State s Attorneys know our reputation well, and this has allowed us to secure plea agreements that reduce and sometime eliminate the risk and length of jail that our clients are facing, reduce and sometimes eliminate points against their motor vehicle record and reduce the fines imposed by the State. When you hire us to represent you in a Maryland DWI or DUI case, we will meet with you and have a thorough discussion regarding the facts and circumstances of your particular case. We will gather information to make a determination as to whether you have been properly charged with a crime and whether the evidence supports those charges. We will then conduct discovery in which we obtain information from the State s Attorney to find out what evidence will be offered at trial and whether there is exculpatory evidence (evidence that helps your case) that is helpful to you which can be presented at trial.

14 14 What You Need To Know About DWI & DUI Charges After reviewing the evidence, we can make an assessment of your Driving Under the Influence (DUI) or Driving While Intoxicated (DWI) case. We will then engage in negotiations with the State s Attorney and seek a reduction in the charges which you are facing. At the same time, we look for possible defects in the state s case and help you to make a decision as to whether you should have a trial or accept a plea agreement. If you decide to accept a plea agreement, we negotiate directly with the Office of the State s Attorney to seek a reduction in charges and to obtain the best possible deal for you. By engaging in negotiation with the State s Attorney, we are almost always able to obtain a significant reduction in the severity of the charges which you are facing. If you hire us to represent you on your Maryland DUI or DWI or other serious traffic case, we will work diligently to obtain the best possible result for your case, whether that requires a plea agreement, a trial, or reaching an agreement to have the charges placed on the stet docket.

15 15 What You Need To Know About DWI & DUI Charges DUI AND DWI KEEPING YOUR DRIVER S LICENSE Did you know it is easy to lose your driver s license after a DUI or DWI charge unless you take quick action? In Southern Maryland, including Waldorf and Lexington Park, you can t do anything without driving! How would you make it if you couldn t legally drive to work, or pick up the kids, or even go to the grocery store? Could you get by? What should you do to make sure this doesn t happen? Read this guide, and then call a lawyer. This is NOT a do it yourself job. Get an attorney to represent you or you could lose your license to drive. THE PRELIMINARY BREATH TEST (PBT) If you are stopped for a Driving While Impaired (DWI) or Driving Under the Influence (DUI) offense, you will likely be asked to submit to a Preliminary Breath Test (PBT). You are not obligated to take the PBT and it is not admissible in evidence in any court action. If you refuse to take the test, however, your Maryland driver s license will be revoked 120 days for a first offense, and for one year for a subsequent offense.

16 16 What You Need To Know About DWI & DUI Charges The results of the PBT are used as a guide for the police officer in deciding whether an arrest should be made, and if so, should it be DWI or DUI. The results of the PBT may be used as evidence by a defendant in a court action. The taking of or refusal to submit to a PBT is not admissible in evidence in any court action. Evidence pertaining to a PBT may not be used in a civil action. Neither the taking or refusal to submit to a PBT will relieve you of the obligation to take the regular blood or breath test. If the results of your PBT are 0.08 or higher, or if you refused to take the PBT, you are entitled to a hearing before the MVA. At the hearing, a Maryland administrative law judge (ALJ) will decide whether the MVA s proposed suspension is appropriate. If you are arrested or ticketed for Driving Under the Influence (DUI) or Driving Under the Influence (DUI) your license will be confiscated by the police officer. You will then be given a 45- day temporary license which functions the same as your regular license, but only for 45 days. You cannot drive on your temporary license after it has expired. Doing so will subject you to the jail-able offense of driving on a suspended license. If you have requested a hearing, however, you may get an extension of your temporary license from the Maryland MVA.

17 17 What You Need To Know About DWI & DUI Charges SUSPENSION OF YOUR DRIVER S LICENSE The Maryland Motor Vehicle Administration has the right to suspend your Maryland driver s license if you are accused of Driving While Intoxicated (DWI) or Driving Under the Influence (DUI). Many people do not know that this is not part of the court process, but is decided in a separate administrative hearing before the Maryland MVA. So when charged in Maryland with Driving While Intoxicated (DWI) or Driving Under the Influence (DUI), you have to go through two separate proceedings to keep your license and stay out of jail. The rules of the administrative hearing are different than those of the court. The length of your suspension depends on the amount of alcohol you had in your body when you were arrested, as measured by the preliminary breath test. If your test result shows a blood alcohol content of at least 0.08 but less than 0.15, the suspension will be 45 days for a first offense and 90 days for a second or subsequent offense. If your test result is a blood alcohol content of 0.15 or more, the suspension will be 90 days for a first offense and 180 days for a second or subsequent offense.

18 18 What You Need To Know About DWI & DUI Charges If you refuse to submit to the test, the suspension will be 120 days for a first offense and one (1) year for a second or subsequent offense. These suspensions are separate and apart from any suspension or revocation that may result from the conviction in court of a Driving While Intoxicated (DWI) or Driving Under the Influence (DUI) criminal charge. Keep in mind these are two totally separate proceedings. MAINTAINING YOUR DRIVERS LICENSE Before you have to face a judge or jury on the charges that arise out of a traffic stop for drunk driving, you will have to request a hearing before the Motor Vehicle Administration or you will face the automatic loss of your Maryland drivers license. You have thirty (30) days to request a hearing, but if you do not make your request within ten (10) days, your driver s license may be suspended prior to your hearing, therefore you want to make certain that your hearing request is made within ten (10) days from the date of your arrest. This is a very tight time deadline and you should act immediately or you may lose your license.

19 19 What You Need To Know About DWI & DUI Charges Your request must be made, in writing, through the headquarters of the MVA in Hunt Valley, Maryland. You must also enclose a filing fee. There is a form that the officer will give you at the time of your arrest which will enable you to get a hearing. It is on the reverse side of the Officer s Certification and Order of Suspension. You do not need to wait until you meet with an attorney to request the hearing. You can do it yourself and should do so if there is any chance you will miss that 10 day deadline. It is better to hire an attorney immediately and have the attorney do it. But if you cannot, then do it yourself. As of this writing, the address to which the form is mailed is: Office of Administrative Hearings Motor Vehicle Administration Gilroy Road Hunt Valley, Maryland Check the Maryland MVA website to be sure that is still the right address. You must send a check along with your request. There is a $125 administrative fee which must be paid to the MVA at the time of your request. Make your check payable to Maryland State Treasurer. If you fail to include the fee, your hearing request will be denied.

20 20 What You Need To Know About DWI & DUI Charges If a hearing is requested within 10 days, and your Maryland driver s license was surrendered, a hearing will be scheduled within 30 days of the receipt of your request and your license will not be suspended before you appear for this scheduled hearing. If a hearing was requested between 11 and 30 days of the issuance of the Order of Suspension, a hearing will be scheduled within 45 days of the receipt of your request but the suspension still takes effect on the 46th day from the order of suspension. If you wish to be represented by an attorney, you should contact one immediately. But you can still request your hearing yourself. Do not delay your hearing request. If you request a hearing before the MVA, your case will be heard by an Administrative Law Judge (ALJ). The ALJ is an employee of the State of Maryland, but is not employed by the MVA. The ALJ acts as a neutral fact finder in your Driving While Intoxicated (DWI) or Driving Under the Influence (DUI) charge administrative hearing.

21 21 What You Need To Know About DWI & DUI Charges The MVA holds hearings at various locations throughout the state. Where your hearing will be held depends on where you live. For the vast majority of our clients, hearings are at the Waldorf MVA full service branch. If you are subject to a hearing, you will receive a notice from the MVA with the date, time and location of your hearing. Waldorf-Full Service St. Charles Business Park 11 Industrial Park Drive Waldorf, MD The MVA hearing is similar to going to court. Instead of making a decision on fines and jail time, however, the ALJ will be deciding whether you to get to keep your driving privileges, and under what conditions you will be permitted to drive. In Maryland, the MVA hearing is a records hearing. The officer is not typically present to testify in person. The licensee, however, may provide testimony if desired. At the MVA hearing, the ALJ will take testimony and receive evidence and make decisions regarding the facts and the law in your particular case. There are set procedures that govern the conduct of these hearings. A Maryland DUI or DWI lawyer will be familiar with the procedures and regulations and can assist you during the hearing.

22 22 What You Need To Know About DWI & DUI Charges We really cannot advise anyone to try and handle their own MVA hearing after a DUI or DWI charge in Maryland. We are not just saying that to get more business. There are serious consequences to mishandling this hearing, and the outcome is totally based on the unique facts and circumstances of your particular case. Depending on the facts and circumstances of your individual case, the MVA hearing can result in the loss of your driving privileges, a work-restricted license, or participation in the ignition interlock program. POINTS FOR SERIOUS TRAFFIC OFFENSES In Maryland, all serious traffic offenses are assessed points by the MVA. A Driving Under the Influence (DUI) conviction will result in twelve points being assessed against your Maryland drivers license. A Driving While Impaired (DWI) conviction carries 8 points. Other violations carry varying amounts of points. Points stay on your driving record for three years, but the MVA will only consider points obtained in the previous two years when making a determination as to whether to suspend or revoke your license. Points on your record date from the violation, not the date you go to court.

23 23 What You Need To Know About DWI & DUI Charges If you receive more than five points on your Maryland driving record, the MVA will require you to enroll in a driver improvement program. If you receive more than eight points, your license will be suspended and if you receive more than twelve points, the MVA will revoke your license. Our attorneys can assist you in taking steps that help mitigate the damage to your Maryland driving record and help you to maintain your license. All moving violations carry points. The number of points will depend on the severity of the violation. Our attorneys can sometimes help you to avoid points if you ve been charged with a moving violation by obtaining a probation before judgment in court. RESTRICTED LICENSE At your MVA hearing, the ALJ may grant you a restricted license. The restricted license is just what it sounds like. It allows you to drive, but with certain restrictions. For example, the judge may allow you to drive only to and from work or only to and from an alcohol treatment program.

24 24 What You Need To Know About DWI & DUI Charges IGNITION INTERLOCK PROGRAM If you participate in the Maryland ignition interlock program, you will have a special device installed in your vehicle that you must blow into in prior to starting the vehicle. If your breath alcohol level exceeds the accepted level set on the device, your vehicle will not start. Participants in the Ignition Interlock Program are responsible for all costs associated with program participation, including installation and monthly maintenance costs and the cost of obtaining a restricted driver s license. Once you have the ignition interlock device installed and you obtain the restricted driver s license, you will be expected to return every 30 days to the Interlock Service Provider who installed the device. The provider will collect information captured by the device and forward that information to the MVA. The provider will also make sure the device is operating correctly.

25 25 What You Need To Know About DWI & DUI Charges Typically, the provider prepares a report for the MVA each month that includes information about: You the driver, your vehicle and other program information Any instances where you had a high blood alcohol concentration (BAC) Any instances where you tried to start the vehicle without taking the test Any instances where you failed the rolling retest or refused to take it Any bypass of the device, which is if you tampered with or disconnected the device The number of times your vehicle was started and stopped The distance traveled by your vehicle LOSS OF DRIVING PRIVILEGES If you accrue 12 points on your license, Maryland will revoke your driver s license for one year. It may be reinstated six months after the revocation takes place. A DUI conviction is a 12 point offense.

26 26 What You Need To Know About DWI & DUI Charges HOW AN ATTORNEY CAN HELP All consultations for all criminal matters are free of charge. You have nothing to lose by coming in and discussing your matter with one of our attorneys. At the very least, you need to find out your rights and options, and how the particular facts of your individual case affect the possible outcomes. DUI and DWI laws and regulations are a maze. You really do need a guide to get through it. A simple written guide like this won t cut it. You need to hire a professional. You may have defenses available in your MVA hearing that you are not aware of. For instance, the officer may not have put in his report the reason that the traffic stop was initiated. The officer may not have followed proper procedures in advising you about your rights concerning the breath test. He may have disregarded your request to speak with an attorney. Or he could have committed other errors that can keep critical evidence out of your case.

27 27 What You Need To Know About DWI & DUI Charges If you hire us to represent you on your Maryland DUI or DWI or other serious traffic case, we will work diligently to obtain the best possible result for your case at the MVA hearing and in court. Everyone s case is unique. If you have been charged with a DWI, DUI or other serious traffic offense, you should speak to a lawyer as soon as possible after you are stopped. Your actions prior to court can have a big impact on what happens when you go to court. This is one area of law you definitely do not want to try and handle on your own. Call us today for a free consultation. Thank you for reading.

28 28 What You Need To Know About DWI & DUI Charges LOCAL RESOURCES Southern Maryland has a lot of great non-profit organizations that can help you and your family if you are facing a need. These are some we know and trust. Point of Change Jail Ministry: Services to the incarcerated Legal Aid Bureau: legal services without cost United Way of Charles County: has the definitive list of local Human Services Agencies right on their website. Jude House: substance abuse treatment Walden Behavioral Health: substance abuse treatment Lifestyles of Maryland: They pretty much do it all, or can refer you to someone who can. Housing, food, medical, financial, employment, transportation, etc

29 29 What You Need To Know About DWI & DUI Charges THE FREE LEGAL CONSUMER GUIDE SERIES at Everything You Need To Know About Car Accident Cases What You Need to Know About Bankruptcy and Foreclosure What You Need to Know About Divorce and Child Custody What You Need to Know About Workers Compensation What You Need to Know About DUI & DWI How To Handle A Traffic Ticket Why You Need A Will & What To Do About It How to Handle Your Own Small Claims Case GET MORE FREE LEGAL ADVICE Sign up for our free monthly newsletter, with more legal advice, tips on how to keep your family safe, and our insiders commentary on newsworthy legal events like sensational crimes and new laws. Find the sign up form on our home page. You can also see past examples of our newsletters.

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