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1. My driving was fine, can the officer pull me over?

He did pull you over! The officer needs an articulable reasonable suspicion to believe you committed, were committing, or were about to commit, a crime. If the judge finds the officer did not have a basis to make the stop, that may be a defense in court. It is not a defense at Motor Vehicle Administration (MVA) hearings unless it can be shown that the officer was acting in bad faith.

2. What should I say if I'm stopped by a police officer and he asks me if I've been drinking?

You are not required to answer potentially incriminating questions. A polite "I would like to speak with an attorney before I answer any questions" is a good reply.

3. What is the purpose of the follow the penlight with the eyes test?

This is the horizontal gaze nystagmus (HGN) test. The officers are trained to detect the involuntary jerking of the eye, which may, among other causes, by caused by consumption of alcohol. If officers detect three clues in each eye, a lack of smooth pursuit, nystagmus at maximum deviation, and nystagmus prior to 45 degrees, they are trained to testify that it is likely the person was above a .08 body alcohol content (BAC). In Maryland, the legal effect of this test has pretty much been neutralized by two appellate decisions holding that the court can only accept the test to show the defendant had consumed alcohol.

4. I thought I did well on the field tests, why was I arrested?

If you really did do well on the field tests, this may be a defense at trial. In many cases, people misunderstand the directions or do not know what the officer is looking for. The field tests most commonly administered by officers are approved by the National Highway Traffic Safety Administration (NHTSA) for the investigation of drunk driving cases.

On the follow the penlight with the eyes test, the officer is looking for an involuntary jerking of the eyes. You cannot feel this.

On the one leg stand test, the officer is looking for putting the foot down before 30-1000, hopping, swaying, and raising the arms more than six inches.

On the walk and turn test, the officer is looking to see whether the person started before the instructions were complete, was unable to stand with one foot in front of the other while being instructed, failed to touch heel to toe on every step, failed to stay on the line, stopped walking, raised arms more than 6 inches, took the wrong number of steps, or turned improperly.

5. Can I elect a blood test instead of a breath test?

In Maryland, the driver has no choice as to the type of test to be taken. The test is the test of breath unless the driver is injured and taken to a hospital, is unconscious or incapable of refusing the test, or if the equipment for conducting a breath test is not available. Under those circumstances, the officer may direct medical personnel to withdraw a blood sample.

6. The officer never read me my rights, what can we do about it?

You probably were advised of your right to take or refuse a chemical test for alcohol and the penalties for failing or refusing the breath test. You are probably asking about a 5th Amendment "Miranda" warning about the right to remain silent and to have the assistance of a lawyer. Often, in drunk driving cases, they do not give that advice. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest.

7. Why did I receive more than one ticket charging me with drunk driving?

Maryland has five different offenses that fall within the generic term - drunk driving: driving while under the influence of alcohol because of substantial impairment of normal coordination, driving under the influence of alcohol per se because of a test result of .08 or more, driving while impaired by alcohol, driving while impaired by drugs, or drugs and alcohol, and driving while impaired by controlled dangerous substances. The pre-printed citations the officer carries to write tickets for these offenses require the officer to write separate tickets for each offense.

8. What is a PBJ?

In Maryland, if a person has not been convicted of drunk driving within the previous ten years, the person is eligible for probation before judgment, informally called PBJ. A PBJ is exactly what it says, after the court finds the person guilty, the person is placed on probation before getting a judgment (or conviction) against them. If the probation is completed without any violations of probation, the person does not get the conviction, points are not assessed against the person, and the guilty finding does not show on the person's complete driving record. However, the PBJ does appear on a separate PBJ driving record, which is only available to the person, his or her lawyer, the courts, the prosecutors, and the police. So if the person receiving PBJ gets arrested for drunk driving a second time, the authorities will know about the PBJ. Also, although many lawyers will say that a PBJ is a good disposition, and it often is, A DUI ARREST THAT RESULTS IN PBJ CAN NOT BE EXPUNGED.

9. Why should I take classes before I go to court if I am presumed innocent?

Yes, you are presumed innocent. But if after trial, the judge or jury finds you guilty, the sentencing proceeding follows, usually immediately. If you want the judge to give you a first offender break of PBJ or not impose a jail sentence if you are a subsequent offender, it is wise to do something before you get to court to convince the judge to impose the sentence you want.

10. Are there any defenses to drunk driving?

Yes. There are defenses to drunk driving.


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