Offenses

• Jurisdiction: Maryland

III. OFFENSES

A. Offenses that Require Mens Rea

These are serious offenses that carry potential incarceration and sufficient points to generate a suspension or revocation hearing at the MVA. In many cases, prosecutors will agree to allow the defendant to plead guilty to a lesser offense and nolle prosequi the more serious traffic offense. In other cases, prosecutors may insist on a plea to the greater offense in return for an agreement to remain silent, defer to the court, or affirmatively recommend PBJ at sentencing. These offenses, as with many traffic offenses, remain eminently triable.

PRACTICE POINTER

In all of these cases, if the charge involves a condition that can be remedied, such as a suspended license, registration, or registration plates (tags), it should be remedied. Often the prosecutor or judge will be willing to forgive the offense or at least give credit if the defendant remedies the situation. Counsel should advise the client to bring satisfactory proof of such remedy to court.

1. Driving while suspended or revoked

There are generally two types of suspensions. Failure to pay a fine or appear in court on a traffic citation in this or any other jurisdiction results in an administrative suspension of the driver's license or privilege to drive until the driver clears the failure to appear by posting collateral, having a judge strike the bench warrant, or by appearing before the court by arrest or otherwise. Driving while suspended under Transp. § 16-303(h) or (i) for failure to pay a citation or appear in court is a lesser charge which carries a $500 fine and three points at the MVA. Although these are fine only offenses, the driver must still appear in court and may not prepay the fine. In many jurisdictions the § 16-303(h) charge is used as a remedial means of getting drivers to clear their suspensions.

PRACTICE POINTER

If the defendant appears in court having cleared the suspension, many prosecutors will offer or accept a plea of guilty to the ticket that resulted from the initial stop, such as speeding or red light, and nolle prosequi the driving while suspended violation. In those situations, PBJ should be requested on the lesser charge. Where defendants are not given the nolle prosequi option, if convicted, many judges will award probation before judgment.

Driving after more serious suspensions under the balance of Trans. § 16-303 carries 12 points, a $1,000 fine, and/or one year in jail. A driver who is not charged with a violation of § 16-303(h) or (i), who is only suspended as a result of failure to pay a traffic citation, may not be convicted of the more serious suspension charge and probably may not be convicted at all. Under Beckwith v. State,⁴⁸ the state has made an election to proceed with the more serious charge on an all-or-nothing basis.

In State v. McCallum,⁴⁹ the Court of Appeals determined that actual knowledge was an element of driving while suspended. Frequently, drivers lack actual knowledge of a suspension and the MVA record will support the defense by stating things such as "SUSPENSION LETTER MAILED" followed by "RETURNED BY POSTAL AUTHORITY." These cases may often be tried to acquittal. However, where the defendant moved and failed to notify the MVA, the defense may fail. Under Rice v. State,⁵⁰ "deliberate ignorance" or "willful blindness" may satisfy the mens rea requirement.

2. Hit and run

Failure to stop and remain at the scene of an accident can be a serious charge. There are a number of charges that may be filed alleging property damage to attended or unattended property, and charges that allege personal injury. Counsel must carefully review the charges and evaluate what the state must prove. In the case of Comstock v. State,⁵¹ the Court of Special Appeals held that knowledge of both the accident and the personal injury is a necessary element of failing to immediately stop at the scene of a personal injury accident. Therefore, the state must prove that the defendant knew of the property damage or personal injury alleged. Here as well, it is not infrequent for drivers involved in an accident not to know that the driver of a different vehicle was injured.

3. Fleeing and eluding

These charges are filed in situations where the defendant refuses to pull over or tries to avoid being ticketed by police. It carries one year in jail, $1,000 fine, and 12 points at the MVA. The state must prove under Transp. § 20-904 that the defendant willfully failed to respond to an audio or visual signal from the police officer. The Court of Appeals has held that separate convictions for fleeing and eluding by vehicle and by foot should merge for sentencing purposes where both convictions resulted from a continuous pursuit of the defendant.⁵²

4. Driving without insurance

This charge, under Transp. § 17-107, also requires that the defendant knew that there was no insurance on the vehicle he or she was driving. It is virtually impossible to prove this charge because the state must negate the possibility that the defendant has insurance with any licensed carrier in Maryland. In many situations, the insurance has simply lapsed, and the state will be unable to prove the defendant was aware of it. A defendant's confession alone without corroboration is not sufficient evidence of the corpus delicti.⁵³

PRACTICE POINTER

Counsel should almost never recommend or accept a guilty plea for a driving without insurance charge.

B. Driving While Under the Influence of Alcohol

Defending driving while under the influence of alcohol (DUI) and related charges under Transp. § 21-902 is probably the most challenging and potentially rewarding of the traffic offenses. For multiple offenders, the consequences of a conviction can be very burdensome. DUI under § 21-902(a) carries 12 points and potential revocation, one year in jail and/or $1,000 fine for a first offense; two years in jail and/or a $2,000 fine for a second offense; and three years in jail and/or a $3,000 fine for a third offense. Driving while impaired by alcohol (DWI) under § 21-902(b) carries eight points, 60 days in jail and/or a $500 fine for a first offense, one year and/or a $500 fine for a second offense, and three years and/or a $3,000 fine for a third offense. In addition to enhanced penalties for repeat offenses, the State may request enhanced penalties of up to two months in jail where the defendant has refused to submit to a chemical test.⁵⁴ Additionally, there is a mandatory minimum sentence of 5 days in jail for 2 convictions under § 21-902(a) within a 5-year period and 10 days in jail for 3 convictions under § 21-902(a) within a 5-year period. If the defendant is convicted of transporting a minor while driving under the influence or while impaired, the potential penalties are two years in jail and/or a $2000 fine and six months and/or a $1,000 fine, respectively.⁵⁵

A person charged with and convicted of violating § 21-902(h) for a third conviction under any subsection of § 21-902 is guilty of a misdemeanor and subject to a maximum penalty of five years and/or $5,000. A person charged with and convicted of violating § 21-902(h) for a fourth conviction under any subsection of § 21-902 is guilty of a misdemeanor and subject to a maximum penalty of 10 years and/or $10,000.⁵⁶

Counsel must be familiar with numerous constitutional, statutory, and regulatory provisions related to drunk driving, including administrative consequences of submitting to and refusing a breath test under Transp. § 16-205.1 and the provisions governing admission of a breath or blood test under Cts. & Jud. Proc. § 10-302-09. A working knowledge of the latter is especially necessary in light of Transp. § 21-902(a)(2), a criminal per se statute that requires a finding of guilt based upon only a test result.

DUI offenses bear significant penalties at the Motor Vehicle Administration (MVA). Under Transp. § 16-205.1 a person who submits to a breath or blood test for alcohol with a result of .08 or more but less than .15 faces a 180-day driver's license suspension. These drivers may be eligible to receive a modification of the suspension or issuance of a restrictive license that allows the person to drive to and from employment, in the course of employment, to and from school, to and from any alcohol or education class, and to and from necessary medical treatment of the driver or a close relative. A person who has a test result of .15 or greater faces a 180-day suspension for a first offense and a 270-day suspension for a second or subsequent offense. A person who refuses to take an alcohol test faces a 270-day suspension for a first offense, and two years for a second or subsequent refusal. People who submit with a test result of .15 or above, or who refuse to take the test, are not eligible for a modification or issuance of a restrictive license. Instead these people may only drive if they are granted a restriction requiring that they only drive vehicles equipped with an ignition interlock for one year.

Maryland law also provides that an individual convicted of driving while under the influence of or impaired by alcohol could receive a jail sentence, fine, probation, probation before judgment, and an alcohol restricted license in court.⁵⁷ In a subsequent hearing at the MVA, one may receive suspension or revocation of the driver's license based on the conviction and the assessment of points, or an alcohol restricted license.⁵⁸

Drivers with evidence of an alcohol problem are referred for a further hearing to the medical advisory board, a panel of doctors that advise the MVA whether to allow individuals to drive based on evidence that the individual is attending a program of alcohol treatment and weekly monitoring.⁵⁹ The Medical Advisory Board is authorized to deny any person identified as an alcoholic from having a license unless he or she can demonstrate six months of sobriety "and submit evidence that he is under a recognized recovery program approved by a medical...