Ask a DUI Attorney: Will I Go to Jail
for a Second DUI in Maryland?

Stop the fear of DUIWe are Maryland DUI attorneys who regularly represent clients facing a second, third or more DUI charge. The first question we are asked by new clients is whether they are going to jail because they have been convicted of prior DUI’s. Clients want to know whether jail is certain and if so for how long.

This blog is intended to address this very real concern and share some of the important proactive steps that make a significant difference in eliminating jail exposure or significantly reducing the length of jail in cases where there have been multiple prior DUI convictions.

The first thing we advice clients is not to despair and surrender to fear. As DUI lawyers, we are always proactive. In this regard, one of the most important decisions that have to be made is whether the DUI charge is defendable. Remember, a second, third, or whatever DUI charge is still nothing more than an accusation by a police officer. The evidence is not stronger simply because the client has priors. We do our normal aggressive trial preparation. In a prior blog I explained the steps in defending a person in Maryland charged with DUI. Those steps apply regardless of how many priors exist!

Beating the charge to avoid jail.

1. What was the basis of the traffic stop?

Did the officer make a traffic stop because he observed the client simply leaving a bar near closing time? Yes, there are police officers in Montgomery County that “sit on bars” meaning that they actually hang out around bars waiting and watching individuals leaving late at night for their precarious drive home.

A number of DUI cases that we have successfully defended are where the traffic stop is based upon a momentary crossing of the white edge-line, to check on the benefit of the driver for failing to drive in a single lane. The law under cases like Rowe v. Maryland, is that a minor traffic violation that causes no danger to either the driver or others is insufficient as a basis for a traffic stop. Importantly, police officers in Maryland are no longer permitted to make traffic stops to check on drivers’ welfare.

Similarly, traffic stops due to equipment failures often create opportunities. The non-functioning third light is a good example. While cars are equipped with a third brake light, it is not required that this light actually function. Older cars frequently have a broken tag light. But the illumination of the license plate only requires that one of the tag lights function. Most vehicles are equipped with two tag lights.

2. How did the client perform on the field sobriety tests?

A thorough understanding of the filed sobriety testing is vital in evaluating the quality of the officer’s testing and assessing the accuracy of his conclusions. In this regard, our long-term membership and active involvement with the National College of DUI Defense is vital.

In a prior blog I addressed the importance of getting a detailed understanding of all the facts surrounding the traffic stop. In Montgomery County, police officers are trained to follow a specific protocol in administrating field sobriety tests. Opportunities are generated to attack the quality of the testing when a police officer deviates from these required protocols.

Environmental factors are incredibly important. For example, performance on filed sobriety testing will be adversely affected by factors such as weather, lighting, temperature, and physical conditions such as a sloping roadway. One of the most common mistakes made by police officers is conducting testing in front of their vehicles with the flashing emergency lights directed at the driver. There is ample evidence of the dilatory effects caused by “strobe effect”.

3. Is the Breath Test valid?

There are a number of important issues presented in assessing the validity of the breath test.

i. Did the officer observe the client for 20 minutes prior to administrating the breath test? This is an absolute requirement as part of the Code of Maryland Regulation (COMAR) governing the admissibility of breath tests.

ii. Is the certification of the testing equipment and testing sample valid, up to date and present in court?

iii. Does the breath-testing officer have all his required certifications and are they present in court?

iv. Did the defense lawyer make a proper pre-trial demand for the presence of the testing police officer and any other qualified testing personnel?

v. Does the client have any health conditions that can cause the presence of mouth alcohol? Frequently, we discover that a breath test reading may be unreliable due to the client suffering from Gastroesophageal reflux disease (GERD). This is a condition in which food or liquid travels backwards from the stomach to the esophagus (the tube from the mouth to the stomach). GERD often causes mouth alcohol to be present which will result in a high breath test result.

These and other issues are present in every Maryland DUI case. So, whether it’s a first, second or third DUI case, these issues need to be carefully and thoroughly investigated. Often, through effective trial preparation, a case can be won and jail and possible consequences are avoided.

Alteratives to Jail in Maryland DUI Cases

However, there are cases where the evidence is such that we must prepare or the consequences of being found guilty of DUI. In this regard, the most important guide I give to clients and if you take nothing else from this blog please appreciate importance of the following: “If you can present a solid plan to a judge that makes sense and the plan is already working, then the judge won’t feel a compelling need to try to fix the problem himself.”

Many of our clients have been suffering, sometimes for years with the devastating disease that is alcoholism. In fact, one of the most challenging aspects of our practice is that most of our clients facing DUI charges are incredibly successful, highly educated and wonderful members of our community.

Our clients are great parents with loving and caring spouses and have the support of family and friends. We bring these important qualities into the courtroom.

Another important rule that should always be followed is that our clients may have a problem, it may even be a significant but we never let the prosecutor define the client by the problem!

One of our objectives is to present a full three-dimensional picture of whom our client is. We always come to court with a sound and reasonable plan that appropriately and comprehensively addresses the alcohol issue. Again, if the plan makes sense, and is actually working, it becomes much easier for a judge to endorse it.

Sometimes, it becomes necessary to delay a case. We may need time to fully create and implement the plan.

We have forged effective and close relationships with wonderful organizations such as, Right Turn of Maryland, The Alcohol Program for Evaluation & Education and Alcoholics Anonymous.

We take the time to strategize and create a comprehensive program with our clients designed to address what may be significant problems. We then give the client time to fully implement and integrate the program into their lives. By the time we actually do go to court, we can demonstratively show the court that we have a credible, intelligent and transparent plan that addresses our clients issues without the need for jail.