To be a successful Maryland DUI/DWI Attorney, it is necessary to have a thorough knowledge of what constitutes a legal or illegal stop of a motor vehicle by the police. Very often, the only plausible way to defend a DUI/DWI in Maryland is to attack the basis for the stop. The reason for this is that over the last decade or so the State Legislature has passed laws that make most DUI/DWI cases, in the words of former CIA Director George Tenant, “a slam dunk” for the prosecutor, once the prosecutor establishes that the police lawfully stopped the defendant.
This is especially true if the defendant took the breathalyzer and registered a reading of .08 or greater. This is because in Maryland, a person who is proven to have been operating a motor vehicle while having a blood alcohol content of .08 or greater is “per se” guilty of driving under the influence of alcohol. Even if the defendant didn’t take the breathalyzer, however, most police officers write thorough enough reports detailing their observations of the defendant’s performance on the field sobriety tests and conduct throughout the booking process, for the State to secure a conviction at least as to driving while impaired if not to driving while under the influence. We successfully defended a case in Howard County last month that presented this exact situation. Here are the facts:
Our client was pulled over for on Interstate 95 South for, according to the police officer, “weaving within his lane” and for crossing over the white line separating the shoulder from the far right travel lane one time. The officer properly conducted the field sobriety tests (the horizontal gaze nystagmus, the walk and turn and the one leg stand) and detailed poor performance on each test in his report. He then arrested our client and offered him the opportunity to take a breathalyzer. Our client agreed to take the test and blew a reading of .13. In this situation, for the reasons noted above, there was no defense to this case other than to challenge the stop.
Fortunately for the client, he had a very strong defense that the police illegally stopped him in this case. The leading case on this fact pattern is Rowe v. State. In Rowe, a Maryland State Trooper observed a van being driven in the slow lane of I-95, at about 1:00AM. The trooper followed the vehicle for a little over a mile, and in that span observed it cross over onto the right shoulder about 8 inches, touch the rumble strip, return to the slow lane, and cross over a second time. The trooper then initiated a traffic stop “for the benefit of the driver…because it was late in the evening.” Id. at 428. The officer determined that the driver was not intoxicated, but discovered that he was driving a rental vehicle with an expired rental contract. The officer then searched the vehicle and discovered marijuana. He arrested the defendant for possession of cds and issued a warning for failure to drive in a single lane under Trans Art. § 21-309(b) . Suppression of this evidence based on an unlawful stop was denied in the trial court.
The Court of Appeals reversed the denial. The Court stated that “the petitioner’s momentary crossing of the edge line of the roadway and the later touching of that line did not amount to an unsafe lane change or unsafe entry onto the roadway, conduct prohibited by §21-309, and thus, cannot support a traffic stop in this case.” Id. at 441. The Court also stated that a lawful traffic stop may also rest upon reasonable articulable suspicion, and stated: “A traffic stop may also be constitutionally permissible where the office has a reasonable belief that “criminal activity is afoot.” Whether probable cause or reasonable suspicion exists to justify a stop depends on the totality of the circumstances.” The Court did not determine that there was other reasonable suspicion.
The Assistant State’s Attorney in our recent case refused to dismiss the case even though she acknowledge that our fact pattern was nearly identical to that in Rowe. We chose to try this case to the judge in the District Court (as opposed to electing a jury trial in the Circuit Court). The prosecutor attempted to distinguish the facts from Rowe because in our case there was the additional fact that he was weaving within his line. The court found this attempt to distinguish the facts unpersuasive noting that weaving within a line is also not a violation of § 21-309(b). The court suppressed the evidence and our client was found not guilty.