A TEST REFUSAL- AN MVA HEARING A WIN

Before telling you about the above specific MVA hearing I recently won, I will give you some pitfalls that face you, the client, in what happens if you go to the wrong lawyer. Obviously to protect my client’s privacy I shall refer to him as Mr.X.

So the phone rings and it is Mr.X charged with DUI and related offenses and he also faces a suspension for his refusal to submit to a chemical test to determine the alcohol content in his blood – the dreaded breathalyzer test. The first thing he wants to know is how much I charge. At this point i explained, politely,that I haven’t practiced law for 37 years and handled conservatively 3000 of these cases to enter into a bidding contest with other lawyers. After all its not like your buying an identical item such as a screwdriver wherein you can just compare prices for an identifcal product. This is a very result oriented matter and one should choose the lawyer they feel can get the best result because, trust me, once you get a bad result it can’t be undone. I explained I do not charge for a consultation, but I don’t quote prices on the phone.
Next, as so often happens Mr.X wanted to explain to me what the other lawyers could do for him that he spoke to, specifically with regards to a potential MVA hearing for his refusing the breathalyzer test. I don’t know if there are lawyers who think they know what they are doing, when they do not, or worst case scenario,lawyers who are so hungry for business they give out false hope and false information in hopes of getting a case. This guy had been given so much false information I am amazed he actually hired me, because as opposed, to the other lawyers I gave him the correct information and did not try and BS him in order to get his money. Here’s what other lawyers told him with regard to his potential hearing for his refusal.
( for a first time refusal you face a four month suspension of your license or in the alternative, under certain conditions, you can sign up for an interlock device on your car for one year)
Lawyer 1 – Mr.X precedes to tell me this lawyer can guarantee a win at the MVA because the law states that the test has to be given within 2 hours of the arrest and his was not. I think the only reason he believed me when I gave him the correct information on this subject was because I actually know the case names by heart concerning this “law” , in addition to the other matters we will get to. I explained to him as emphatically as possible this was not true. So hard to get someone to believe you when another lawyer has lied to them either intentionally or by mistake. In the case of MVA vs. Jones, 844 A.2nd 388 the court unequivocally ruled that not giving the test within this 2 hour window was absolutely not a factor to be considered by the MVA Judge. To quote the court ” The plain language of the Md.Code does not include any time related issues pertaining to the chemical breath test or the DR-15 advice form ” and then the court goes on to list the 6 issues involved, of which, the time limit is not one.
Lawyer 2 – This lawyer was either the worlds biggest idiot or liar. He told Mr.X that he could get him a job restricted driver’s license for his period of suspension. I told Mr.X that the last time this guy must have had an MVA hearing had to have been 7 years ago because the law had been changed and UNDER NO CIRCUMSTANCES can one get a job restricted license for an MVA chemical test refusal.
Lawyer 2 – this guy paints an entirely bleak picture and tells this guy that there is nothing that can be done. That a refusal calls for either a 4 month suspension or a one year interlock device and there is absolutely no defense to this. Well,of course,
this was wrong, as evidenced by the fact that I won his hearing. This was obviously a lawyer who had done no legal research on the subject. Some of the possible ways to win such a hearing will be discussed later on when I discuss how this particular hearing was won.
Lawyer 3 – Tells Mr.X he also can guarantee a win because the form given by the police to the defendant clearly requires the signature of both the police officer as well as the test technician and Mr.X had told this lawyer that his form did not have the signature of the technician. I first explained to Mr.X how illogical this was because the refusal could well have taken place before they had even gotten to the technician and as such a technician may never have even been involved. He, Mr.X, was rather insistent on this point because indeed the form in question does have a place for both signatures. When he came into the office I showed him the case of MVA vs. Gaddy, 335 Md. 342, which held ” signature of both police officer and test technician is not required on certification of driver’s refusal to take breath alcohol concentration test in order for certification to be prima facie evidence of refusal,but,rather,signature of officer is sufficient “. The court in this case then goes on to point out that the legislative intent in all of these laws is to protect the public and not the drunk driver and they pretty much are going to interpret all laws with this in mind.
Well, these refusal hearings can be won – but you win them or you lose them – there is nothing in between. Another words, when one takes the test, and “blows” at least an 0.08 and no more then 0.15, and one loses the hearing, you can still be eligible for a job restricted and or educational restricted license. As stated above there is no such a thing for a refusal. But and its a big but:
  1. the officer still had to have had reasonable grounds to have stopped or detained the driver to begin with;
  2. the reasonable grounds had to be stated on the appropriate forms given to the driver;
  3. the driver still had to have been advised of his rights with regards to the taking of the test;
  4. was there really a refusal – now we are finally at the case at hand.

When Mr.X came into the office I, of course, first went over all of the paper work given to him by the officer to see if all the required t’s were crossed and all i’s dotted. They were. There were ample grounds for the stop and ample grounds for the officer to believe my client was under the influence. The probable cause for the stop was correctly stated and all rights explained to my client. So how did I win it ? In questioning my client about his background ( I do in in depth interview) I learned that he suffered from asthma since birth. In further questioning he said he did try and blow on the device given to him, but it did not register. He said he did not at first mention this to me because he figured no one would believe him. I did. I explained to him that this was a valid defense and I felt confident about it. I had to warn him, though, that if we lost the hearing, and he wanted to continue to drive, we could request the one year interlock and would probably get it, but there was no guarantee. Another words, if you request the interlock and do not request a hearing you get the interlock ( certain restrictions). The MVA judge does not have to give it to you. My client said he was telling the truth so we requested the hearing.

 I brought my clients complete medical records to the hearing and made sure I had an up to date report from a Doctor confirming the-asthma and its interference with his ability to give the required breath sample. I then argued the law, in accordance with the case of Borbon v.MVA, 691 A.2nd 1328, which states ” Printout from alcohol breath test machine reporting insufficient breath to determine alcohol content of driver’s breath did not, by itself, raise presumption that driver’s license under implied consent law, retained burden of establishing that driver refused test by his conduct”. In plain english, the result, by itself, was not enough to qualify as a refusal where my client testified he tried to take the test, but physically could not. With the introduction of the medical records the MVA Judge didn’t even ask the officer, his opinion, as to whether or not, Mr.X really tried to take the test. Note this is not a free pass – testimony from the officer or the technician that the defendant deliberately tried to frustrate the taking of the test is allowed,ie. cheeks to expand when blowing, putting foreign substances in mouth etc.
 In conclusion, honesty, experience, and knowledge of your attorney can make the difference. Fortunately for him, Mr.X choose me as his attorney.