In Maryland, a person is guilty of DUI if he or she is (1) driving any vehicle while the driver is so far impaired by any drug that he or she cannot drive a vehicle safely, OR (2) driving any vehicle while the person is impaired by any controlled dangerous substance, if the person is not entitled to use the controlled dangerous substance under the laws of this State. Md. Code. Ann. Transp. §§ 21-902 (c)(1),(d)(1) (West 2010).
Affirmative Defense
It is an affirmative defense to the second type of DUI if the driver is or has been entitled to use the controlled substance under the laws of Id. § 21-902 (d)(1).
NOTE: This affirmative defense does not currently apply in Maryland. Maryland courts have ruled that Maryland’s medical cannabis laws DO NOT legally entitle any person to use cannabis. Maryland’s Compassionate Use Act still subjects patients to criminal penalties, but allows that medical necessity be considered in order to mitigate penalties associated with possession and use. Jefferson v. State, 883 A.2d 251 (2005).
Furthermore, since The Compassionate Use Act is only explicitly applicable with regard to possession and use, it is unlikely that the court will find medical use a mitigating factor in a DUI proceeding.
Implied Consent
- Any person who drives or attempts to drive a motor vehicle in Maryland is deemed to have consented to take a test if the person should be detained on suspicion of driving or attempting to drive while under the influence of alcohol or while so far impaired by any drug that the person could not drive a vehicle safely, or while impaired by a controlled dangerous substance. Md. Code. Ann. Transp. § 16-205.1(a)(2) (West 2010).
- Unless the incident leads to an accident that results in death or a life threatening injury to another person, the driver may not be compelled to take a test. Id. § 16-205.1.
- Refusal to submit to chemical test(s) will result in the suspension of the person’s driver’s license for up to 45 days. Id. § 16-205.1.
- Whether driver has a right to communicate with counsel before taking a chemical test depends on the individual facts of each case. Person generally has right to counsel, but the request may not unreasonably delay the administration of the test. Sites v. State,481 A.2d 192(1984); Motor Vehicle Admin. v. Atterbeary, 796 A.2d 75 (2002).
Penalties
- First offense (w/i last 5 years) misdemeanor – jail sentence of 2 months up to 1-year (possible fine in lieu of incarceration); fine of $500 up to a $1,000; license suspension period of up to 45 days; offender is required to successfully complete a drug/alcohol education program; up to 2-years in jail and a $2,000 fine for a DUI conviction if there is a minor in vehicle. State. Md. Code. Ann. Transp. § 27-101(k)(1)(i) (West 2010); Id. §§ 27-101(k)(2)-(3).
- Second offense (w/i 5 years) misdemeanor – up to 2-years in jail (possible fine in lieu of jail); mandatory minimum of 48-hours; up to a $2,000 fine; license suspension up to 90 days; offender is required to successfully complete drug/alcohol education program; conviction with minor in vehicle up to 3-years in jail and a $3,000 fine. Id. § 27-101(k)(1)(ii); Id. §§ 27-101(k)(2)-(3).
- Third offense (w/i 5 years) – up to 3-years in jail (possible fine in lieu jail); up to a $3,000 fine; license suspension of up to 18 months; offender is required to successfully complete drug/alcohol education program; if there was a minor in the vehicle at the time up to 4-years in jail, and up to a $4,000 fine. Id. § 27-101(k)(1)(iii); Id. §§ 27-101(k)(2)-(3).
Sobriety Checkpoints
In Maryland, sobriety checkpoints are upheld under state and federal Constitution.
- No statutory or constitutional violations occur when the inhabitants of a vehicle are stopped at sobriety checkpoint. In view of State’s compelling interest in controlling drunk driving and the fact that checkpoints were operated under thoughtfully crafted regulations which severely restricted discretion of officers in the field and took steps to assure that motorists would not be singled out without cause. Little v. State, 479 A.2d 903 (Md. 1984).
Case Law
Cook v. State, 490 A.2d 1311, (1985) — Evidence from which jury could fairly conclude that defendant was incapable of driving safely due to influence of drugs is sufficient to convict for the purposes of DUI.
Brooks v. State, 395 A.2d 1224 (1979) — In determining impairment, chemical evidence is probative, but unnecessary for conviction. Observation of defendant’s behavior may be sufficient.
Jefferson v. State, 883 A.2d 251 (Md.App.,2005) – Maryland’s Compassionate Use Act, which allows sentencing court to consider medical necessity evidence in mitigation of sentence, does not affect another criminal statute classifying marijuana as Schedule I controlled substance.