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Ahh-delightful San Diego….

Police OfficerAmanda Estrada 27, a San Diego police officer, was pulled over and arrested last month on suspicion of drunk driving. Evidently she was nabbed by a competing law enforcement officer from the California Highway Patrol known as CHIPS (recall the old TV program with Eric Estrada that is known by the same name as the defendant). The defendant blew under .08 and was given a ticket for driving under the influence but was NOT taken to jail, jail being a regular practice in DUI cases in San Diego and other venues like Baltimore City. Probably best for her that she was not jailed as her fellow inmates would probably be something less then welcoming to her.

The important thing about this arrest, other than a law enforcement officer being arrested for driving under the influence, is what her BAC (blood alcohol content) actually was at the time of the stop. Many clients come into our office wondering how and why they got arrested for blowing a .06, .05, or .04. The Maryland DUI law as it is written says .08 and the street signs all say “over .08, under arrest.” Thus leaving those charged to ponder the question; why the arrest when under .08? The answer is the pesky charge of Driving While Impaired 21-902 (b) which is different then Driving Under the influence 21-902(a) in Maryland.

Driving While Impaired is basically a catch all ticket for those that do not appear to be drunk, yet the officer smells alcohol and has a desire to meet his monthly quota for tickets and or alcohol arrests (ssshh police don’t have quotas). Put another way, if the cop smells alcohol on your breath that is strike 1, despite the fact that you are allowed to consume alcohol and operate a motor vehicle in Maryland and all other states. Then whatever the cop pulls your car over for is automatically strike 2; therefore if you were speeding, that’s an indicator of impairment. If you were driving too slow, then that’s the indicator. If you made a turn without your blinker on, that’s the indicator of your impairment. If you were driving without your seat belt on, well there you go, that’s a definite indicator that you were impaired (along with the odor of alcohol on your breath). Side note: the legislature changed the law in Maryland and failure to have your seatbelt on and/or texting are now primary offenses for which the cops can pull you over.

Then the true fun starts. The cops pop you out of your vehicle and either request or dictate (depending on the cop) that you perform roadside gym exercises (field tests) and when you fail to perform them adequately (in the dark, on the side of the road with traffic whizzing by, in the rain/cold/wind) that becomes strike 3. So now you have 3 strikes against you and the cops are good to go for a collar- and as luck would have it, you are it! Then they escort you back to the station for the all important blow, only to be seriously disappointed when your BAC comes back at say .05 which is presumed not under the influence. How disappointing…..but are they going to toss the case and their work for the last hour? No chance! The ticket is written and now you must retain competent DUI counsel to defend your in court. The cops know that if they get some overly conservative judge on the bench or if they are in a conservative jurisdiction, (like say north of Baltimore up 95) on the trial date, they actually have a decent shot at conviction. Another side note: if this is a second offense in a super conservative area like Harford County, (whoops did I just say that out loud) then you are facing real jail time, like 30 or 60 days, compared to any other reasonable county in Maryland where you may be facing a weekend or two.

Take home message: Driving While Impaired is a real charge which is not advertised but exists in every state. The .08 BAC number is a fallacy and is not required to obtain a conviction. Be advised- you heard it here first.

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