Maryland Anne Arundel County DUI Consecutive Sentence Double Jeopardy Rule Lawyers Attorneys

ERIC TURKILL WASHINGTON v. STATE ofintoxicated driving conviction based solely on blood
MARYLANDalcohol content, as an alternative to the fact
COURT OF SPECIAL APPEALS OF MARYLANDfinder having to rely on the more subjective
January 28, 2010, Filedbehavioral evidence necessary to prove
Appellant told the officer that he had had twointoxicated driving.  Because the two offenses
beers.  A second patrol officer, who respondedare separate, the trial court was not required to
as backup, administered one of the threemerge appellant's convictions for DUI and DUI per
standard field sobriety tests. Upon exiting hisse. Indeed, appellant's trial counsel acknowledged
vehicle, appellant had a strong odor of alcohol onas much at sentencing, stating that "Count 3, the
his breath, his speech was very slurred, he was21-902(a)(2), and the 21-902(a)(1), do not merge.
swaying, using the car for balance, and his stepsThey are distinct charges with separate
were uncoordinated.  He claimed that he hadelements." Nevertheless, whether appellant's DUI
taken an Oxycodone six hours earlier, that heper se sentence must be merged into his DUI
walked with a cane and that he did not feelsentence is an analytically separate question. That
comfortable performing the walk indicating a levelis because, even when two offenses are
of alcohol intoxication that was way over the limit.separate under the required evidence test, in
 Appellant was arrested and took an alcoholsome circumstances multiple punishments may
breath test at the police station, resulting in anot be permitted in order to avoid a violation of
blood alcohol content reading of .25 more thanthe constitutional guarantee against double
three times the legal threshold of .08.  Appellantjeopardy.  In the instant case, we agree with
was convicted in the Circuit Court for Anneappellant that his sentences for DUI and DUI per
Arundel County of driving while under these should have been merged under the rule of
influence of alcohol and driving while under thelenity. Appellant's position presents an issue of first
influence of alcohol per se, and sentenced toimpression, because we have found no reported
consecutive terms of imprisonment.  He appealedcase addressing the propriety of consecutive
his consecutive sentences.sentences for DUI and DUI per se convictions
Issue:arising out of a single act of driving.  In this case,
- Whether the imposition of consecutivethe issue of sentencing merger is squarely
sentences upon conviction of DUI and DUI per sepresented by the trial court's imposition of
is permitted?  Whether DUI per se sentenceconsecutive sentences on the DUI conviction and
should have been merged into the DUI sentence?the DUI per se conviction. We hold that, when a
The Court held that the two are separatedefendant is convicted of both DUI and DUI per
offenses under the required evidence testse, arising out of the same act of driving, the
because each has "an element not found in thelesser sentence, in this case the one for DUI per
other." In support of that interpretation,  these, merges into the greater sentence, in this case
Court reviewed legislative history leading tothe sentence for DUI, under the rule of lenity.
enactment of the DUI per se provision in 1995,Therefore, we shall vacate the DUI per se
including materials from legislative committees, thesentence imposed on appellant.
Task Force on Drunk and Drugged Driving, andDisclaimer:
Mothers Against Drunk Driving (MADD). The CourtThese summaries are provided by the SRIS Law
concluded that the legislative history establishedGroup.  They represent the firm's unofficial views
that DUI per se was enacted as a separateof the Justices' opinions.
offense in the statutory scheme to permit an