Serving Salisbury and beyond Murder Lawyer Salisbury

Does Maryland have a “shelter defense” or “parked while intoxicated defense” when it comes to drinking and driving? Maryland’s top court in Atkinson v. State, 627 A.2d 1019 (1993) addressed this issue and focused on the definition of “actual physical control” of a vehicle. The Court looks at the following factors:

1. Whether or not the vehicle’s engine is running, or the ignition on;
2. Where and in what position the person is found in the vehicle;
3. Whether the person is awake or asleep;
4. Where the vehicle’s ignition key is located;
5. Whether the vehicle’s headlights are on;
6. Whether the vehicle is located in the roadway or is legally parked.

Recently I had such a case in the District Court for Wicomico County where the police responded to a call of a suspicious vehicle driving around a residential neighborhood around 3 am. When officers arrived they found a car parked in the roadway; interior lights on with the radio playing; and the driver behind the wheel asleep. It took both officers numerous attempts to wake the sole occupant of the vehicle. Once awake the driver was given the usual standardized filed sobriety tests (SFSTs) which he failed and was placed under arrest. The officers also found open containers of twisted tea and a bottle of tequila on the passenger seat. Upon my cross examination of the officer, it was revealed that the engine was off but in the auxiliary mode and the key is a push button; the officers had a hard time waking the defendant behind the driver’s wheel; the key was in his pocket; headlights/exterior lights not on; and the neighborhood street did not have any shoulders to pull off on. The Court in arriving at its decision noted that there was not any testimony from the officer if the car that was mentioned in the call matched the description of the defendant’s car; there was no testimony if the bottle of tequila had been consumed or if it was open; no testimony if twisted tea has alcohol; and most critical, was there any evidence that the car had “recently been driven” and from where and what distance. Rember it is always the State’s burden to prove the elements of the offense beyond a reasonable doubt. The Court noted that the officers could have felt the car’s hood to see if it was warm to the touch on that January night to show that it had recently been driven, no such testimony existed. The Court mentioned Gore v. State, 536 A.2d 735 (1988) where the facts supported a conviction where it was shown that the defendant had driven his car “shortly” before the officer’s arrival. In my case, no such evidence was presented at trial. Once the officer was excused from the stand and the State rested, the Defense rested as well because I knew critical elements were missing and I did not want the defendant taking the stand in order to fill in the blanks for the prosecution. The client was found not guilty on all counts.

Salisbury University student contacted me because he was sure that a young lady that he had consensual sex with had called the police with a false allegation of rape. After having consensual sex with my client, the young lady basically accused my client of taking advantage of her because she had been drinking. But this did not stop her from having my client over to her apartment a week later. My client's suspicions were correct; he was contacted by a Salisbury Police Detective in order to tell "his side of the story" (watch out for that trap!). Thank goodness he contacted me first and I had the opportunity to speak with him first along with his parents. I was hired to represent him and we went to work immediately. The end result, no charges were filed. my client's future saved!

If you think that charges will be files, your instincts are usually correct. In this case, my client did the right thing and contacted me right away. The process was not inexpensive, but the result speaks for itself.