The Outcome of an Administrative Hearing for a DUI/DWI

If you are charged with driving under the influence or driving while intoxicated, your license will be taken by the police and you will be issued a temporary license that lasts 45 days.  On the 46th day your license will be suspended.  To continue driving, you can fight your suspension in an administrative hearing or enter the ignition interlock system.  You can extend the length of your temporary license to the date of your administrative hearing, by asking for a hearing within 10 days of being charged. You have 30 days to request an administrative hearing, but the 45 day time limit of your temporary license will not be extended if you request your hearing after the 10th day.  

When a driver enters the ignition interlock program, he or she can only drive cars that are equipped with an ignition interlock system.  These systems prevent a car from starting until the driver has breathed into a device and the device has determined the driver is sober.  The driver will have to breathe into the device periodically while driving. Typically, there is an installation cost and a monthly service fee with the ignition interlock program.  The driver will need to breathe into the interlock system at least 50 times per month or explain to the Motor Vehicle Administration why he or she was unable to breathe into the device 50 times a month. Drivers in the interlock program, must file a monthly report with their interlock system provider so that providers can make sure that drivers are complying with the program. 

If having your license suspended or only being able to drive cars equipped with ignition interlock systems is not acceptable, you can request an administrative hearing.  In an administrative hearing, the judge does not have to allow you to participate in the ignition interlock program.  You are only guaranteed entry into the program if you enter into the program prior to the hearing. At the hearing, the administrative law judge can decide to suspend your license, allow you to enter into the ignition interlock program, enter the ignition interlock system and allow you to drive work vehicles that are not equipped with ignition interlock devices, or find that your license should not be suspended.  If you can show that the officer induced you into refusing the chemical test by providing misinformation you can beat the suspension. 

At the hearing, the only facts the administrative law judge will consider are:

  1. Whether the police officer had reasonable grounds to believe you were driving or attempting to drive while under the influence of or impaired by alcohol or drugs;
  2. Whether there is evidence that you used alcohol or drugs;
  3. Whether the police officer advised you of administrative sanctions before requesting the in-station chemical breath test;
  4. Whether you refused to take the test;
  5. Whether you drove or attempted to drive while having a alcohol concentration of 0.08 or more;
  6. Whether you drove or attempted to drive while having an alcohol concentration of 0.15 or more; and
  7. If the hearing involves disqualification of a commercial driver’s license, whether you were operating a commercial motor vehicle or held a commercial driver’s license.

For help navigating the administrative hearing, contact the Law Office of Phillip E. Chalker at (443) 961-7345 or at phillip@attorneychalker.com.

Refusing to Take a Chemical Test When Pulled Over for a DUI/DWI

In Maryland, if an officer pulls over a vehicle and suspects that the driver was driving while impaired or under the influence of drugs or alcohol, the officer will ask the driver to take a variety of tests.  Drivers can refuse all of these tests.  Except for the chemical breath test in the police station, drivers will not be penalized for refusing to take these tests. 

Maryland is an implied consent state.  This means that if a driver was lawfully stopped and detained by an officer, and the officer had probable cause to believe the driver was impaired, at the request of the officer, the driver must either take a chemical breath test at the police station or have their license suspended. 

The suspension is an administrative penalty that is not related to any criminal penalties that a driver may face.  The suspension will begin 45 days after the incident, unless the driver requested an administrative hearing within 10 days of being charged.  If the driver requests an administrative hearing within 10 days of being charged, their license will be suspended on the day of their administrative hearing.  (A driver can choose to have their license suspended earlier.)   Drivers have up to 30 days to request an administrative hearing, but their license will still be suspended after day 45 if they did not request the administrative hearing by day 10.   Rather than facing a suspension,  drivers that refuse to take a breath test can keep their license if they enter into the ignition interlock program.  However, except for a potential exception for work provided vehicles, the driver will only be able to drive vehicles equipped with an ignition interlock system.  (For more information on the ignition interlock system, click here.)

When a driver refuses to take the in-station breath test, an officer should inform the driver that their license will be suspended for refusing to take the test.  The officer should also tell the driver what happens if the driver takes a chemical test and has above a 0.08 or above a 0.15 blood alcohol content.   Prior to suspending a driver’s license, the officer will have the driver sign a DR-15 form.  This form advises drivers of their administrative rights.  The police officer should read the DR-15 to the driver or play a recording of someone reading the DR-15.  An officer’s failure to follow these steps might be considered misleading. 

If a driver can prove in an administrative hearing that the officer gave misleading information or induced the driver into refusing the test, the driver will only be without his or license for a short time – the period between the administrative hearing and going to the Motor Vehicle Administration to get a new driver’s license.  Licenses are confiscated at the administrative hearing, so drivers leave without their license.

If you refused to take a breath test and need help with the resulting legal matter, contact the Law Office of Phillip E. Chalker at (443) 961-7345 or at phillip@attorneychalker.com.

Getting a DUI/DWI: The Process from the Time Pulled Over Until Court

When an officer makes a traffic stop and has reason to believe you are driving under the influence (DUI) or driving while intoxicated (DWI), the officer will talk to you to assess whether you are impaired.  The officer may ask if you have had anything to drink or where you were earlier in the night.  You do not have to answer these questions.  In fact, answering these types of questions can give the officer reason to believe you are intoxicated.  Whereas, answering these questions may do little to stop an officer from continuing his assessment as to whether or not you are impaired.

If the officer believes that you are impaired, the officer will ask you to perform a variety of tests.  These include field sobriety test exercises, such as walking toe to heel in a straight line or standing with one foot raised off the ground, saying the ABCs backwards, counting backwards, and an eye examination.  These tests are administered to establish whether you are impaired.  However, you do not have to take any of the field sobriety tests.  While refusing to take these tests will limit the amount of evidence the state has against you in a criminal proceeding, the officer still has the right to arrest you for suspicion of drunk driving. 

After administering the field sobriety tests, but prior to arresting you, an officer may ask you to take a preliminary breath test (PBT).  For the PBT, you blow into a portable hand-held breath test device that calculates your blood alcohol content.  You are not compelled to take a PBT and the PBT cannot be used against you in a criminal or civil proceeding.   

Once at the station, you will be subjected to one or two chemical tests to determine your alcohol and/or drug concentration.  You can refuse to take the chemical test(s) until you speak with your attorney.  (For more information on refusing to take the breath test at the police station click here.)  Meeting with an attorney can give you additional information to help you decide whether it is in your best interest to breathe into a chemical test.  In fact, an attorney can even give you a breath test to determine if you should take the police’s chemical breath test.  You have up to two hours to take the chemical breath test, so long as you are not delaying taking the test to sober up.  Waiting for an attorney to arrive at the station is not considered delaying the test to sober up. 

Blowing above a 0.08 on the in-station chemical breath test results in a (DUI) citation and subjects you to criminal and administrative penalties.  The penalties are worse if you have a blood alcohol content of 0.15 or higher or if there was a child in the car. (If you are pulled over for driving erratically and have ablood alcohol content of 0.07 or less, you could be charged with driving while impaired.)  If driving while impaired or under the influence, the police officer will confiscate your license and issue you a temporary license.  The license is only good for 45 days. On the 46th day your license will be suspended.  You can fight your suspension in an administrative hearing or enter the ignition interlock system to continue driving.  You can extend the length of your temporary license to the date of your administrative hearing, by asking for a hearing within 10 days of being charged.  You have 30 days to request an administrative hearing, but the 45 day time limit of your temporary license will not be extended if you request your hearing after the 10th day.  (For more information on the administrative hearing click here.)    

Criminally, you will have to go to court for a preliminary inquiry about 30 days after your arrest.  This hearing advises you of your rights as a result of being charged.  You must attend the preliminary hearing, unless you hire a lawyer and the lawyer notifies the court in writing that he or she is representing you.  After the preliminary inquiry, (often a few months after) there will be a criminal hearing to determine whether you are guilty of a DUI or DWI.  A guilty finding in the criminal system is separate from the administrative penalties.  Judges have the ability to incarcerate you, fine you, or find you innocent.  You can also enter into a plea deal with the states attorney.  A common plea deal is probation before judgment (PBJ).  A PBJ is not a guilty finding.  In addition to these criminal sanctions, if the court finds you guilty, the Motor Vehicle Administration will put points on your record.  Insurance companies will often increase your rates when you have points on your record.

A lawyer can walk you through the ordeal that comes with getting a DUI or DWI.  If you need help with your citation, please contact The Law Office of Phillip E. Chalker at (443) 961-7345 or at phillip@attorneychalker.com.

High Stakes in Maryland Administrative Hearings

At the Maryland state level, administrative hearings are extremely important and are used to decide appeals of administrative agency decisions.  For example, these agency decisions might preclude someone from collecting insurance, result in a suspended driver’s license, or require someone to pay a fine. Generally, before appealing an agency’s decision to a court, a party has to exhaust all administrative remedies, including having an administrative hearing.   

In Maryland, administrative hearings are presided over by Administrative Law Judge (ALJ) and are commonly held by the Office of Administrative Hearings, an executive branch agency.  (Almost half of the administrative hearings are related to issues concerning the Motor Vehicle Administration.) Depending on the matter, after the hearing, the ALJ either makes a decision on the appeal or makes a recommendation to the agency with jurisdiction over the matter.  The agency can choose whether it follows the recommendation. 

Once all administrative remedies are exhausted, a party typically has 30 days to appeal to a court an agency decision by filing a petition for judicial review.  (Filing a petition for agency review does not automatically stop an agency action.  The petitioner has to file a motion with the court to delay the agency action until the court has ruled on the matter.) An appeal can be filed in any county where a party resides or has a principal place of business.  In order to overturn an ALJ’s decision, a reviewing court needs to find that the ALJ’s opinion was arbitrary.  In most instances in Maryland, courts review the administrative decision in the light most favorable to the administrative court.  A court will not reverse an ALJ’s decision simply because it would have ruled differently.  The ALJ’s decision will stand as long as it is legally sufficient and reasonable given the evidence.  (In worker’s compensation cases, the reviewing court will hear the case de novo, meaning the court will issue a new decision and not rely on the Administrative Law Judge’s decision.)  If a party wants to admit additional evidence at the circuit court level, they must provide the court with a good reason why the evidence was not offered at the administrative level.  At the conclusion of the case, the reviewing court can then remand the decision for additional consideration by the ALJ or uphold or reverse the ALJ’s decision.

If you would like assistance with your administrative hearing or the appeal, contact the Law Office of Phillip E. Chalker at (443) 961-7345 or phillip@attorneychalker.com.

A Snowstorm Might Subject Someone to Legal Liability

The time during and after snowstorms and freezing rain are very dangerous.  These sorts of storms can cause hazardous conditions.  Properly removing snow from roadways, walkways, and parking lots can limit legal liability. 

Individuals, businesses, and government agencies could be liable for injuries that occur on property they control.  An injured party must prove that the person, business, or government agency (1) controlled the property, (2) had actual or constructive knowledge about the hazard, (3) did not remove the hazard in a sufficient amount of time, and (4) the injury occurred because of the hazard.  Controlled property can include sidewalks, parking lots, roadways, and the areas inside a building.  In the case of snowstorms, snow and ice are hazardous condition.  For example, home owners and renters that do not shovel might be liable to someone that slipped as a result of the slippery conditions.  Also, a business that did not properly shovel the snow from their parking lot or address icy conditions that resulted from re-frozen snow melt might be liable for resulting injuries.

Compared to individuals and government agencies, businesses are likely to be held to a higher standard of care.  Businesses face a higher standard because they invite the public onto their premises for the benefit of the business i.e. to sell goods.  Assuming other factors are met, municipalities are liable for injuries if the condition at the place of the accident was more dangerous than the general conditions throughout the municipality.  In multifamily dwellings, like apartment buildings, the landlord is often responsible for maintaining the sidewalks and would be liable for any resulting injuries, if the other factors are met.

In addition to potential liabilities due to snow and ice, many municipalities will impose a fine on citizens and businesses that do not clear the sidewalks in front of their homes and offices from snow.  The fine varies depending by city and county.  Moreover, some areas restrict where you can put that snow.  For example, in Baltimore County, you cannot place your shoveled snow in the street or in front of a storm drain.   

If you were injured in a storm or are being sued due to alleged negligence, contact The Law Office of Phillip E. Chalker at (443) 961-7345 or phillip@attorneychalker.com.

Arbitration in Consumer Protection

Sometimes disputes between parties can be solved through arbitration, a process that is often quicker and cheaper than going to court.  Typically, during an arbitration proceeding, two parties present evidence and their arguments to an impartial individual, an arbitrator.  During arbitration, parties can be represented by an attorney and examine witnesses.  Based on the evidence, the arbitrator renders a decision on the matter.  Juries are not used in arbitration.  Under Maryland law, arbitration decisions in matters related to consumer protection are binding, except for limited appeals allowed by the Maryland Uniform Arbitration Act.   

In Maryland, when both the business and the consumer agree, consumer protection matters can be submitted for arbitration by the Consumer Protection Division.  Consumer protection matters include the sale of goods and services, credit, and realty.  In these instances, the arbitrator may award specific performance or the payment by the business to the consumer.  Moreover, in some instances, the arbitrator can award consequential damages. However, claims for punitive damages cannot be arbitrated.

Anyone that conducts business in Maryland can agree to submit all future disputes or a particular class of disputes to arbitration, so long as the dispute is covered by consumer protection regulations and the consumer also agrees to participate in the arbitration. An arbitration agreement must in writing and signed.  If one party is able to amend the arbitration agreement at any time and at their discretion, the arbitration contract might be unenforceable because it would mean that a party is not bound to arbitration. 

If you would like help in your arbitration matters, contact the Law Office of Phillip E. Chalker at (443) 961-7345 or at phillip@attorneychalker.com.

Disability Benefits for Children

The standard the Social Security Administration (SSA) uses to determine whether a child should be awarded disability benefits is very different from the standard used for adults.  In order to collect disability benefits for a child, his or her impairment must equal or be very similar to a specific impairment predefined by SSA (i.e. a listing), cause a marked limitation in two domains, or cause an extreme limitation in one domain.  Some of the predefined impairments may need to be diagnosed by specified medical testing.  A marked limitation seriously interferes with a child's ability to independently initiate, sustain, or complete domain-related activities.  An extreme impairment very seriously interferes with a child’s ability to independently initiate, sustain, or complete domain-related activities.  The domains are (1) Acquiring and Using Information, (2) Attending and Completing Tasks, (3) Interacting and Relating with Others, (4) Moving About and Manipulating Objects, (5) Caring for Yourself, and (6) Health and Physical Well-Being.  One impairment could affect multiple domains. While, conversely, multiple impairments may affect only one domain. To evaluate the severity of the child’s impairments, the child’s capabilities in these domains are compared to children of the same age that do not have impairments.  

Proving a child is disabled and should be awarded benefits can be trickier than proving an adult is disabled. If a child does not meet a listing, the impairment(s) have to impact a particular domain, as opposed to the individual as a whole.  Multiple factors are considered in determining the child’s degree of limitation in the various domains. Bulleted below are some of the factors that are considered.

  • Does the child need extra help or an assistive device?
  • Does he or she have difficulty initiating, sustaining or completing activities independently?
  • In what sort of setting does the child need to perform a given task?
  • How do the child’s abilities and behaviors differ when outside of that setting?
  • Does the child have a chronic illness that interferes with his or her abilities?
  • What are the effects of treatment on the child?
  • Is the child in an early intervention program or individualized education program?
  • Does the child need special education services or accommodations? 
  • Does the child have poor attendance or participation?

These can be shown by providing Disability Determination Services and an Administrative Law Judge with teachers’ opinions on the child’s limitations, medical records, third party statements (including statements by family and friends), standardized testing scores, and school records, among other evidence.

If you need help securing disability benefits for your child, please contact the Law Office of Phillip E. Chalker at (443) 961-7345 or at phillip@attorneychalker.com.

The Basics of Workers' Compensation

In Maryland, only diseases caused by an employee’s work and accidental personal injuries that arise out of and in the course of employment are covered by workers’ compensation. The accident must have occurred as a result of the employee’s job and have occurred in a time, place, and circumstance related to the job.  Moreover, there has to be an employee-employer relationship.  In most cases, contractors are not considered employees and are ineligible for workers’ compensation. 

If an accident occurs and an employee has a disability that lasts more than three days, the employer must report the accident to the Workers’ Compensation Commission, the employer’s insurance carrier, and the Department of Labor, Licensing, and Regulation.  Similarly, the injured employee needs to send a claim to the Workers’ Compensation Commission.  If the accident is covered by workers’ compensation, the employer and the insurance company are responsible for medical expenses, lost wages, vocational rehabilitation, as well as compensating the employee for a resulting disability, even if the disability is not permanent.

Employers in Maryland are required to have workers’ compensation insurance.  If they do not have insurance, they are subject to a fine between $500 and $5,000 and/or up to a year of jail.  If the employer is a corporation, the officer responsible for the general management of the corporation is the person subject to the penalties. 

If you would like to arrange a consultation please contact The Law Office of Phillip E. Chalker, at (443) 961-7345 or at phillip@attorneychalker.com.

Social Security Disability in 2016

At the end of 2015, we learned quite a bit about the future of Social Security benefits.   Despite projections that recipients of disability benefits would have their benefits cut by about 20 percent, Congress was able to reach an agreement to stave off cuts for a few more years.  

Although additional money was funneled to Social Security, some of which was used to hire new judges and attorneys, the back log of cases still remains.  In October 2015, the Social Security Administration had a backlog of about one million cases and it took about 450 days to process a case.  This is the longest backlog in the history of Social Security.  This backlog is not expected to significantly decrease in the near future.  In fact, the Social Security Administration only hopes to decrease the average processing time for a case to 270 days by 2020.

The backlog of cases dramatically affects Social Security applicants.  On average, recipients of Social Security disability benefits receive $1,145 a month in benefits.  However, recipients who are awarded benefits often receive more than $10,000 in back-pay owed to them because their case took so long to process – money that they could have been receiving much earlier.  This delay, compounded with the fact that the approval rate for disability benefits has declined dramatically over the years (only 32 percent of applicants were approved for disability benefits in the 3rd quarter of 2015), makes it extremely important to submit an application that appropriately accounts for all of a claimant’s symptoms.   A lawyer can help you with this.

Also in 2015, the Social Security Administration changed their policy to allow same-sex married couples to collect benefits earned by their partner’s work record.  This new policy will benefit widows, widowers and retirees.  Prior to the change in policy, same-sex married couples were only eligible for benefits stemming from their partner’s work record if they lived in a state that recognized same-sex marriage.

Lastly, we learned that the amount individuals will receive in 2016 will remain the same as it was in 2015. This is only the third time in 40 years that there was not an increase in individuals’ disability benefits.  Disability benefit payments are pegged to the inflation index.  Since inflation was so low in 2015, the amount individuals receive will not increase.

For help navigating obtaining Social Security Benefits, contact the Law Office of Phillip E. Chalker at (443) 961-7345 or at phillip@attorneychalker.com.