In the state of MD what can be done to reduce a DUI to reckless driving?

DUI 3 views 3 answers
Decision was "probation before judgment"; probation ends Oct. 2011. BRAC test was .16, however, it was a first offense, no prior arrests. When must action be taken to reduce the charge down?

Attorney Answers

3
Abraham Carpiogonzalez ·
I think there is a premise in your question that needs to be clarified. Why do you assume that a charge for which you received Probation Before Judgment in a DUI case can be later reduced to a reckless driving charge? Did your attorney tell you this? Anybody else told you this? If so, the answer is this: A charge for which there is a disposition and final verdict (a sentence or a striking of a sentence), such as a PBJ, cannot be modified or altered after the fact to reduce the charge to a lesser-included offense. So the answer to your question, in my opinion,is that you cannot reduce the charge to reckless driving, because you already accepted the PBJ on the DUI. The time and place to reduce the charge is before trial or plea, by agreement with the prosecutor not to pursue the greater offense. The judge does not have jurisdiction to reduce the charge for which he/she granted you a PBJ, after the PBJ. All the judge retains is the power to modify the conditions of probation, if your attorney filed a Motion for Modificaiton of sentence within 90 days of the sentence. Was that done? In my opinion, the motion for modification of sentence does not give the judge jurisdiction or power to reduce the charge. Also, please note that when you accepted the PBJ you waived your right to appeal within 30 days. So, you cannot file an appeal de novo in the Circuit Court to try to start from a fresh slate. If there was a procedural defect in the plea/trial, there may be some argument to be made to grant you postconviction relief and undo the PBJ, which would put you at ground zero. It would be hard, however. And I don't know if it would be in your best interest. Also, please note that a PBJ for a DUI cannot be expunged. If you need any clarification of any of these points, I or many other qualified members of this site can help.
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Theodore Godfrey ·
I agree generally with the prior comments of my brother at the bar. The only doubt in my mind - and I suspect strongly that the prior attorney knows this law better than I do - is that it may be possible for a conviction to be reduced under a modification motion (which your lawyer probably did not file unless you know otherwise) to a lesser included offense. This is speculation on my part and I am doubtful that it's possible. The name of the motion is "motion to modify SENTENCE" i.e. disposition, NOT the finding of guilt on the specific charge. There is some case law holding that reckless driving IS a lesser included offense of driving while impaired/under the influence. But I am skeptical. Frankly if you blew a .16 you should be very glad you got PBJ even on a first offense, especially if it was in Frederick County.
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Larry Lamson ·
I agree with the previous answer. You are not going to get a "PBJ" reduced. The time for that was before you went to court originally. This entry will stay on your record and can not be expunged. Even though no points were assessed it is normally easy to interpret your MVA record to indicate that you were charged. The exception is if for some reason no action was taken at your MVA hearing.
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