subject: DUI Anne Arundel County Maryland Per Se Driving While Under Influence [print this page] DUI Anne Arundel County Maryland Per Se Driving While Under Influence
Washington v. State, 190 Md. App. 168 (Md. Ct. Spec. App. 2010).
Issue: Whether the imposition of consecutive sentences upon conviction of DUI and DUI per se is permitted.
Appellant's contention that DUI and DUI per se are a "single offense," we conclude, and hold, that under the rule of lenity the two offenses merge for sentencing purposes when, as in this case, they arise from a single act of driving.
Under the rule of lenity, "a court will not impose multiple punishments but will, for sentencing purposes, merge one offense into the other," with "the offense carrying the lesser maximum penalty ordinarily merg[ing] into the offense carrying the greater maximum penalty. By applying the principle that, "[e]ven where two offenses are separate under the required evidence test, there may still be merger for sentencing purposes based on historical treatment, judicial decisions which hold the offenses merge, fairness, and the rule of lenity[,]" the Court concluded that "the Legislature intended that punishment the issue of sentencing merger is squarely presented by the trial court's imposition of consecutive sentences on the DUI conviction and the DUI per se conviction.
The court held that "when a defendant is convicted of both DUI and DUI per se, arising out of the same act of driving, the lesser sentence, in this case the one for DUI per se, merges into the greater sentence, in this case the sentence for DUI, under the rule of lenity. Therefore, we shall vacate the DUI per se sentence imposed on appellant."
No comparable "aggravation" or "increased culpability" justification exists in the instant case. Here, the multiple convictions merely reflect that the State established appellant's single episode of intoxicated driving by the introduction of both blood alcohol evidence and behavioral evidence. In this circumstance, as in Jones and Tederick, "at the very least, doubt exists as to whether the Maryland General Assembly intended such multiple punishment." Thus, appellant was entitled to the merger of the DUI and DUI per se sentences under the rule of lenity.
