36 CFR 4.23: Operating Under the Influence of Alcohol or Drugs

There are numerous differences between federal and state DUI cases, but the elements of the offense are almost identical.  First, the government must prove the defendant was on federal property or a federally patrolled roadway.  Federal property incudes military installations such as Fort Meade and Joint Base Andrews.  Federally maintained roads such as the BW Parkway (295) are patrolled by the United States Park Police and any violations committed on these highways will be prosecuted in federal court.  Once jurisdiction is established prosecutors are required to prove that a person was in actual or physical control of a motor vehicle while under the influence of alcohol or drugs to a degree that renders the operator incapable of safe operation.  Actual control means driving but physical control of a motor vehicle does not require proof that the defendant drove.  Just like under state law, the feds can prove a DUI case by establishing that the defendant had the immediate ability to drive the vehicle.  Facts that can support this include the defendant sitting in the driver’s seat, whether the ignition was on and where the keys were located.  The government can also prove a federal DUI case by establishing that the operator’s blood or breath was .08 or higher.  Federal law specifically states that if a driver tests under .08 he or she is not presumed to not be impaired.  Still, testing under the limit can provide a strong defense, as well as avoid an additional charge for refusing to submit to the test.  Juveniles and adults under the age of 21 may be charged with violating an alcohol license restriction by a federal officer if his or her BAC was .02 or higher.  The code gives federal police the authority to enforce state laws that are stricter.  Maryland has a zero tolerance policy for minors, so trace amounts of alcohol could result in a charge.
If a driver pulls over on the side of 295 to rest the Park Police will likely appear on the scene within minutes.  If the officer smells alcohol, then her or she will administer sobriety exercises and likely make an arrest if there is even a hint of impairment.  It is not necessary for the police to have witnessed the defendant driving to administer tests or charge DUI.  There are also numerous cases initiated when drivers attempt to exit the BWI Parkway or other highway and accidentally pull into a military base exit or other federal installation.  As soon as a driver pulls up to the gates at the NSA, Andrews, Fort Meade, NASA etc. the police will approach with suspicion.
 
Maryland DUI and DWI cases are prosecuted under 21-902 of the state Transportation Code.  It may sound confusing, but anyone cited for DUI on federal property such as the NIH, Fort Meade or Joint Base Andrews will be prosecuted under this state law.  The case will be heard in federal court and handled by the U.S. Attorney’s Office.  36 CFR 4.23 only applies to impaired driving in United States park lands.  There is no specific federal statute that prohibits DUI on federal property, but police can use the Assimilative Crimes Act to charge a person with the most relevant state violation.
 
The defenses for a federal DUI are similar to those used in state cases.  When the government does not have a breath test to admit in evidence there is always a chance to win based on a lack of evidence argument.  A jury can be persuaded to find a defendant not guilty in a DUI case based on the lack of evidence of substantial impairment.  As long as the defendant was not involved in a serious accident, there was no alcohol present in the vehicle and was not visibly intoxicated on camera there is a good shot to win a jury trial.  We have won trials even when these factors are present, however, in federal court a person charged with DUI will typically not have a right to a jury trial.
 
The penalties for a Maryland federal DUI depend on where the stop took place.  The majority of federal DUI cases in Maryland occur on 295 and other highways patrolled by the United States Park Police.  These are the charged under 36 CFR 4.23 and carry a maximum penalty of up to 6 months in jail and a $5,000 fine.  DUI cases initiated on federal property such as the NIH, Fort Meade and Joint Base Andrews carry the same penalties as a state violation, 1 year and $1,000 for DUI and 60 days and $500 for DWI.
 
Maryland federal DUI lawyer Benjamin Herbst has successfully defended hundreds of clients facing impaired driving charges.  He is extensive experience in the Greenbelt and Baltimore courthouses and is available 7 days a week to offer a free consultation in your case.  Call Benjamin anytime at 410-207-2598 to learn which defenses may apply to your DUI case.