By David Daggett

On December 2, 2014, in Kent County Circuit Court, the front seat (and only) passenger in a motor vehicle being operated by an impaired driver, was convicted of Driving While Impaired by Alcohol. While I am unaware if a passenger in a vehicle has ever previously been convicted of impaired driving in this state, Maryland law clearly allows for it and it is something that should be considered under certain circumstances.

Here are the facts, in a nutshell: Two individuals were out and about in bucolic Kent County one evening, drinking and looking to have a good time. They were refused service at one establishment, whereupon they went to a convenience store and purchased a 12 pack and a six pack of beer to go. They then went to another bar and upon leaving there, cruised around the back roads of Kent County, drinking the beer previously purchased at the convenience store. The driver ultimately struck a deer (or in his words, the deer struck him), lost control of the vehicle and crashed into a storehouse being renovated into a house, killing the property owner and sole occupant. At the conclusion of a four day jury trial, the driver was convicted of Auto Manslaughter – Criminal Negligence, Homicide by Motor Vehicle While Impaired by Alcohol, Driving While Impaired by Alcohol and assorted other traffic related charges. The passenger was charged with, and ultimately pleaded guilty to, Impaired Driving (TR §21-902(b)) and is awaiting sentencing.

How is this possible?

My September, 2013 blog discusses “parties to an offense” under Maryland Transportation Article §26-101. Subsection (a) of §26-101 states that any person who commits a violation of the Maryland Vehicle Law, whether as a principal, agent, or accessory, is guilty of the violation. Subsections (b) through (j) encompass persons attempting to commit a violation or who conspire, aid, abet, induce, cause, coerce, permit or direct others to commit a violation of the Maryland Vehicle Law and likewise, makes them guilty of the violation.

Not all circumstances lend themselves to charging the passenger with the same traffic code violations as the driver. While each case will be fact specific, certainly there are some situations whereby the passenger should be charged. For example, if the driver and passenger are joyriding around, using the vehicle as a “rolling bar,” why wouldn’t the passenger be every bit as liable as the driver for drunk driving? Another example is if the vehicle is involved in a collision and the driver and passenger leave the scene without complying with the law. It would appear that both driver and passenger are equally culpable for hit and run violations under TR §20-102 through §20-106. And what about when the driver flees and eludes the police (§21-904) and is encouraged to do so by the passenger? Another possible example is when the vehicle is involved in a race or speed contest and the passenger is urging on the driver, either before or during the activity. These are just some examples whereby a strong case could be made against the passenger for conspiring, aiding, abetting, inducing, causing, coercing, permitting or directing the driver to commit a violation of the Maryland Vehicle Law.

To successfully prosecute such cases requires savvy police work and a little bit of outside the box thinking and investigation. Statements by all parties – not just the driver – are crucial. Eyewitness accounts become even more important. Don’t just ask eyewitnesses about the driver’s actions. Ask them about their observations of the passenger’s behavior as well. Just remember, in the case of drunk driving, you needn’t prove that the passenger was impaired or under the influence of alcohol, but rather that the driver was impaired and that the passenger/s encouraged that impaired driving under one of the prohibited subsections of §26-101.

Pertinent language regarding §26-101 can be found in the Maryland case of Dennis v. State, 342 Md. 196 (1996): “There is ordinarily no reason to believe that a passenger in a vehicle is guilty, as an accessory or aider and abettor, of the traffic offense with which the driver may be charged….It is only when the passenger’s actions are consistent with those of an accessory or aider and abettor that a police officer has a basis for focusing on and/or charging the passenger. When, for example, the passenger in an automobile in which the driver is charged with fleeing from the police, flees after the automobile is stopped, it is possible for there to arise at least a reasonable suspicion that the passenger was the driver’s accessory or aider and abettor.” Id @ 206. Also, see footnote 3 in the same case. While Dennis involved fleeing and eluding, the statute certainly isn’t limited to fleeing and eluding cases.

With that being said, certainly not all situations warrant charging passengers with the offenses of the driver. For example, it is not suggested that every time you have two individuals driving home together from a bar that you would want to charge the passenger. It is highly recommended that police and prosecutors make use of this section judiciously. To do otherwise would risk incurring the wrath of judges everywhere. It’s not as if they don’t have enough cases to go around!

TR §26-102. Offense by person owning or controlling vehicle

A related statute to TR §26-101 is TR §26-102. That section prohibits a person who owns a vehicle from knowingly permitting the operation of the vehicle on a highway in any manner contrary to law. This section can be useful when an owner knowingly allows an impaired person to drive his vehicle, or when he allows his vehicle to be used to assist another in avoiding that person’s ignition interlock device. Be aware that in a prosecution under this section, the prosecution must enter into evidence a valid copy of the vehicle’s registration, showing that is registered to the defendant/owner. Again, like §26-101, this section should be used judiciously – in those circumstances when the owner simply deserves to be charged. And when is that? Like pornography, you’ll know it when you see it.

David Daggett is a Transportation Safety Resource Prosecutor with the Maryland State’s Attorney’s Association. The Maryland TSRP blogs are posted with the permission of the author.