Governor Hogan's Veto of Bill to De-criminalize Marijuana Paraphernalia Makes No Sense

May 23, 2015

Governor Hogan vetoed a bill that would have removed criminal penalties from possession of paraphernalia used to smoke marijuana. This legislation is needed to eliminate an inconsistency in the law because it is no longer criminal to possess under 10 grams of marijuana in Maryland. However, according to a Washington Post article, "The governor said he vetoed the marijuana legislation because it would have created uncertainty about whether individuals can smoke pot while driving." This makes no sense at all. In Maryland it is illegal to drive while impaired by a drug if it makes the driver unable to drive safely and while under the influence of a controlled dangerous substance, including marijuana. While a glance at the legislation shows that a provision specifically making it illegal to smoke marijuana while driving was deleted from the bill, the omission of that provision does not change the law on driving while impaired by drugs or while under the influence of controlled dangerous substances.

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Supreme Court Holds The Line Against Unconstitutional Detentions

April 21, 2015

Today, the Supreme Court released its decision and opinion in Rodriguez v. United States. This was not just a defense win. It was a win for anyone who travels in a car and may be stopped by the police for a traffic violation. The six justices in the majority were Ginsburg (who wrote the opinion), Roberts, Scalia, Kagan, Sotomayor, and Breyer.

Rodriguez had been stopped for driving on the shoulder. After the officer had checked his license and registration, found no warrants, and wrote a warning and handed it to Rodriguez, he required Rodriguez to stay at the location for a dog sniff of his car. The dog signaled that the car had drugs and police recovered the drugs.

The problem was that the officer had no further basis to suspect Rodriguez had done anything wrong at the time he continued to detain Rodriguez for a dog sniff. The purpose of the traffic stop had been completed. The 8th Circuit Court of Appeals found that the extended detention was de minimus and not sufficient to require suppression of the evidence found.

The Supreme Court reversed. It said:

We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, "become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission" of issuing a ticket for the violation.

What this means is that police can investigate other crimes during the time that it would take to write a ticket, but cannot use a search for which the police do not have articulable reasonable suspicion to extend that time. They cannot dilly dally or delay writing the ticket in order to conduct an illegal search.

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Stamm Testifies Before the Maryland House Judiciary Committee

March 4, 2015

On March 4, 2015, Leonard Stamm testified in opposition to House Bill 532 which would require officers to tell suspected drunk drivers in a fatal or life threatening injury crash that they are required to submit to an alcohol test. Here is the written version of his testimony:

My name is Leonard Stamm. I have been in private practice defending persons accused of drunk driving and other crimes for over 30 years. I am currently Assistant Dean of The National College for DUI Defense, a nationwide organization with over 1300 lawyer members. I am a former president of the Maryland Criminal Defense Attorneys' Association. In 2014, I had the privilege of co-authoring an amicus brief filed by the National Association of Criminal Defense Lawyers and The National College for DUI Defense in the Supreme Court case of Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) . The Supreme Court held that a drunk driving arrest does not automatically create exigent circumstances that would relieve the police of their obligation to first seek a search warrant based on probable cause before compelling a driver to submit to a blood test.

For cases where the arrest occurred before April 17, 2014, the day that McNeely was decided, many courts have upheld admission of tests on the ground that where police objectively reasonably relied on a statue not yet held to be unconstitutional, that it would be on it inappropriate to apply the exclusionary rule and suppress the blood test. However, for cases where the arrest occurs after April 17, 2014, that claim of objectively reasonable reliance on an unconstitutional statute is less likely to prevail. The end result of passing the proposed amendment to § 16-205.1 could ironically be that tests showing the driver to be impaired by alcohol and/or drugs would likely be suppressed and withheld from the fact-finder.

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Proposals for New DUI Laws in 2015

February 2, 2015

1. Change "reasonable grounds" in § 16-205.1 to "probable cause"

The Fourth Amendment requires articulable reasonable suspicion to stop a vehicle, Whren v. U.S., 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) and probable cause to effect an arrest. Hayes v. Florida, 470 U.S. 811, 105 S. Ct. 1643, 84 L. Ed. 2d 705 (1985). However, the Court of Appeals has made it clear that the Fourth Amendment does not apply in MVA hearings. Motor Vehicle Admin. v. Richards, 356 Md. 356, 739 A.2d 58 (1999).

The officer is not required to recite the basis for the stop on the sworn statement submitted to the MVA in support of a suspension. Motor Vehicle Admin. v. Lipella, 427 Md. 455, 48 A.3d 803 (2012). The driver may only prevail on the ground of a bad stop if the driver shows the officer acted in bad faith in effecting the stop. Id.; COMAR

Transp. § 16-205.1 requires an officer to detain the driver and request a test if the officer has "reasonable grounds" to believe the driver is driving while impaired. In Motor Vehicle Admin. v. Shepard, 399 Md. 241, 923 A.2d 100 (2007) the Court of Appeals construed "reasonable grounds" to be the equivalent of articulable reasonable suspicion to believe the driver is impaired. Thus while the Fourth Amendment requires the officer to have probable cause before making an arrest, § 16-205.1 requires the officer to "detain," i.e., effectively arrest the driver, with articulable reasonable suspicion. Thus the officer is given conflicting instructions, to not make and to make an arrest at the same time, if there is only articulable reasonable suspicion.

Cases after Shepard have considered various factual scenarios, each sustaining suspensions with less evidence than the previous case, lowering the evidence required to sustain a finding of "reasonable grounds" and weakening the protection against unreasonable detention encompassed within the Fourth Amendment. E.g., Motor Vehicle Admin. v. Shea, 415 Md. 1, 997 A.2d 768 (2010)(seatbelt stop, moderate odor, performed standardized field sobriety tests, but no results given); Motor Vehicle Admin. v. Sanner, 434 Md. 20, 73 A.3d 214 (2013)(strong odor of alcohol coupled with having been involved in an accident). The most recent case from the Court of Appeals on this issue, Motor Vehicle Admin. v. Spies, 436 Md. 363, 82 A.3d 179 (2013), held that if the officer claims to detect a moderate odor of an alcohol beverage, reasonable grounds exist.

The holding in Spies is contrary to holdings from other states. For example, see Saucier v. State, 869 P.2d 483 (Alaska Ct. App. 1994) (slight weaving across line, "normal" odor of alcohol beverage, admission of couple drinks, and refusal of field tests); Keehn v. Town of Torrington, 834 P.2d 112 (Wyo. 1992) (summary judgment affirmed in suit against officer for releasing defendant who subsequently killed two people); State v. Kliphouse, 771 So.2d 16 (Fla. App. 2000) (unconscious motorcyclist who did not cause accident had odor of alcohol beverage); State v. Taylor, 444 N.E.2d 481 (Oh. App. 1981) (speeding and odor of alcohol beverage); People v. Royball, 655 P.2d 410 (Colo. 1982) (odor of alcohol alone, accident without fault established); but see, State v. Gillenwater, 980 P.2d 318 (Wash. App. 1999) (fatal accident, driver not at fault, odor of alcoholic beverage on both motorist and deceased passenger, three opened beer cans).

The Ohio Court of Appeals, in State v. Taylor, 444 N.E.2d 481 (Ohio Ct. App. 1981) stated:

The mere odor of alcohol about a driver's person, not even characterized by such customary adjectives as "pervasive" or "strong," may be indicia of alcohol ingestion, but is no more a probable indication of intoxication than eating a meal is of gluttony. For better or worse, the law prohibits drunken driving, not driving after a drink.
Id. at 482.

In City of Hutchinson v. Davenport, 54 P.3d 532 (Kan. App. 2002), the Kansas Court of Appeals held that the odor of an alcoholic beverage on the defendant's breath, without any other evidence was insufficient to support the stop of the defendant's vehicle. In that case the defendant drove to a local jail to secure bond for a friend who had been arrested. When he left a police officer, who detected the odor of an alcohol beverage on the defendant's breath, advised him not to drive and the defendant agreed. Not long afterward, the same officer saw the defendant driving his vehicle and stopped him.

The court stated:

Even with the lesser requirements of the reasonable suspicion standard, the trial court properly determined that there were no articulable facts which create a suspicion that Davenport was driving while under the influence or was involved in any other criminal activity. Even if we combine the knowledge of Henderson and Miller, the only facts suggestive of unusual conduct are that Davenport had alcohol on his breath and that he stated he was walking. Neither of these facts by themselves or together create a reasonable suspicion that justified Miller stopping Davenport in the absence of some indication that he was intoxicated and too impaired to drive.
The City cites many cases to bolster its argument that the stop was proper. In each situation where the court found the stop to be proper, however, there were some facts which indicated that the defendant had engaged in some illegal activity prior to being stopped. Here, no such facts exist. Alcohol on one's breath alone does not provide a reasonable suspicion to support a stop, nor does the statement by Davenport that he was walking.
Davenport, 54 P.3d at 535.

A chief danger of the lower standard and eased application of that standard is that a number of drivers who are not impaired will be stopped and detained, and as a result of reasons that may be consistent with innocence will refuse to submit to a breath test and will face license suspension and/or ignition interlock. In counsel's experience, people refuse for a myriad of reasons, including, but not limited to, misunderstanding the advice of sanctions provided by the police or being improperly induced by the officer to refuse the test. This was recognized by the Maryland State Bar Association Criminal Pattern Jury Instruction Committee in the jury instruction for refusal which states:

MPJI-Cr 4:10.5

Driving Under the Influence of Alcohol and Driving While Impaired by Alcohol -- Effect of Refusal to Submit to Blood or Breath Test

You have heard evidence that the defendant refused to submit to a test to determine [his] [her] [alcohol level] [the presence of drugs or a controlled dangerous substance]. You must first decide whether the defendant refused to submit to a test. If you find that the defendant refused to submit to a test, you must then decide whether this refusal is evidence of guilt. Refusal to submit to a test may be based on reasons that are consistent with innocence or other reasons that are consistent with guilt. In order to decide whether the defendant refused to submit to a test and what, if any, weight to give the refusal, you should consider all of the evidence in the case.

If § 16-205.1 were amended to replace the phrase "reasonable grounds" with "probable cause" in every location where it appears, the obligations imposed on police officers and protections available to drivers would be the same as is provided by the Fourth Amendment. Additionally, the danger that innocent drivers will be swept up in the broad drunk driving dragnet would be reduced.

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Heien v. North Carolina - Ignorance of the law is no defense - unless you are a cop

December 23, 2014

Last week the Supreme Court decided the case of Heien v. North Carolina. In an 8-1 decision, the Court decided that even though an officer stopped a driver for conduct that was later decided NOT to be illegal, that the officer's objectively reasonable belief that the conduct was illegal saved the stop from violating the Fourth Amendment. Surprisingly, some of the justices that can usually be counted on to protect the privacy rights of Americans, namely Justices Scalia (yes he is one of the better ones on Fourth Amendment issues), Ginsburg, Kagan, and, frequently Kennedy, failed to do so in this case. Only Justice Sotomayor dissented from the decision in Heien.

The Heien case dealt with what I will call the two versus three brake light issue. Many states enacted laws requiring two brake lights on cars and also laws requiring all equipment on a car to be working. The two brake light laws were enacted at a time when cars only had two brake lights. Since the enactment of these laws, many cars have been made with three brake lights. As is not uncommon, in many states the law has lagged behind technology. In those states, there has been a legitimate debate about whether a car with three brake lights, and one out, was in violation of the law.

In Heien, the officer stopped a car with three brake lights, and one out. Drugs were found in the car, which is why Heien challenged the stop. The trial court denied his motion to suppress and Heien appealed. Subsequently, the North Carolina Court of Appeals held that two working brake lights were all that was required and reversed. (Maryland requires three). The North Carolina Supreme Court reversed and upheld the conviction, even though the State did not challenge the intermediate court's ruling on the brake light law. So Heien appealed to the Supreme Court.

One might have thought that when the North Carolina intermediate appellate court ruled that Heine's vehicle was not in violation of North Carolina law, and that the ruling was not challenged, that it's conclusion that the stop was illegal would have been upheld, even though the quesstion was debatable at the time the officer stopped Heien. However, the Supreme Court ultimately held that because the officer's belief that Heien's vehicle was violating North Carolina law although wrong was objectively reasonable, the stop did not violate the Fourth Amendment. It is important to note that the Court did not say in Heien, as it has said in some cases, that although the officer violated the Fourth Amendment that the exclusionary rule should not apply where a statute or court decision requires the officer to act in a way that is later held to violate the Fourth Amendment. In Heien, the Court held that the officer's stop did not violate the Fourth Amendment.

The decision is troubling for a number of reasons. One is that frequently high court decisions get watered down or misunderstood by officers, prosecutors, and lower courts resulting in an overall diminution of our Fourth Amendment freedoms, and hence an increase in the number of times drivers observably violating no law will be stopped and detained by police, and the stops will later be upheld by courts. In the past, an officer could not rely on unsettled legal issues to avoid the application of the exclusionary rule to a search and/or seizure. As Justice Sotomayor points out, there is not really any support in prior cases for rewarding an officer's mistake of law. And there is little incentive for courts to resolve questions of law if they only need to decide if the officer's belief that the law was violated was "objectively reasonable."

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Stamm Featured in Member in the Spotlight Blog of the National College for DUI Defense

December 19, 2014

Leonard Stamm has been featured in the "Member in the Spotlight" blog of the National College for DUI Defense. It is reprinted in its entirety below:

Member in the Spotlight: Lenny Stamm


This week's Member in the Spotlight is Lenny Stamm of Greenbelt, Maryland. Lenny grew up in New Rochelle, New York. For four years he started as a goalie on the high school soccer team. Funny how life takes twists and turns, he was selected for the Program for Inquiry, Involvement and Independent Study (a gifted "school without walls" program) in which they made a visit to the United States Supreme Court barely arriving after it had just recessed only to return years later as the coauthor of some of the nation's most important DWI case briefs: Missouri v. McNeely, Melendez-Diaz v. Massachusetts, Bullcoming v. New Mexico. This gifted kid from New York grew up to become Maryland's most respected DWI/DUI lawyer earning the first annual Fred Bennett Zealous Advocacy Award by the Maryland Criminal Defense Attorney's Association (MCDAA). In October of this year, he was awarded the prestigious Legal Excellence Award for Advancement of Professional Competence by the Maryland Bar Foundation. For 12 years straight, he started and has put on the annual Maryland Criminal Defense Attorneys Association's Advanced DUI Defense Seminar, giving back to the Maryland bar and elevating its knowledge and practice level. The defense bar of Maryland is top rate and we can thank Lenny Stamm for his esteemed contributions. He also wrote the book. He is on his 8th volume of Maryland DUI Law.

So what peaked Lenny's interest in the law? A dream come true. Lenny's father was going to NYU night law school in 1955 but had to quit shortly after Lenny's birth that year. Little did he know that bundle of joy would fulfill his dreams and then some. Lenny earned his B.A. from Wesleyan University and ventured out on an interesting and rich path of varied life experiences before his dad suggested law school. Can Lenny relate to all people? You bet. Lenny has done everything from Olan Mills Photography phone solicitation, driving a daycare van and a taxi cab, cutting grass, selling chiropractic food supplements, being an insurance underwriter and assistant record buyer to playing guitar full-time in a rock band. Following his father's advice, Lenny graduated from the Catholic University Law School in Washington D.C. He interned for the DC Office of Consumer Protection, Maryland Court of Appeals Judge Rita Davidson, Prince George's County Circuit Court Judge Howard Chasanow and obtained a law clerkship with Horowitz, Oneglia, Goldstein, Foran and Parker to later work for and then partner with Alan Goldstein. They were involved in many high profile cases before Alan passed away with Lenny taking over the practice. Among these was the case of Lenny Bias, who died of a cocaine overdose shortly after his number one NBA draft pick by the Boston Celtics. Not too many people can say they literally dodged the bullet. Lucky for everyone and especially the legal community, Lenny survived a robbery shooting as he was walking the streets of DC in law school on a beer run. The bullet grazed a nerve and lodged in his neck. A 9 month pregnant woman witnessing the spectacle stopped her car and convinced Lenny to stop running after the shooter- still bleeding as he climbed in the back seat. In the high speed dash to the hospital, wouldn't you know they were stopped and the officer could not believe what was on his hands! Lenny was able to ID the shooter from a hospital gurney and the doctor mentioned it was just like Gunsmoke as he dropped the dislodged bullet in the pan! What does Lenny say about the experience looking back? "Life is precious and short, and we shouldn't take it for granted. Don't sweat the small stuff."

So often the "stuff" that matters is the toil, sweat and tears that are given with no remuneration. Lenny is a giver. He is a member of the National College for DUI Defense (General member 1999-2004), (Sustaining member 2004-05), (Regent since 2005 and current assistant Dean). He is also a member of the National Association of Criminal Defense Lawyers, a member of the Maryland Criminal Defense Attorneys' Association, a member of the Maryland Criminal Pattern Jury Instruction Committee, a member of the Maryland State Bar Association, a member of Prince George's County Bar Association, a member of the Montgomery County Bar Association, and a member of the American Civil Liberties Union and Amnesty International. Lenny is a frequent national speaker on DWI law and science by demand across the country and is very active and passionate about public defender training. In addition to his Maryland DUI textbook, he has published a number of articles in the Champion magazine (the magazine of the National Association of Criminal Defense Lawyers).

Lenny's DUI/DWI training goes without mention. He has received training on the overview of the Drug Recognition Expert (DRE) program, National Highway Safety Administration's (NHTSA) standardized field sobriety testing as both a practitioner and instructor, instruction on operation and maintenance for the Intoxilyzer 5000, and has attended the famed Borkenstein School for state experts as well as a 4 and half day course on gas chromatography.

In addition to the previously mentioned awards, Lenny has received the highest rating from Martindale-Hubbell - "AV Preeminent." He has also been listed in "Super Lawyers" and "Best Lawyers." Best Lawyer awarded Stamm "Lawyer of the Year" for 2015 in the area of DUI/DWI defense in the Washington, D.C. area. Because of his commitment to advocating for his clients, he also received the highest Avvo rating of a 10, which is considered "Superb."

You would think that Lenny spends all his time in his ivory tower of law to accomplish all that he does. However, his life outside the office is just as intense! In his free time Lenny is a guitar player in a blues and classic rock band that was formed in 1981. They are known as The Crimestoppers ( Bruce Springsteen's guitarist Nils Lofgren has even dropped by to play with them on set. Lenny met his wife Susan, of 30 years, through the keyboard player's girlfriend. Lenny enjoys running, and in classic Lenny style has taken it to the max finishing 5 marathons so far. He and Susan have 2 wonderful children: Michael who is a first year at Georgetown Law School, and Lauren who just graduated from Vassar.

Lenny can be described by those who know him as the embodiment of tolerance, open heartedness, and acceptance: all the traits of a true intellectual without even a hint of a character flaw. There are so many stories among our members of how when it got to the big leagues, the Supreme Court, Lenny was there to selflessly help and pave the path like no other. The National College is strong with Lenny Stamm at the helm and he guides the ship with a sound and steady hand and heart of wisdom and magnanimity for all. We at NCDD thank you Lenny for all you do and only wish one of these Presidents would see fit to put you on the Supreme Court! It would be most deserved.

In the wake of numerous pay for certificate specious "top lawyer" organizations and the unfortunate field of lawyer animosity resulting from an oversaturated market, Lenny lives up to the principles of William J.H. Boetcker. "Your greatness is measured by your kindness; your education and intellect by your modesty; your ignorance is betrayed by your suspicions and prejudices, and your real caliber is measured by the consideration and tolerance you have for others." Lenny never stoops to ignorance filled with suspicions and prejudices, he is always the classy advocate, wise teacher, and leader with welcome tolerance and encouragement for all. On behalf of all of us at NCDD, thank you Lenny. You are a true hero.
Posted by Mimi Coffey

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Marijuana and DUI - DREs required - Carboxyl THC does not prove impairment

November 20, 2014

With legalization and decriminalization of marijuana, and medical marijuana laws sweeping the country, police are stepping up enforcement of driving while impaired by drugs and controlled dangerous substances enforcement. In Maryland, these offenses are contained in Transportation Article, § 21-902(c) driving while impaired by drugs or drugs and alcohol to the extent that the driver is unable to drive safely and § 21-902(d) driving while under the influence of a controlled dangerous substance. The penalties can be up to 60 days in jail and/or a $500 fine and 8 points at the Motor Vehicle Administration (MVA) for the § 21-902(c) offense and up to one year and/or a $1000 fine and 12 points at the MVA for the § 21-902(d) offense.

In the typical DUI drugs case, the police officer stops a vehicle for erratic driving and detects some impairment in the driver. Breath testing excludes alcohol as a cause of the impairment and the officer calls in a specially trained officer called a Drug Recognition Expert. After performing a series of tests the DRE directs medical personnel to withdraw blood for testing at the State Police crime lab in Pikesville, Maryland. While the validity of the science of the so-called DREs is being litigated (see Drug Recognition Expert (DRE) Protocol is Junk Science Says Carroll County Circuit Court) Maryland law requires that only a DRE can request, require or direct a blood test to determine if any drugs are in the blood. This is an explicit requirement of Transportation Article, § 16-205.1(i)(2).

When the blood gets to Pikesville, the State Police crime lab does not test for THC or hydroxy THC, the psycho-active drug and its metabolite that are in the blood of a person who is high. Rather, the lab only tests (with respect to marijuana) for carboxy THC. This is a metabolite that can be present in the body for up to 30 days after using marijuana. As a result, the scientific consensus is that the presence of carboxy THC alone in the blood does not prove that a person is impaired by marijuana at the time of testing. For example, the Supreme Court of Arizona said last April in the case of State ex rel Montgomery v. Harris,

Because Carboxy-THC can remain in the body for as many as twenty-eight to thirty days after ingestion, the State's position suggests that a medical-marijuana user could face prosecution for driving any time nearly a month after they had legally ingested marijuana. Such a prohibition would apply even when the driver had no impairing substance in his or her body and notwithstanding the State's ability to test both for THC, the primary substance that causes impairment, and Hydroxy-THC, the metabolite capable of causing impairment.

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Stamm receives award from Maryland Bar Foundation for Advancement of Professional Competence

October 19, 2014

On Thursday, October 16, 2014, Leonard Stamm received from the Maryland Bar Foundation, the prestigious Legal Excellence Award for Advancement of Professional Competence. He was nominated by Pilar Nichols. Other award recipients were: Steven P. Lemmey Legal Excellence Award for the Advancement of Public Service Responsibility to Steven P. Lemmey (posthumously, accepted by Ms. Lemmey), nominated by Judge Glenn Harrell; Legal Excellence Award for the Advancement of Public Understanding of the Law to The Honorable Pamila J. Brown, nominated by Judge Barbara Kerr Howe and Rick Miller; Legal Excellence Award for the Advancement of Unpopular Causes, to Professor Michael Millemann, nominated by Judge Dennis Sweeney; and, Legal Excellence Award for the Advancement of the Rights of the Disadvantaged, to the Homeless Persons Representation Project (accepted by Antonia Fasanelli), nominated by Natalie McSherry.

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National College for DUI Defense Holds Its Summer Session

July 25, 2014

The National College for DUI Defense is holding its summer session at the Charles Hotel in Cambridge, Massachusetts with seminars and breakouts at the Harvard Law School. The session features lectures on: Crafting Your Opening Statement by Denis M. DeVlaming; Handling Injury & Death Cases: Things You Need to Do by Edward L. Fiandach; Out-of-State Licenses: Avoiding Disaster by Jennifer G. Ammons; Impeaching the Breath Test: A Low Budget Approach by Michael M. Hawkins assisted by Anthony D. Palacios; Jury Psychology: Finding Their "Not Guilty" Button by Patrick T. Barone; SFSTs: New Manual-New Opportunities by James Nesci; New Manual-Cross-Examination Demo by Joseph P. St. Louis assisted by Anthony D. Palacios; Cross of Their Extrapolation Expert by Ronald L. Moore; The "Just Say No Case": Refusals at Every Stage of The Arrest by Donald J. Ramsell; Cross of the Blood Test Technician: A Low Budget Approach by Andrew Mishlove; DUI Defense: Ethics & Excellence by C. Andrew Carroll DUI Complications: Getting Into Canada by Marisa Feil, a Keynote Address Roger J. Dodd, and Dean's Address by Stephen Jones.

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Stamm Goes On Al Jazeera News to Discuss Missouri v. McNeely

June 8, 2014


On last Thursday, June 5, 2014, Leonard Stamm went on Al Jazeera America to discuss last year's Supreme Court decision in Missouri v. McNeely. He was interviewed by reporter John Henry Smith.

JHS: Drivers stopped on suspicion of driving under the influence in Tennessee are sometimes forced to submit to a blood test. The State allows officers to demand a driver give blood if they refused to take a breathalyzer test. Tennessee is not the only place where this is being done. Wyoming and some parts of Atlanta have similar laws on the books. And Georgia is considering allowing it statewide. It's a controversial practice that critics say is a violation of a person's right to privacy. Joining us to discuss the legal implications is Leonard Stamm, a criminal defense attorney, and executive committee member with the National College for DUI Defense. He's in Washington, D.C. this morning. Mr. Stamm, how can law enforcement pull people over suspected of DUI and demand a blood sample. Is that not a violation of a person's Fourth Amendment right against unreasonable searches and seizures?

LRS: Well last year the Supreme Court decided the case of Missouri versus McNeely, and the Supreme Court held that before police can take blood from somebody that unless there's some kind of emergency that impedes their ability to get a warrant they have to call a judge and get a warrant before they can stick a needle into and pierce somebody's skin to get a blood sample.

JHS: Well in Tennessee, if a driver refuses a breathalyzer or a blood test, police officers can get a judge to issue the warrant and force the person to comply. Can a suspect be physically restrained and forced to give blood?

LRS: Well yes they can but it has to be done in a medically appropriate manner. So I think that if the police officer is holding somebody down on the side of the road and poking them with a needle, or has been documented in other news stories, on the floor of the jail or put in a chair and have a hood put over their head, I don't think courts will approve those kinds of procedures. But if it's done in a medically appropriate manner - what the Constitution requires, what the Fourth Amendment requires is that before police do it they just can't poke somebody without getting a judge to approve it first so if a judge approves it, then the second question is, the first question is: is there probable cause for the search. If the judge approves it, there's going to be a requirement that they perform the test in a medically appropriate manner.

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Chipping Away at Our Rights - Deering v. MVA

May 21, 2014

The Court of Appeals announced its decision today in Deering v. MVA. When a driver is arrested for DUI and asked to take a breath or blood test in Maryland, and the driver's reasonable request to consult with a lawyer before deciding is denied, the driver may not argue at the driver license suspension hearing that the denial of counsel requires not suspending the driver's license.

The Court noted that the cases relied upon by the Court of Appeals in its 1984 decision, Sites v. State, which recognized the right to consult with counsel under the federal Constitution's 14th Amendment's due process clause, have mainly lost their authority. However, Sites also rested on the state due process clause. The Court said:

Although Sites rested its holding on both the Fourteenth Amendment of the federal Constitution and Article 24 of the Maryland Declaration of Rights, its analysis focused almost entirely on cases construing the federal Constitution. Given the scarce support for that analysis of the due process clause of the federal Constitution, the Sites Court's rationale rests on a precarious footing. Of course, because the Sites decision was also based on Article 24, it is conceivable that this Court could hold that the State constitution confers such a right, even if the federal Constitution does not. Cf. DeWolfe v. Richmond, 434 Md. 444, 76 A.3d 1019 (2013) (holding that an indigent defendant in a criminal prosecution is entitled, under Article 24 of the Maryland Declaration of Rights, to State-furnished counsel at an initial bail hearing before a District Court commissioner without deciding whether that right also emanates from the due process clause of the Fourteenth Amendment). In any event, we need not decide the continuing vitality of Sites to decide this case. Even if Sites remains good law under a State constitutional theory, the ultimate question before us is whether the violation of any such right affects the imposition of an administrative sanction under TR §16-205.1.

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Navarette v. California - The Court Giveth in McNeely and Taketh in Navarette

April 24, 2014

Just last term the United StatesSupreme Court held in McNeely v. Missouri, that a warrant is presumptively required before obtaining a blood sample from a drunk driving supsect. However this week, in Navarette v. California, the United States Supreme Court, in a 5-4 decision, held that a police officer does not have to confirm an anonymous tip of reckless driving before stopping a vehicle.

A woman who actually identified herself on a 911 call, but was not identified in court, said she had been run off the road by a truck, and provided a description and tag number. An officer located the truck and followed it without observing any other traffic violations. A five member majority found that even though no other violations were observed by the police officer, the officer had articulable reasonable suspicion of drunk driving under the totality of the circumstances. The Court suggested that if the information provided by the caller had been less specific or the offense alleged less serious, that the information would have been insufficient to justify the stop.

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McNeely Continued - Warrantless Breath Tests Violate the Fourth Amendment

March 25, 2014

In Missouri v. McNeely, the Supreme Court held: "In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so." At first blush, it appeared the main impact of the decision would be in the few jurisdictions where warrantless blood tests were the norm before April 17, 2013, the date McNeely was decided. But upon further reflection, it appears that McNeely requires the suppression of all warrantless breath tests.

Warrantless searches are presumptively unreasonable. Where there is a warrantless search, the government has the burden of proving the legality of the search, that it was conducted pursuant to a recognized exception to the warrant requirement, such as exigent circumstances, consent, and search incident to an arrest. However, none of those exceptions to the warrant requirement help the State when it comes to breath tests.

The case of Skinner v. Railway Executives Ass'n made it clear that a breath test is a search. McNeely held that exigent circumstances did not exist in every DUI case to allow police to dispense with obtaining a warrant to obtain blood. If it takes a comparable amount of time to obtain a breath test as it does to obtain a blood test, then exigent circumstances cannot be claimed to justify not getting a warrant for a breath test.

Another argument the State could make is that under Maryland's implied consent law the defendant consented to take a test. However, the decision to submit is only after the defendant is warned that a lengthy license suspension may be imposed if he or she refuses and is also told that a refusal may carry more jail time. These implied consent statutes contain a coercive character that would likely invalidate the voluntary consent required by the Fourth Amendment. A number of states have agreed with that analysis.

The final argument the State could make is that the search was conducted incident to an arrest. However, the Supreme Court limited the applicability of search incident to arrest in Arizona v. Gant. A search incident to arrest is for officer safety and may not be conducted after arrest. The breath test in DUI cases is conducted at the police station long after the arrest. So this exception is unlikely to help the State either.

Continue reading "McNeely Continued - Warrantless Breath Tests Violate the Fourth Amendment" »

Cops Gearing Up For St. Paddy's Day - Beware!!!

March 11, 2014

Monday, March 17 is St. Patrick's Day and the police will be ready so beware. A Prince George's County Police press release stated:

PGPD to Conduct St. Patrick's Day Sobriety Checkpoint.

Last year, nearly 550 drivers were arrested for DUI across Maryland on the St. Patrick's Day weekend. We're committed every day to protecting our citizens against those who choose to drink and drive but especially on what has proven to be a dangerous holiday on the roads.

The Special Operations Division will conduct a sobriety checkpoint next Monday, March 17, 2014, from 6:00 pm to 12:00 am. The Maryland State Police will join our officers in stopping drivers in the 7900 block of Annapolis Road in Lanham.

The PGPD wants to ensure revelers rely on more than luck to make it home safely on St. Patrick's Day. If you're planning an evening of celebration, please plan ahead. Choose a designated driver, commit to calling a cab or try SoberRide. The program will run on St. Patrick's Day from 4:00 pm - 4:00 am. It offers free cab rides. The number is 1-800-200-TAXI.

For more information, contact the Prince George's County Police Department's Media Relations Division at (301) 772-4710.

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To Plead Or Not To Plead (Guilty)? - That Is The Question

February 8, 2014

In Maryland courts, hundreds of DUI (driving under the influence) and DWI (driving while impaired) cases are heard every day. The vast majority of cases are resolved by the defendant pleading guilty on the terms offered by the prosecutor whether the defendant has a lawyer or not. However, in state court, judges are prohibited from punishing a defendant who elects to plead not guilty. It is unusual in Maryland for a prosecutor to offer a defendant a result that is better than what would happen anyway if the case went to trial and the defendant lost. So why not roll the dice? The defendant has nothing to lose.

An example of this occurred yesterday in a District Court trial of mine. My client had a number of prior offenses, and although the most recent was over 20 years ago, he did have some exposure to jail. With some judges he was facing a lot of jail time. His breath test was very high. The prosecutor offered him a plea to driving under the influence of alcohol and she would recommend that he be sent to jail. This was the same thing he would get after a trial if we lost, which I fully expected! However, trials sometimes yield surprises.

The officer testified that he received a call for an accident and proceeded to the location. When he arrived he spotted a Dodge truck that looked like the description he received and pulled his car in front of it so it could not leave the parking lot it was in. The officer could not remember whether the truck was in motion or stopped. I objected because the State had never informed us what the original description was. Under Maryland discovery rules, the State is required to provide all information relevant to any searches and seizures. I was moving to suppress all the evidence seized as the result of an illegal stop. The judge took a break to consider the objection.

When the judge came back, he granted my motion, but not for the reason I argued. He said that he was granting the motion beoause the officer did not indicate who was at fault in the accident and that he had not testified that he had been told that the defendant was uncooperative and had failed to exchange information. So he had no evidence that the officer was in possession of any information indicating the defendant had committed any crime during the accident or after it, and granted the motion to suppress, followed by a motion for a judgment of acquittal. Not guilty.

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