Maryland DUI Lawyer Blog

The Supreme Court today granted certiorari in three cases Birchfield v. North Dakota (14-1468); Bernard v. Minnesota (14-1470); and Beylund v. North Dakota (14-1506).  These cases raise the question left open after the Court’s decision in Missouri v. McNeely, 133 S.Ct. 1552 (2013): can a state make the refusal to submit to a breath or blood test for alcohol a crime, punishable by imprisonment?

Police are presumptively required to obtain a warrant before obtaining a blood test for alcohol.  Missouri v. McNeely, 133 S.Ct. 1552 (2013).  The Supreme Court will now decide whether a warrant is required for a breath test, whether the refusal to consent to a breath or blood test can be made a crime, and whether advice that refusal is a crime carrying a possible jail sentence renders any consent to submit to a breath or blood test coerced and involuntary.  However, relevant authority and review of Supreme Court cases compels an answer of yes – a warrant is required for a breath test, no – a refusal to consent to a breath test cannot be made illegal without violating the Fourth Amendment, and yes, advising a suspect that refusal is a crime punishable by imprisonment renders any consent given coerced and involuntary.

Warrantless searches are presumptively unreasonable.  Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).  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.  In United States v. Reid, 929 F.2d 990 (4th Cir. 1991), the Fourth Circuit held that a warrant was not required to conduct a breath test during a DUI investigation because a breath test was a permissible search incident to an arrest and was conducted under exigent circumstances.  However, Reid was overruled by McNeely, to the extent that it relied on exigent circumstances. United States v. Brooks, No. CRIM. PWG-14-0053, 2014 WL 2042028, at *5 (D. Md. May 16, 2014).  The search incident rationale of Reid is also no longer valid due to the Supreme Court decisions in Arizona v. Gant, 129 S.Ct. 1710 (2009) and Riley v. California, 134 S.Ct. 2473 (2014).  The final possible applicable exception to the warrant requirement is consent.  However, where, the “consent” is obtained by a threat of incarceration, the consent is coerced and is not voluntary.  State v. Won, 2015 WL 7574360, — P.3d — (Haw. 2015).

If you are facing criminal or traffic charges in Maryland state or federal court, call Leonard R. Stamm of Goldstein & Stamm, P.A. at 301-345-0122 for a free consultation.

Leonard R. Stamm
Goldstein & Stamm, P.A.
6301 Ivy Lane, Suite 504
Greenbelt, MD 20770
301-345-0122
(fax) 301-441-4652
www.dwiattorneymaryland.com
www.marylandduilawyer-blog.com

StammBook.jpg

Author: 2015 update to Maryland Evidence: State and Federal by Professor Lynn McLain (coming this fall)

“Patience, Perseverance, Persuasion”

 

This week Donald Trump, the leading Republican contender for President, proposed banning all Muslims from entering the country, as one of his solutions to deal with ISIS inspired terrorism in the homeland.  This bigoted and anti-American proposal, on top of his anti-Mexican, misogynistic, and crude comments have only enhanced his standing in the polls, to the shame of us all.  His reliance on demonstrably false information to support his claims is no hindrance to him or his followers.  In response, I commend to you a piece by Kareem Abdul-Jabbar in Time Magazine.  His article, What Donald Trump and ISIS Have in Common, explains how Trump’s proposal is against everything we stand for, and is unconstitutional to boot.

We have seen this before.  History has taught us that what starts out as harmful speech targeting a race, religion, or ethnic group, frequently evolves into discriminatory behavior with real consequences to members of the targeted group.  This type of damage has occurred too many times to recount, at its extremes leading to the worst kinds of violence and genocide.  The appeal to emotions, rather than reason, can entice the best of us to do bad things.  That is why we are so fortunate to live in a country governed by the rule of law with constitutionally protected freedoms and rights.

When a sizeable portion of the electorate is impelled by fear or demagoguery to act lawlessly or even to change the laws to target a race, religion or ethnic group, the Constitution provides a brake.  Similarly, when the public’s reaction to crimes impels the State to target an individual who everyone “knows” is the perpetrator or has committed a crime, the law requires evidence, proof beyond a reasonable doubt, and honor to our rules requiring adherence to First, Fourth, Fifth, and Sixth Amendment protections that minimize the risk that an innocent person would be convicted.  Freedom of speech, religion, and assembly, against unreasonable searches and seizures, against compelled self-incrimination, the right to counsel, notice, jury trials, due process and equal protection of the laws protects us all.  Our Constitution minimizes the risk that a lynch mob led by the likes of Donald Trump would ever subvert the fairness and even handedness of our laws or our criminal justice system.  We can only hope that the Constitution continues to protect us as we face new challenges posed by cynical or mindless opponents.

If you are facing criminal or traffic charges in Maryland state or federal court, call Leonard R. Stamm of Goldstein & Stamm, P.A. at 301-345-0122 for a free consultation.

Leonard R. Stamm
Goldstein & Stamm, P.A.
6301 Ivy Lane, Suite 504
Greenbelt, MD 20770
301-345-0122
(fax) 301-441-4652
www.dwiattorneymaryland.com
www.marylandduilawyer-blog.com

StammBook.jpg

Author: 2015 update to Maryland Evidence: State and Federal by Professor Lynn McLain (coming this fall)

“Patience, Perseverance, Persuasion”

The Hawaii Supreme Court announced its decision today in State v. Won.  The court held that where a suspect in a DUI case is told that it is a crime to refuse to submit to an alcohol test, that consent to submit to the test is coerced and invalid because it is not voluntary.   The Fourth Amendment requires that searches be conducted pursuant to a search warrant or the government must rely on an exception to the warrant requirement.  In most DUI cases, the government relies on consent to justify warrantless breath and blood tests.  However, some jurisdictions have criminalized refusal to submit to a test, providing that refusal can result in a jail sentence.

The Hawaii court said:

Where arrest, conviction, and imprisonment are threatened if consent to search is not given, the threat infringes upon and oppresses the unfettered will and free choice of the person to whom it is made, whether by calculation or effect.30 See id. at 261-63, 925 P.2d at 829-31 (finding that a permissive response to a request to search the defendant resulted only from “inherently coercive” circumstances that were “calculated to overbear [the defendant’s] will”); Pauʻu, 72 Haw. at 508, 824 P.2d at 835 (same). Thus, the threat of the criminal sanction communicated by the Implied Consent Form for refusal to submit to a BAC test is inherently coercive.  [Footnotes omitted].

The court also said:

Thus, as in Nakamoto, it is clear that Won had no other alternative to avoid prosecution for the refusal offense but to submit to the search; as in Puaʻa, withholding consent was futile, as any other course would have resulted in Won’s commission of a crime. Consequently, the position in which Won was placed, because of the criminal sanction for refusal, the forced selection between constitutional rights, and the potential significant punishment the sanction entailed, was inherently coercive. See Trainor, 83 Hawaiʻi at 263, 925 P.2d at 831; Ramones, 69 Haw. at 405, 744 P.2d at 517; Shon, 47 Haw. at 166, 385 P.2d at 836.

As the coercion engendered by the Implied Consent Form runs afoul of the constitutional mandate that waiver of a constitutional right may only be the result of a free and unconstrained choice, the choice presented to Won compromised the values of individual dignity and personal autonomy protected by article I, section 7 of the Hawaiʻi Constitution. For this reason, Won’s election on the Implied Consent Form to submit to a BAC test is invalid as a waiver of his right not to be searched.  [Footnotes omitted].

In Maryland, there are numerous areas under the jurisdiction of the National Park Service where 36 CFR § 4.23 makes refusal to submit to a breath test a crime punishable by up to six months in jail and/or a $5,000 fine.  In Maryland state court, refusal carries a possible enhancement of 60 days in jail if the defendant is found guilty of driving under the influence or while impaired. According the decision and reasoning of the Hawaii Supreme Court, all warrantless breath and blood tests in Maryland obtained by consent are illegal and in violation of the Fourth Amendment!

Leonard R. Stamm has been making this argument without success in federal court.  See United States v. Millner, 2015 WL 3557546 (D.Md. 2015)(not reported); United States v. Muir,   2015 WL 2165570  (D. Md. 2015)(not reported).  However, Won gives credence to Stamm’s arguments and merits a second look by state and federal courts.

If you are facing criminal or traffic charges in Maryland state or federal court, call Leonard R. Stamm of Goldstein & Stamm, P.A. at 301-345-0122 for a free consultation.

Leonard R. Stamm
Goldstein & Stamm, P.A.
6301 Ivy Lane, Suite 504
Greenbelt, MD 20770
301-345-0122
(fax) 301-441-4652
www.dwiattorneymaryland.com
www.marylandduilawyer-blog.com

StammBook.jpg

Author: 2015 update to Maryland Evidence: State and Federal by Professor Lynn McLain (coming this fall)

“Patience, Perseverance, Persuasion”

Today the New York Times featured on its front page a story about a Baltimore woman who had to endure a $25,000 bond, numerous court appearances, a suspended drivers’ license, and 34 days in the Baltimore City Jail for a first offense DUI with a 0.09 BAC reading: On Probation Lives Can Run Far Off Track – A Maze of Fines, Court Dates and Penalties by Shaila Dewan.  The judge assumed the defendant was a problem drinker without first getting an evaluation and ordered three AA meetings a week as well as required permission for her to move.  Failure to request permission before attempting to move was the first alleged violation of probation.  The failure to provide proof of all of the required AA meetings landed her in jail for 34 days with a $5000 bond she couldn’t afford, before she saw a judge.  The judge gave her a conviction which led to a six month driver license suspension.

The article quoted Leonard R. Stamm.

For a woman of Mrs. Hall’s weight, assuming drinks were consumed over a four-hour period, the difference between 0.06, considered “neutral,” and 0.09 would have been about one glass of wine, according to Leonard R. Stamm, a Maryland defense lawyer who specializes in drunken-driving cases.

And:

Drunken-driving penalties vary widely depending on the judge, but Mr. Stamm said a typical sentence for a first offense might be a year of unsupervised probation. Most judges will offer what in Maryland is called “probation before judgment,” or P.B.J., in which a defendant’s guilty plea is set aside. If the defendant violates probation, the judge may reimpose the conviction and sentence the person under the original offense — in Mrs. Hall’s case, up to 60 days in jail. If the defendant is successful, she avoids a criminal conviction.

The article also acknowledged what breath test experts have known for years:

The officers arrested Mrs. Hall and took her to jail, where she agreed to take a breathalyzer test.  Again, she ran into trouble. She failed three times to blow hard enough into the machine. Breathalyzers can be more difficult, and less accurate, for people as short as Mrs. Hall, who is five feet tall, because they have less lung capacity than average.

If you are facing criminal or traffic charges in Maryland state or federal court, call Leonard R. Stamm of Goldstein & Stamm, P.A. at 301-345-0122 for a free consultation.

Leonard R. Stamm
Goldstein & Stamm, P.A.
6301 Ivy Lane, Suite 504
Greenbelt, MD 20770
301-345-0122
(fax) 301-441-4652
www.dwiattorneymaryland.com
www.marylandduilawyer-blog.com

StammBook.jpg

Author: 2015 update to Maryland Evidence: State and Federal by Professor Lynn McLain (coming this fall)

“Patience, Perseverance, Persuasion”

 

On Saturday, July 25, 2015, Leonard R. Stamm became the Dean of the National College for DUI Defense. At the annual summer session, held at Austin Hall at Harvard Law School (the College is not affiliated with Harvard Law School, it just rents space), before lunch, Stamm gave the Dean’s Address.  Also in attendance was Professor Alan Dershowitz, who answered questions about the future of the criminal justice system.

The three day summer session featured lectures by Larry Taylor, James Farragher Campbell, Tommy Kirk, Jim Nesci, Joe St. Louis, Mimi CoffeyPaul Homoly, Howard Nations, John Henry Hingson, Scott Joye, Bell Island and Jessica Phipps.   Breakout sessions were also held where students were able to refine their skills on opening statements and cross-examination of police officers.

If you are facing criminal or traffic charges in Maryland state or federal court, call Leonard R. Stamm of Goldstein & Stamm, P.A. at 301-345-0122 for a free consultation.

Leonard R. Stamm
Goldstein & Stamm, P.A.
6301 Ivy Lane, Suite 504
Greenbelt, MD 20770
301-345-0122
(fax) 301-441-4652
www.dwiattorneymaryland.com
http://www.marylandduilawyer-blog.com
marylandduilaw@gmail.com
Dean, National College for DUI Defense

Author: West’s Maryland DUI Law

StammBook.jpg

The Court of Appeals announced its decision in Norton v. State today.  I was privileged to have been local counsel on the amicus brief filed by the Innocence Network in this case.  The case was a win for Norton, but more importantly, it was a win for all defendants who wish to confront scientific evidence offered against them in court.

The rules governing application of the Confrontation Clause have been changing over the past few years.  A series of cases had helped to expand the ability of defendants to confront scientific evidence: Crawford v. Washington, Melendez-Diaz v. Massachusetts, and Bullcoming v. New Mexico.  These cases required the State to produce in court a chemist who actually tested a defendant’s blood in a DUI case.  I was also privileged to have helped to write the amicus brief filed in Bullcoming by the National Association of Criminal Defense Lawyers and the National College for DUI Defense.

Unfortunately, in Williams v. Illinois, the Supreme Court backtracked and ruled that in a DNA case, the State did not have to produce the analyst.  However, there was no majority for what became a plurality opinion of four justices.  There were also four justices in dissent.  The deciding vote was cast by Justice Thomas, who agreed with the dissenting justices with respect to their reasoning but voted to not require confrontation because the document stating what the DNA results were was not sufficiently formal.  This confusing alignment of justices brought into question what rule should be applied by the lower courts.

The use of such a rigid formality requirement meant that the least reliable statements, the ones that are unsworn and prepared with less effort, would be admitted without being confronted. Only the most reliable, sometimes sworn, and most carefully prepared statements are confronted. Being able to confront only the more reliable scientific statements turns logic on its head. As a result of the diminution in the ability to cross-examine scientific documents and processes, the risk of convicting the innocent was increased.

In Derr v. State (Derr II), the Court of Appeals adopted Justice Thomas’s reasoning even though none of the other eight justices agreed with him.  In Norton, the Court of Appeals recognized that none of the other courts looking at this question took their point of view.  They broadend the class of statements for which confrontation could be required.

Under Norton II, the Court of Appeals announced a three-part test for determining whether a statement is testimonial. First the court should consider if the statement is sufficiently formal under Justice Thomas’s definition in Williams; second, the court should consider if qualifies under Justice Alito’s opinion in Williams in that it has “the primary purpose of accusing a targeted individual;” or, third, the court can conclude the statement is sufficiently analogous to the statement held to be testimonial in Bullcoming. While this approach is certainly an improvement to the approach the court took in Derr II, in this author’s opinion, it is still too restrictive to sufficiently ensure confrontation of witnesses who should be required to testify in the State’s case-in-chief under Melendez-Diaz and Bullcoming.  It is a huge step forward though.

If you are facing criminal or traffic charges in Maryland state or federal court, call Leonard R. Stamm of Goldstein & Stamm, P.A. at 301-345-0122 for a free consultation.

Leonard R. Stamm
Goldstein & Stamm, P.A.
6301 Ivy Lane, Suite 504
Greenbelt, MD 20770
301-345-0122
(fax) 301-441-4652
www.dwiattorneymaryland.com
http://www.marylandduilawyer-blog.com
marylandduilaw@gmail.com

Author: West’s Maryland DUI Law

StammBook.jpg

 

 

 

In this blog, I want to weave a couple of strands of thought together here on the Fourth and Fifth of July, as I complete the 2015 update for the 8th edition of my Maryland DUI Law.

As defense lawyers, we are trained to look for the good facts in our cases, and the good traits of our clients, so that we may use the good to persuade judges and juries at trial, and judges at sentencing. What we find is that there are very few people that are all good or all bad. At the same time many of us, through one path or another, end up advocating on particular issues. The issues we may end up being most involved with are not necessarily the most noble, but with so many issues and so little time, we must pick and choose.

Two issues that I am particularly proud of having had the opportunity to argue for are Fourth Amendment issues, the constitutional right to be free from unreasonable and/or illegal searches and seizures, and the Sixth Amendment right of confrontation, guaranteeing that witnesses testifying against our clients be present in the courtroom to be cross-examined. I helped to write amicus briefs in both the Fourth Amendment case of Missouri v. McNeely, and the Sixth Amendment case of Bullcoming v. New Mexico. In McNeely, the Supreme Court held that dispensing with a warrant to obtain a blood sample in a DUI case should never be the norm. In Bullcoming, the Supreme Court held that the actual chemist who tested the defendant’s blood must be present in court for cross-examination. These are important cases, and the government and many lower court judges are doing everything they can to work around them.

Back to Justice Scalia. Justice Scalia has earned the enmity of reporters and commentators for his backward stance on many social issues. He has been the bane of liberals for many years. See Bush v. Gore. I don’t disagree with those sentiments. But two issues he has been remarkably good on, the Fourth Amendment and the Sixth Amendment. While he is no “Notorious RBG” (Ruth Bader Ginsburg) he has been a strong and consistent advocate for limiting the government’s power to invade our privacy and search, and for allowing maximum confrontation of government witnesses. He has joined and on occasion actually led the liberal wing of the court, currently the three female justices, in many cases on these issues, to name a few, the majority in Melendez-Diaz v. Massachusetts, Bullcoming v. New Mexico, and Missouri v. McNeely, and the dissenting justices in Williams v. Illinois. (Justice Breyer has deserted us on some of these).  So while Justice Scalia may not be an angel, neither is he the devil. On Fourth Amendment search and seizure issues and Sixth Amendment Confrontation Clause issues, he is one of our best friends.

If you are facing criminal or traffic charges in Maryland state or federal court, call Leonard R. Stamm of Goldstein & Stamm, P.A. at 301-345-0122 for a free consultation.

Leonard R. Stamm
Goldstein & Stamm, P.A.
6301 Ivy Lane, Suite 504
Greenbelt, MD 20770
301-345-0122
(fax) 301-441-4652
www.dwiattorneymaryland.com
http://www.marylandduilawyer-blog.com
marylandduilaw@gmail.com

Author: West’s Maryland DUI Law

StammBook.jpg

 

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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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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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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