Many people will remember the nurse in Utah who refused to draw blood in a DUI case under directions from a police officer and was arrested.  She subsequently settled a lawsuit for $500,000 and the officer was fired.  As a result the Utah legislature tried to fix the problem.

In Anne Arundel County doctors and nurses have also refused to follow illegal directions from police officers.  In response, bills were introduced in the Maryland Senate and Maryland House of Delegates to try to fix the problem. The bill would require qualified medical persons to withdraw blood where the driver did not consent to a test after an officer developed reasonable grounds (defined as reasonable articulable suspicion) to believe a person was driving while impaired by alcohol or drugs and there was an accident resulting in a fatality or life threatening injury.

The problem is that the Supreme Court has held in two cases, Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) and Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), that before police may direct a qualified medical person to withdraw blood the officer must have probable cause and a warrant, unless an exception to the warrant requirement such as exigent circumstances or consent exists.  However, not every case involving a fatal or life threatening injury will involve exigent circumstances.

The National College for DUI Defense held its Winter Session in Atlanta this past week.  The program was titled “Prescription for Disaster” on the topic of defending DUI cases involving prescription drugs.  The speakers included Tony Palacios and Ron Lloyd on “Learn What the Cops are Taught: Drugs That Impair Driving & ARIDE Overview for Lawyers;” Jay Tiftickjian on “What if it Becomes Legal in My State? Navigating Through the Haze of Prescription and Legalized Marijuana;” Dr. Fran Gengo on “An Expert’s Opinion: The 3 Most Important Things Lawyers Need to Know About Prescription Drug DUI Cases;” MIchael Nichols spoke on “Not Your Father’s DUI: Unusual Aspects of Defending DUI Drug Cases;” Erin Gerstenzang spoke about “Ethically Avoiding the Personal & Professional Disaster: Client Management Before, During and After Court;” Dr. James O’Donnell spoke about “How to Investigate and Prepare to Challenge the State’s Expert in a DUI Drug Case:”  Dr. Randall Tackett spoke about “The Opioid Crisis in America;” William C. “Bubba” Head spoke about “Waking Up to Disaster: Defending the Ambien Case and other Sleep Driving Issues;” Doug Murphy covered “Challenging Drug Recognition Experts;” and Flem Whited spoke about “Dr. Whited’s Rx to Win a DUI Drug Case.”

On January 3, 2018, Leonard Stamm gave presentation to the Prince George’s County Public Defenders in Hyattsville on “Drug Recognition ‘Experts.'”

If you are charged with a state or federal traffic or criminal case, call 301-345-0122 for a free consultation.

Under current Maryland law, if a driver is arrested for a DUI, he or she will be asked to submit to a breath test for alcohol.  If the result is 0.08 or more but less than 0.15, the person faces a driving license or privilege suspension of 180 days.  If at a hearing challenging the suspension, the suspension is sustained, the Administrative Law Judge (ALJ) holding the hearing has discretion to allow the driver to drive to and from or during the course of employment, alcohol education, education, and for medical purposes for the driver or family members.  If the driver blows .15 or more, the suspension is also 180 days for a first offense and 270 days for a subsequent offense, but the only option for the ALJ is to allow the driver to drive  only with an ignition interlock in the car for one year.  Similarly, if the driver refuses to take a test, the penalty on a first offense is 270 days or two years for a subsequent offense, and the ALJ can only allow the driver to drive with an ignition interlock in the car for one year.

Although these suspensions may be challenged at an administrative hearing, if the challenge fails, the ALJ’s options are limited as noted above.  However, the Maryland Motor Vehicle Administration does not allow out of state drivers to participate in the Ignition Interlock System Program.  This critically affects drivers who live outside of Maryland but work here.  The only option is to challenge the suspension, and appeal any defeats.  But if that effort fails, the driver is SOL.

Hopefully the legislature will remedy this situation soon.  Stay tuned.

This week, my friend, Brian Karem, editor of the Montgomery Sentinel and writer for Playboy, after months of abuse of the media by Trump, finally fought back. Calling out the President’s lies are not “fake news.”  The press is not the “enemy of the people.”

President Trump, by calling the news media “the enemy of the people” and calling facts “fake news” is attacking all of us. Thursday and Friday he attacked Joe Scarborough and Mika Brzezinski.  Today he released a wrestling video, showing him punching and wrestling a person with a CNN logo on his head.  He calls CNN FNN – fake national news.

There is a reason that freedom of the press is enshrined in the First Amendment. The Founders set up an elaborate system of checks and balances that is being tested as never before, at least during our lifetimes.  With a Congress unwilling to restrain the executive, willing to steal Supreme Court seats, an executive that repeatedly lies, insults, and bullies his opponents, an independent counsel that could be fired as soon as Trump thinks he can get a way with it, and a president that is unwilling or unable to defend the country against a Russian cyber attack, the media is our last line of defense.

Yesterday, the Supreme Court ruled that the injunctions against enforcement of Trump’s travel ban, that had been upheld by the Fourth and Ninth Circuits would be upheld in part and reversed in part.  Trump claimed this was a victory, but a careful reading of the majority opinion reveals otherwise.  The plaintiffs in the cases argued for a stay because the travel ban would cause irreparable injury to them and by implication, persons who were similarly situated.  The parties who claimed irreparable injury were parties who had family members, friends, and students coming to the US.  Foreign nationals who had no connection with anyone in this country did not bring the lawsuit, and have no constitutional right to come to this country.  In a sense the Supreme Court basically said that anyone that claimed irreparable injury and those similarly situated (“who have a credible claim of a bona fide relationship with a person or entity in the United States”) could not be barred from entering the country.  To the extent that the lower court’s injunctions covered parties not involved in the lawsuit, in essence, they were overbroad.  Essentially all of the plaintiffs prevailed in the Supreme Court as to their interests.  Trump prevailed against foreign nationals who were not active in the litigation.  In other words, Trump lost to no one initially, and then prevailed over them.  Everyone who sued Trump won at the injunction stage.

There can be no doubt after Trump’s bizarre press conference with the Romanian President yesterday, that the lunatics are running the asylum.  The only question is, when will enough honest and honorable Republicans admit this, take steps to end our national nightmare, and free the nation and the world from Trump’s paranoid and delusional roller coaster ride?

The day after James Comey testified under oath that Trump demanded his loyalty, asked him to stop investigating Michael Flynn, and lied about the reason for Comey’s firing, Trump came out and called Comey a liar and said he would repeat his claims under oath.   Hmmm who should we believe, the career boy scout or the pathological and delusional liar?

Under Trump’s view, fed by Stephen Bannon and Corey Lewandowski, among others, Comey was part of the so-called “deep state,” you know, the secret group of intelligence officers that really run the country.  Yes Trump’s mind is under the control of the alt-right lunatic fringe.  Trump is mysteriously not bothered in the least by Russia’s cyber attacks on our country.  For someone who repeatedly claims there was no collusion with the Russians,  everything he and his administration does makes them all look guilty.  The smoke is so thick we can’t breathe.  We will find the fire.

The Court of Appeals recently held that even though implied consent to blow is only given by persons who drive or attempt to drive, it is sufficient to suspend a driver’s license or privilege to drive if the officer  merely has “reasonable grounds to believe” the person was driving.

The Court of Appeals ruling was based on a provision in the law governing the issues that can be raised at a hearing.  It only requires the MVA to show the officer had “reasonable grounds to believe” the person was driving.  As it has done in other cases, the Court of Appeals has created two different standards, one for the criminal case, and another for the license suspension hearing.

In the criminal case, the Court has recognized the “stationary shelter” defense.  A person may use the car to “sleep it off,” even with the motor on and not be driving, and therefore not be guilty in the criminal case.  At the MVA hearing, which is separate from the criminal case, the MVA could satisfy the lesser standard of  “reasonable grounds to believe” the person was driving, and the person can lose his or her license or privilege to drive in Maryland for 270 days for a first refusal or two years for a second or subsequent refusal or be required to participate in the ignition interlock program for one year.  (Important note – the interlock program only applies to Maryland licensees – out of state drivers are out of luck.).

Last week, on March 22 and 23, 2017, the National College for DUI Defense and Texas Criminal Defense Lawyers Association successfully concluded their jointly sponsored annual Mastering Scientific Evidence seminar in New Orleans.

Speakers included Robert Hirschhorn on Winning Voir Dire in Breath, Blood & Accident CasesAmber Spurlock on Mining for Gold in Blood Discovery: Obtaining What You Need & Using It To WinDonald Bartell on Successfully Defeating Hospital Blood Test Cases, Dean Jim Nesci on The Cure for Bad Breath 3.0Alan Wayne Jones, BSc, PhD, DSc on Over 40 years and 400 Published Articles in Alcohol Research: Pushing Science to the LimitsRobert J. Belloto Jr., R.Ph., M.S.2, Ph.D. on Prescription Medication & Alcohol: Interaction and Metabolism – Determining Therapeutic v. Non-therapeutic Levels, Alfred E. Staubus, Pharm.D., Ph.D. on Breath Testing: Reported Measurement of Uncertainty for Various Evidential Breath Testing Machines and Aspects of the Biological Variability, Donald J. Ramsell on Method Validation And Admissibility Of Forensic Alcohol And Drug TestsAndrew Mishlove on Blood Testing for Drugs: Methodology of How It’s Done & Success Challenges, Dr. Jimmie L. Valentine on Exposing False Positives in Drug Testing, Terry A. Wapner on Affecting the Breath Test Results – LPR vs. GERD, and Steven W. Rickard on Winning with Speed, Distance & Time.

StammJones-2-225x300Among the speakers listed above was A.W. Jones, the leading expert in the world on blood and breath testing with over 400 published articles, who answered questions from Leonard R. Stamm regarding calibration of breath test equipment and calculating uncertainty.  With respect to calibration, Dr. Jones opined that where a state has different levels of culpability carrying different punishments, such as Maryland, where the Motor Vehicle Administration suspends driver licenses for test result of 0.08 or above but less than 0.15 and for a test result of 0.15 and above, that the state should calibrate its breath testing equipment at both levels.  This is important because Maryland only calibrates its breath test equipment at 0.08.  Dr. Jones also stated that there is currently no accepted protocol for determining uncertainty.  Dr. Jones preferred method for eliminating uncertainty is to take the mean of two measurements and deduct 15% of the mean to attain a certainty of 99.9%.

This is not and will never be normal.  Trump’s continued lying and fabrications are the product of a deeply disturbed mind. Congress, we cannot continue like this for four years and you know it.

• Refugees coming from Mexico are not likely to be criminals and rapists.

• Refugees from Muslim countries who have been already subject to extreme vetting are not likely to be terrorists.

Sometimes courts must decide cases where a question is raised as to whether the exercise of governmental power violates the rights of a person or a class of persons.  Courts use different tests, different levels of scrutiny, to determine the legality of governmental actions and whether the government is denying due process, equal protection, and other rights.  The most deferential of these tests to the government is called the rational basis test.  Under the rational basis test, the challenged law must bear a rational relationship to a legitimate state purpose.

During the oral argument in the case of Washington, et. al. v. Trump, et. al., the judge questioned whether there was a rational basis for the Executive Order (EO) in light of the fact that the seven countries named have not produced a single terror attack since 2001.  The government seems to be arguing that they do not need a rational basis since the Constitution and laws vest in the President unreviewable authority over immigration.  Alternatively, the government in its appeal brief cites the Boston judge to suggest that a law cannot be questioned if it states “a facially legitimate and bona fide reason” to ensure “the “proper review and maximum utilization of available resources for the screening of foreign nationals” and “that adequate standards are established to prevent infiltration by foreign terrorists.”

While under ordinary circumstances, it might be easy for the government to meet this standard, here it is not.  For one thing, there is no mention or explanation given that current screening efforts are insufficient to protect the US, and if they are, what additional screening is necessary.  The Seattle judge obviously thought the fact that there has not been any demonstrated danger to us coming from these countries was important.  Experts have written that the effect of Trump’s immigration EO on our safety and security is lessened by the EO.  The people who have been primarily affected by this are legitimate VISA holders, including women and children, educators, students and relatives of individuals already here.  These people are not a threat to us.  They are the victims of those who are.