COVID-19 Update: How We Are Serving and Protecting Our Clients

We have noticed lately what seems like an extraordinary number of referrals to the MAB.

When anyone suspects that a driver may have a physical or mental condition that would affect their ability to drive, he or she may refer that person to the Medical Advisory Board (MAB) of the MVA.[1]  Initially, the referral goes to the Division of Driver Wellness & Safety (DW&S).[2]  DW&S sends the person a series of questionnaires that must be completed and returned as well as consent forms for the driver to allow the MVA to obtain reports from the driver’s physician and relevant treatment programs, detailing the condition, diagnosis, prognosis, treatment, and any medications they have been prescribed. 

After receiving the information, DW&S may take a number of actions.  Parameters are set forth in COMAR § 11.17.03.04 for how to respond to specified medical conditions to guide the MVA’s determination.  DW&S may further refer the person to the MAB for review by a physician.[3]  The Medical Advisory Board makes recommendations to the MVA when individuals are referred to the MAB and a certain physical or mental condition is indicated.[4]

On this Veteran’s Day we pay tribute to the over 17 million veterans in the US today.  These are men and women who have personally sacrificed to preserve our freedoms, and the great experiment in republican democracy that has survived for over 225 years since the adoption of the US Constitution in 1788.  The genius of the US Constitution is the separation of powers between three branches of government, and between the federal government and the states.  With the addition of the Bill of Rights, we are very fortunate to have a representative government, that respects individual liberties.

Our firm is sensitive to the needs of veterans with links to websites that cater to veterans’ needs.  https://www.lstamm.com/veteran-s-resources.html

In recognition of the sacrifices made by veterans, our firm offers reduced fees to many veterans seeking representation for a traffic or criminal matter.

As you all know by now Justice Ruth Bader Ginsburg passed away Friday night on erev (the evening of) Rosh Hashanah (the Jewish New Year).  According to Jewish tradition, a person who passes on Rosh Hashanah is considered a “tzadik” – a revered person.  The “Notorious RBG” as she came to be nicknamed is certainly that.

She went to Harvard Law School in an era when women were far from accepted in the legal profession.  After transferring to Columbia Law School she graduated first in her class, yet found few job offers for a woman lawyer.  Yet she never gave up fighting for women’s rights, and the rights of all of us, arguing six cases before the Supreme Court, and famously saying “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”

She eventually landed a seat on the United States Supreme Court.  In her 27 years as a justice, was a powerful voice in such opinions as United States v. Virginia (1996)(striking down VMI’s male-only admissions policy); Olmstead v. L.C. (1999)(individuals with mental disabilities have the right to community-based housing); Bullcoming v. New Mexico (2011)(holding that chemists in DUI cases must be produced by the State for cross-examination in DUI cases), and many others.  She also wrote powerful dissents in Bush v. Gore (2000); Ledbetter v. Goodyear Tire & Rubber Co. (2007)(where her dissent led to the Lilly Ledbetter Act – guaranteeing women equal pay) and many others.

Today the Supreme Court issued a 5-4 decision rejecting the Trump administration’s effort to get rid of DACA – Deferred Action for Childhood Arrivals.

Robert’s opinion is worth a read.  But here’s my summary of the main points.

Administrative action must be supported by a reason at the time the action is taken and if it is changing a previous policy it must evaluate how it affects people who relied upon the earlier policy.  DACA did two things, conferred benefits and deferred removal proceedings.  Homeland Security Secretary Elaine Duke issued a memo explaining the termination of DACA at the time relying upon a 5th Circuit ruling declaring DAPA (a similar program for parents) illegal.  But the 5th Circuit opinion only addressed benefits not foregoing removal.  New Sec’y Kirstjen Neilsen expanded upon the reasons nine months later, but post-hoc (after the event) explanations that are different cannot be considered.  She could have issued a new termination decision and explained it but did not.  So her memo would not be considered.  Homeland Security failed to explain why it would change the policy of foregoing removal proceedings and evaluate how it affected people who relied on DACA.  So it was arbitrary and capricious.

Goldstein & Stamm, P.A. is pleased to welcome Michael Stamm to the firm as a new associate attorney.

Michael Stamm graduated from Georgetown University Law Center in 2017. While there he interned at public defender offices in Upper Marlboro and Baltimore, Maryland and Fairbanks, Alaska. He worked as an Executive Article Editor on the Georgetown Poverty Law Journal and published a note, Between A Rock And Discriminatory Place: How Sentencing Guidelines And Mandatory Minimums Should Be Employed To Reduce Poverty Discrimination In The Criminal Justice System, 24 Geo. J. on Poverty L. & Pol’y 399 (2017).  In his third year, he participated in the year-long Georgetown Criminal Defense and Prisoner Advocacy Clinic, where he represented indigent clients charged with misdemeanors in Washington D.C. and those on supervised release in revocation hearings. As part of the clinic, he also taught a class on legal writing for lifers at the Jessup Correctional Institution.  At graduation, he received the Kirby S. Howlett III Memorial Award for his clinic and public defender work. 

After graduating from law school, Stamm worked as a public defender in Montrose, Colorado. During that time he represented people charged with a wide variety of misdemeanors and felonies.  He gained significant courtroom experience, litigating numerous motions and trying over 20 cases to juries. 

Last week, the Supreme Court announced an 8-1 decision, authored by Justice Thomas, in the case of Kansas v. Glover, allowing a police officer to stop a car where the owner’s driver’s license was revoked, without first ascertaining that the driver was the owner.  This represents a change in the law that will have the overall effect of bringing more people into criminal court.

As the Fourth Amendment applies to the states, the Fourth Amendment’s exclusionary rule also applies in state court.  So if the officer obtains evidence against a person by way of some action that violates the Fourth Amendment, then the evidence is “suppressed,” meaning it cannot be used in court to prove the guilt of the person accused.  The general rule is that a police officer may stop a car if the officer has what is called an articulable reasonable suspicion to believe the driver has committed, is committing, or is about to commit a crime.

Many officers now have tag readers, and as they drive around they get alerts when the Motor Vehicle Administration alerts that there is a problem with the vehicle registration or the driver’s license of the owner.  Before this new decision, if an officer got an alert on a car that the owner’s driver’s license was suspended, the officer could pull up a photo of the owner on the laptop mounted above his or her console, and verify that the owner was driving the car before making the stop.  Now if the tag reader alerts that the driver’s license of the owner is revoked, the stop can be made without first verifying the driver’s identity.

Updated September 24, 2020.  As many of you are aware, courts and the MVA are now open.  Court hearings are staggered to provide for social distancing and face masks are required.   All MVA hearings are virtual for the time being – on the web-x platform.   Those of you who are facing DUI or other traffic charges and/or license suspension hearings need to know what is going on with your cases.  If you need to obtain a new driver’s license or modify it, you need to make an appointment at the MVA.

One thing you can always do is check the status of your court cases on Maryland Judiciary Case Search.  You can click on the link or google it.  Click the disclaimer.  Put in your last and first name and click.  Your tickets should be listed.  If you have a common name and the search results take more than one page, you can click on the filing date tab twice, and the most recent cases filed will be listed first.  You can also limit your search by checking the county where the charges were filed, and in most traffic cases, select District Court.  On the left side, the ticket or case numbers are listed and you will be able to see information about your case by clicking on the case number.  If you have a court date, it should be on the page.

If you have recently been arrested, and you either refused a breath or blood test, or failed one, the officer seized your license and gave you a temporary license that allows you to driver for 45 days.  If you asked for a hearing you can drive until your hearing.  If you want a hearing, you should send the hearing request to the Hunt Valley address indicated by certified mail, return receipt requested, with a check for $150 made payable to the Maryland State Treasurer.  This must be sent within 30 days of the issue date on the Order of Suspension, also included on the temporary license form.  If you elect to participate in the ignition interlock program without a hearing, read the next paragraph.

Recent articles in the New York Times have raised questions about the reliability of breath testing devices used across the country in DUI cases.  These Machines Can Put You in Jail.  Don’t Trust Them  and 5 Reasons to Question Alcohol Breath Tests.  The authors also interviewed a defense lawyer and defense expert in NPR, and heard from other persons connected with the breath testing process including an officer and a defendant. Blown Away: Why Police Rely On Faulty Breathalyzers.

Breath testing is used to estimate a level of alcohol in the person’s blood.  Breath testing relies on an assumption that a persons breath can contain alcohol in roughly a 1/2100 ratio of the alcohol in the breath to the alcohol in the blood.  There are numerous other assumptions as well, highlighted in an article by Leonard R. Stamm, and published in the magazine of the National Association of Criminal Defense Lawyers, the Champion, titled The Top 20 Myths of Breath, Blood and Urine Testing.

The New York Times articles highlight some of the problems that have plagued the government’s efforts to prosecute drunk driving cases.  This includes problems with calibration, maintenance of the machines (officers insist on calling them “instruments”), the controls that are used, the adequacy of the procedures used to test individuals, failures in record keeping, secrecy in computer codes, human errors and others.

On this day 35 years ago, September 4, 1984, I began the practice of law.  I walked into court with my mentor and friend, the late great Alan Goldstein, to watch him litigate motions in a conspiracy to commit murder case.  I had just returned from my honeymoon in Greece the day before.  And while I was in that jet-lagged state, Alan introduced me.

Your honor, I would like to introduce Mr. Leonard Stamm.  You have known him as he clerked across the hall last year.  Now he is my associate.  And he is going to argue today’s motions.
With that, Alan sat down.  And he, and the judge, and the prosecutor looked at me and said “Get up!”  I, of course, was completely unprepared, and shocked.  They all looked at me and again said “Get up” again.  As I slowly started to stand up, they all started laughing.  And with that began my practice of law.

Every state prohibits drunk driving.  Every state also acknowledges that it is legal to drink alcohol and then drive if the alcohol consumed does not impair one’s abilities.

The amount of alcohol that a person can drink in an evening and be safely under the legal limit varies from person to person.  The main factors of weight, number of drinks, size of the drink, concentration (proof) of the alcohol, gender, and time of drinking all affect the outcome.  In the 1930’s a Swedish scientist named Erik Widmark came up with a formula to calculate blood alcohol concentration (BAC) based on these factors.  Using Widmark’s formula, it is possible to estimate BAC.   In these calculations, there is a rough equivalence between a 12 oz. beer, and 6 oz. glass of wine, and a mixed drink containing 1.5 oz. of alcohol.

A woman will have a higher BAC than a man of the same weight because alcohol is more concentrated in the cells of a female.   Since many women weigh less than many men, this difference is exaggerated with most people.

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