Constitutional rights

September 13, 2023

Do you have to get an interlock in Maryland for a DWI? Some judges say yes. I say no.

I recently handled a sentencing for a client of mine for driving while impaired (DWI). Under Maryland law, one year of ignition interlock is required if you are convicted of the higher offense, driving while under the influence of alcohol (DUI). However, the relevant statutes do not require it for DWI, unless the “trier of fact finds beyond a reasonable doubt that the person refused to take a test arising out of the same circumstances as the violation.” More often than not, in Maryland, a driver who refuses a breathalyzer test at the time of arrest if found guilty of anything, will not be found guilty of the higher offense DUI, only the lower DWI. So the question is what does this phrase mean, that the “trier of fact finds beyond a reasonable doubt that the person refused to take a test arising out of the same circumstances as the violation.”

The answer can be found in Wadlow v. State, 335 Md. 122, 642 A.2d 213 (1994). In Wadlow, the indictment charged the defendant with possession with intent to distribute more than 448 grams of cocaine but it did not refer to the sentencing enhancement under Art. 27, § 286 (f). Also, the jury was never asked to decide the amount of cocaine. As a result the Maryland Supreme Court reversed the part of the sentence that relied on possession of more than 448 grams. The Court said:

In Maryland, however, we have generally drawn a distinction between sentence enhancement provisions that depend upon prior conduct of the offender and those that depend upon the circumstances of the offense. In the former situation, involving recidivism, we have made it clear that determination of the requisite predicate facts is for the sentencing judge. See Maryland Rule 4–245(e) (“[T]he court shall determine whether the defendant is a subsequent offender….”). The State must give timely notice to the defendant of its intention to seek enhanced penalties because of one or more prior convictions, but that notice is not filed with the court until after the acceptance of a guilty or nolo contendere plea, or after conviction. The applicable Rule also provides that “[t]he allegation that the defendant is a subsequent offender is not an issue in the trial on the charging document….” Md.Rule 4–245(d).

June 29, 2023

July 1, 2023 – Maryland’s 420

by Goldstein & Stamm, P.A.

On July 1, 2023, recreational marijuana became legal in Maryland. Adults over 21 years old are permitted to possess up to 1.5 ounces of marijuana and also to possess two pot plants. (Two plants is also the limit per household). With these changes it is important to remember that driving while impaired by marijuana is still a crime and a person who refuses a breathalyzer or after being examined by a so-called “drug recognition expert” refuses a blood test, can have his or her driver’s license suspended.

These drug recognition experts can be challenged on the ground that their testimony is insufficiently reliable to be considered by a court. As noted in an op-ed by Regi Taylor in the Baltimore Times on July 1,

Greenbelt-based attorney, Lenny Stamm, takes issue with the “scientific reliability” of methods used to identify suspected impaired drivers, particularly “assessments conducted by the state’s Drug Recognition Experts.” Stamm is an author and recognized national authority in his field, conducting seminars and lecturing widely on the DUI topic.

May 4, 2023

The Maryland Criminal Defense Attorneys’ Association presents the 19th Annual Advanced DUI Defense Seminar

by Goldstein & Stamm, P.A.

On May 5, 2023, the Maryland Criminal Defense Attorneys’ Association is holding its 19th Annual Advanced DUI Defense Seminar at the Doubletree Hotel in Linthicum, Maryland.

The seminar, organized and run by Leonard R. Stamm in conjunction with the MCDAA will feature presentations by experienced lawyers as well as an expert chemist. The schedule is shown below. If your lawyer attends this program, he or she is getting the most up to date training available for how to handle DUI cases.

MCDAA’S 19th Annual Advanced DUI Defense Seminar

April 1, 2023

Maryland legislature passes on interlock for all DUIs bill

by Goldstein & Stamm, P.A.

A few years ago, the Maryland legislature reacted to the tragic death by a drunk driver of Noah Leotta by enacting Noah’s Law. The supporters of Noah’s law increased penalties and closed some loopholes in Maryland’s DUI laws but failed to achieve one objective. The legislature did not agree that every first offender who gets a DUI should be required to have an interlock installed in their car for a minimum of 6 mos. The proponents of this measure have made annual attempts to impose this requirement. This year that attempt took the form of House Bill 451 and Senate Bill 528. As a representative of the Maryland Criminal Defense Attorneys’ Association, Leonard Stamm filed written objections to the proposal and testified against the bills before the Senate Judicial Proceedings Committee on March 10, 2023.

There are a number of objections to the bill that were detailed in the letter submitted to both the House Judiciary Committee and the Senate Judicial Proceedings Committee.

My name is Leonard R. Stamm, appearing on behalf of the Maryland Criminal Defense Attorneys’ Association. I have been in private practice defending persons accused of drunk driving and other crimes for over 38 years. I am author of Maryland DUI Law, and of all post 2013 updates to Maryland Evidence: State and Federal, both published by Thomson-Reuters. I am currently a Fellow (former Dean) of the National College for DUI Defense, a nationwide organization with over 1500 lawyer members. I am a former president of the Maryland Criminal Defense Attorneys’ Association. I have co-authored amicus briefs filed by the National Association of Criminal Defense Lawyers and the National College for DUI Defense in the Supreme Court cases of Bullcoming v. New Mexico, 564 U.S. 647 (2011), Missouri v. McNeely, 569 US 141 (2013), and Birchfield v. North Dakota, 579 US __, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016).

February 2, 2023

Responsibility for breath and blood testing taken from the ME and shifted to MSP

by Goldstein & Stamm, P.A.

In legislation enacted last year, the legislature amended statutes governing breath testing in Maryland, effective October 1, 2022. Previously, relevant statutes delegated to the toxicologist under the Post-Mortem Examiner’s Commission in Baltimore, the responsibility for approving equipment used for blood and breath testing in Maryland. The new law transfers that authority to “the toxicologist in the Department of State Police Forensic Sciences Division.”

At this point it is unknown how this shift will affect the admissibility of breath tests conducted after October 1, 2022, as these cases are just starting to get litigated. The toxicologist under the Post-Mortem Examiner’s Commission drafted regulations and procedures governing the approval of equipment for use in breath and blood testing in DUI cases. For tests occurring between October 1 and December 31, 2022, the new toxicologist simply wrote a letter extending the approvals previously issued by the former toxicologist. Whether this passes muster in court is yet to be determined. Arguably, once the legislature made the change, the new toxicologist could do anything except that as the legislature determined that the former toxicologist in charge of testing not make those decisions. Rather, the new toxicologist needs to develop procedures the assure the reliability and accuracy of breath and blood testing. Time will tell whether the new toxicologist will take the independent action to approve the equipment being used the legislature arguably requires.

For now, it is critical that defense lawyers request all available discovery from the State to evaluate whether the State has complied with the new laws requiring the toxicologist in the Department of State Police Forensic Sciences division to approve the equipment used in breath and blood testing in Maryland.

August 2, 2022

I am now a U.S. citizen, but I feel less free than I ever have

by Goldstein & Stamm, P.A.

Today, August 2, 2022, I read an op ed in the Washington Post by an Indian woman, Aaditi Lele, who recently became a US citizen who is a student at Vanderbilt University. It is worth sharing.

Less than two months ago, I took the oath of naturalization to become the first American citizen in my family. I watched as new Americans from dozens of countries stood together, speaking in unison of our commitment to “support and defend the Constitution and laws of the United States.” But in the wake of multiple decisions by a Supreme Court that seems intent on rolling back Americans’ liberties, I’m left wondering what warped interpretation of the Constitution I’ve committed to defend.

From the day my family moved from Pune, India, to the United States a decade ago, when I was 8 years old, I’ve been bombarded with glorified images and slogans about the American Dream — “Land of the Free!” — and encouraged to embrace this nation’s ideals. I came to believe this messaging. The idea that pursuing citizenship would help me secure my rights was not lost on me, so I did exactly that.

June 26, 2022

My thoughts on Dobbs v. Jackson Women’s Health

by Goldstein & Stamm, P.A.

Here are a few thoughts on our future after Dobbs.

1. I have always viewed Roe v. Wade as a compromise – an attempt to settle the dispute between those who favor and oppose choice. It was the middle position, giving preference to choice during the first trimester, and against choice in the third trimester, and balancing the interests during the second trimester. This was later adjusted to viability in Casey and requiring laws not to impose an “undue burden” on choice before that point. Dobbs says a prohibition of abortion survives because there is a rational basis for the legislature to believe the ban supports legitimate state interests. Here are some options for restoring the Roe/Casey compromise.

2. Pass the Equal Rights Amendment. This would allow an end run around Dobbs, recognizing women’s rights, and require the use of the much tougher strict scrutiny test. To pass strict scrutiny, the legislature must have passed the law to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest.

April 13, 2022

MSP Lab Acknowledges Testing Deemed Unacceptable By Accrediting Agency

by Goldstein & Stamm, P.A.

On March 21, 2022, the Director of the Maryland State Police Forensic Sciences Division notified the State’s Attorney co-ordinator for Maryland that the MSP lab would cease doing blood alcohol testing because the accrediting agency determined their testing procedure violated scientific requirements for blood alcohol testing. Read the letter here. MSAA BAC Letter_031522

On April 13, 2022, Clarke Ahlers and Serge Antonin released their podcast, the Black and White and thin Blue Lines, https://lnns.co/bZlMhf7g6KX , with special guests Lenny and Michael Stamm where we discuss the MSP lab fiasco, and wonder why it took almost 6 months to tell anyone about it.

If you have a DUI charge and a blood alcohol test, call 301-345-0122 for a free consultation.

October 14, 2021

Maryland Court of Appeals agrees to decide 20 minute issue

by Goldstein & Stamm, P.A.

Earlier this week, the Maryland Court of Appeals agreed to hear the case of Dejarnette v. State. In Dejarnette, the Maryland Court of Special Appeals held that a violation of the requirement that officers observe a defendant for 20 minutes before a breath test would only go to the weight to be given to the violation, as opposed to its exclusion. Dejarnette, represented by the Public Defender’s office, filed a petition for a writ of certiorari, asking the Court of Appeals to take the case. Dejarnette was joined by the National College for DUI Defense and the Maryland Criminal Defense Attorneys’ Association, who filed an amicus brief in support of the petition, written by Leonard R. Stamm and others.

Dejarnette will be arguing that a violation of the 20 minutes observational requirement should result in the exclusion of the breath test from evidence, as the 20 minute requirement is an essential component of an accurate and reliable breath test.

April 11, 2021

Maryland Police Accountability Act of 2021 – Governor Hogan’s veto overridden

by Goldstein & Stamm, P.A.

Last week both houses of the Maryland legislature overrode Governor Hogan’s veto and passed the Maryland Police Accountability Act of 2001.

The Act will improve the criminal justice system in Maryland a number of ways:

Set stricter standards for use of force by police;