Constitutional rights

April 13, 2022

MSP Lab Acknowledges Testing Deemed Unacceptable By Accrediting Agency

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;

November 13, 2020

Help – I’ve been referred to the Medical Advisory Board!

by Goldstein & Stamm, P.A.

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]

September 21, 2020

In Memory of Justice Ruth Bader Ginsburg

by Goldstein & Stamm, P.A.

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.

April 16, 2020

Supreme Court makes it easier for police to stop a car whose owner’s driver’s license is revoked

by Goldstein & Stamm, P.A.

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.

November 6, 2019

Breath testing deficiencies brought to light by the New York Times

by Goldstein & Stamm, P.A.

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.

July 1, 2019

The unconscious suspect – Mitchell v. Wisconsin holds exigent circumstances will allow a warrantless blood test in most cases

by Goldstein & Stamm, P.A.

Mitchell was arrested for DUI. He subsequently became unconscious. Since he could not submit to a breath test, the arresting officer could not obtain his consent to a blood test, and he needed medical attention, the officer took him to a hospital for treatment and to have his blood drawn without a warrant. The State conceded that exigent circumstances were not present to justify the warrantless blood draw. Instead, the State argued that the blood draw was justified under the State’s implied consent law, that an unconscious suspect is deemed to not have withdrawn consent to a test where the officer has probable cause to believe the driver is impaired by alcohol. In Mitchell v. Wisconsin, although the Supreme Court accepted review based on the implied consent issue, a plurality of four justices held that dealing with an unconscious driver will almost always involve exigent circumstances.

The court said:

When police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment. We do not rule out the possibility that in an unusual case a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties. Because Mitchell did not have a chance to attempt to make that showing, a remand for that purpose is necessary. [1]

January 29, 2019

Baltimore to Stop Prosecuting Marijuana Possession Cases

by Goldstein & Stamm, P.A.

The State’s Attorney for Baltimore City, has announced on January 29, 2019, that marijuana possession cases will no longer be prosecuted in Baltimore. In an article in the New York Times, Marilyn Mosby stated that it makes no sense to prosecute marijuana cases because it diverts resources from investigating more serious crimes and it alienates members of the community whose support police need to investigate these crimes. Additionally, the State’s Attorneys’ office will be reviewing 5,000 marijuana possession convictions and proposing legislation to make it easier to vacate convictions for marijuana possession.

January 24, 2019

Daily Record: “Md. lawmakers plan bill to close ‘Noah’s Law’ loophole”

by Goldstein & Stamm, P.A.

As the Daily Record reported yesterday (Jan. 23, 2019), a bill will be introduced in the Maryland legislature to expand Noah’s Law (named after Noah Leotta – a police officer killed by a drunk driver) to require an ignition interlock be installed as a condition of a probation before judgment. Currently, first offenders who blow a .15 or higher, or refuse to submit to a breath or blood test are required to obtain an ignition interlock for one year or have their licenses suspended for 180 or 270 days respectively (for a first test failure or refusal). If the driver submits to a test with a result of .08 or more but less than .15, the 180 day interlock is optional. That person may elect instead to drive with a permit that allows driving for work, school, medical, or alcohol education restricted driving privileges. Currently, some first offenders escape the interlock where they win the MVA hearing for a test failure or refusal, or if they have an out of state driver’s license.

There are some significant problems with the proposal, such as dealing with individuals who share cars with family members, who don’t own a car, who have to drive clients to earn a living or who live out of state. Currently, out of state drivers are not allowed to participate in Maryland’s ignition interlock program. This can be a devastating problem for drivers who live out of state and work in Maryland. Additionally, the law would deprive judges of the discretion to deny interlock in an appropriate case. This was the decision the legislature made a few years ago when Noah’s Law was enacted. Also commercial drivers are not allowed to drive commercial vehicles while their licenses are restricted in this way.

As the Daily Record reported: