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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.

As many of you are aware, courts and the MVA are currently closed until May 4, and may be closed until a later date.  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.  The courts and MVA, although closed to the public, are being maintained by a skeleton staff, and the courts are holding hearings of an emergency nature, sometimes telephonically.

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.

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]

On Wednesday, Special Counsel Robert S. Mueller gave a public statement that basically said, “Read my report.”  Decoding Robert Mueller, NY Times, Opinion, May 29, 2019.  He said he could not come to a conclusion, unless he could exonerate the President.  That is not entirely accurate because reading his thorough analysis provides the answers.  However, the report is so long and detailed that virtually all of the news articles and commentary refer to the report in very general terms, rarely discussing the essential underlying facts, instead focusing on conclusions: whether he obstructed justice or whether impeachment should occur.  But conclusions without facts are not very helpful.  This has enabled the President to falsely claim the report exonerated him, and the Attorney General, in his March letter, to falsely claim the elements of obstruction were not met, the exact opposite of what the report says.  It is as if they have decided, “we can say whatever we want because most people won’t read the report.”  However, it is possible to summarize the essence of the report – the facts – as follows.

Obstruction of justice is a crime containing three requirements, according to Mueller, an obstructive act, a connection to a pending or foreseeable proceeding, and a corrupt intent.  An obstructive act “would naturally obstruct the investigation and any grand jury proceedings that might flow from the  inquiry.”  It is no defense to say the obstruction was prevented by aides, as the crime of obstruction is defined as the attempt, irrespective of outcome.  Mueller found ten potentially obstructive acts or series of acts and analyzed each to see if they were obstructive acts, whether there was a connection to a pending or foreseeable proceeding and whether there was an intent to obstruct that proceeding.

With respect to four of these, Mueller found “substantial evidence” that satisfied the elements: (1) efforts to fire the special counsel; (2) efforts to change the special counsel’s charge to focus on interference with future elections; (3) ordering White House counsel McGahn to deny Trump tried to fire the special counsel; and (4) efforts to keep Michael Cohen from cooperating with federal authorities.  The only thing Mueller didn’t say was the conclusion that he had enough evidence to indict the President for obstruction of justice, instead saying he couldn’t clear the President.  But his conclusion IS in the report.  And the facts can be simplified, as above, or amplified, if necessary, for public consumption.

 

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.

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:

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