Articles Posted in Criminal justice news

On Thursday, the nation was transfixed as the Senate Judiciary Committee heard testimony from Dr. Christine Blasey Ford and Brett Kavanaugh.  Kavanaugh has been accused of sexual assault by Ford and a number of other females when they were in high school and college.  All of the complaints say that Kavanaugh was extremely inebriated at the time.  However, when Kavanaugh was asked about his drinking habits he became very defensive and refused to answer the questions, although he did admit to on occasion drinking too much and liking beer.  At all costs, he had to deny his alcoholism, if he suffered from it, because that would lead to questions of whether he drank to the extent of experiencing blackouts, a symptom of heavy drinking, where the person has no memory of their conduct while drunk.  If he experienced blackouts, then his denials would be much less credible.  Although the senators’ questions for the most part avoided touching on his alcoholism, it appears evident that his alcoholism or lack is central to the case.

In drunk driving cases, all clients represented by attorney Leonard Stamm are referred to a program approved by the Maryland Department of Health and Mental Hygiene to determine if the client has a drinking problem and to receive an appropriate level of education and treatment.  A directory of programs nationwide can be found here.

Clients are assessed to determine if they have a drinking problem using a number of psychological screening tests.  The most well known is probably the Michigan Alcohol Screening Test also known as the MAST test.  Clients are give a score based on their answers.  A higher score indicates a likely drinking problem.  Other tests include the Alcohol Use Disorders Test or AUDIT test.

On Wednesday, September 12, 2018, Leonard Stamm appeared in the Court of Appeals to argue the case of Owusu v. MVA.  Owusu was arrested for drunk driving and taken to the police station.  At the police station he was read the DR-15 Advice of Rights Form.  This is a form police officers are required to read to DUI suspects advising them of the penalties for refusing or failing a breath test for alcohol.  In Owusu’s case he was read the form and told that if he failed the test he would lose his driver’s license for 180 days, but that if he refused he would lose his license for 270 days.  Additionally he was told that since he had a commercial driver’s license or CDL, that if he refused the test his CDL would be disqualified for one year.  The one year disqualification meant that he not be able to perform his job as a bus driver for one year.

Immediately after reading the form, that contained a lot of other information as well, to Owusu, the officer tried to be helpful.  He told Owusu that since he was a bus driver he would be out of work for 180 days if he failed the test and 270 days if he refused.  Although probably well meaning, the officer’s statement was false. Critically, the officer did not tell Owusu he would be out of work for one year if he refused as a result of the one year disqualification of his CDL.  The one year disqualification was huge because it means Owusu will have to retake the CDL knowledge and skill tests with it, but not with a 270 day suspension.  Owusu testified at the hearing that after the officer advised him, he was not aware he would lose his CDL, and that, if he had he would have submitted to the test.

As Stamm had argued in the MVA hearing and again in the Montgomery County Circuit Court without success that the giving of the false advice failed to comply with the relevant law requiring the arresting officer to “fully advise” the driver of the administrative penalties and also violated Owusu’s due process rights.  Stamm also unsuccessfully argued in the hearing and appellate court that the DR-15’s form’s advice of a 270 day suspension on a refusal, and eligibility for a restricted license, without telling drivers that the required period of interlock restriction is longer, one year, violated his statutory and due process rights.

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.

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.).

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.

So here we are, in Donald Trump’s unreality-fantasy.  Where the President is deranged, unhinged, and out of control.  Where accurate and truthful news is the enemy.  Where fake news and lies determine policy.  Where science is distorted and evidence ignored.  Where prejudice is disguised as reason to justify cruel policies that harm American interests.  Where the President and his aides have unleashed and continue to unleash a virtual torrent of falsehoods.  The crisis we face is unprecedented in our history, unlike anything we have seen before.

Each day brings new horrors, worse than the horrors of the day that preceded it, as Trump exercises power in an unconstitutional and chaotic manner in the delusional belief that his actions are good for our country.  The tragic news of today happens to be Trump’s illegal order banning refugees from seven countries.  None of the terror attacks in this country dating back to well before 9/11 have been committed by persons from the seven countries.  The countries where those terrorists that did come from overseas originated are not in the list.  Although Trump claims this is not a Muslim ban, it only applies in Muslim countries, and it is perceived in the world as a Muslim ban. It doesn’t make us more safe as the people being shut out are people that have already been subject to extreme vetting or green card holders who made the mistake of being abroad at this time. It is stupid and self-defeating. As Malcolm Nance notes, “this will damage us worldwide” and help our enemies. “This will create terrorists.” And this is not who we are. Embarrassingly, Canada by contrast states it is welcoming refugees, using our values to make us look like fools.

The US is now being tested as it never has before.  Today’s NY Times discussed the unprecedented volume of falsehoods in “‘Up Is Down’: Trump’s Unreality Show Echoes His Business Past.”  The story noted that:

Apparently yesterday two judges in Montgomery County were imposing interlocks as a condition of probation in DUI first offense cases.  So major traffic dockets in Rockville 413 and 414 were not good places to be yesterday.

The Washington Post recently reported that State’s Attorney for Montgomery County, John McCarthy, has instructed his prosecutors in Montgomery County to request an interlock in most first offense DUI cases.
This is apparently a reaction to the compromise reached by the Legislature this past session where, despite me being vastly outnumbered at the House and Senate judiciary committees, Noah’s law was amended to require interlocks on convictions under § 21-902(a), and under § 21-902(b) or (c) where the defendant has refused a test, and test readings of .15 or higher, but not on tests of .08 or more and under .15 or on PBJs.  So the legislative intent was to not require first offenders who appear to be social drinkers to get the interlock.