Criminal justice news

November 6, 2019

Breath testing deficiencies brought to light by the New York Times

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.

September 4, 2019

It was 35 years ago today . . .

by Goldstein & Stamm, P.A.

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.

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]

May 30, 2019

Deciphering the Mueller Report

by Goldstein & Stamm, P.A.

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.

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:

September 29, 2018

The Kavanaugh Supreme Court nomination and alcoholism – he should have been asked the MAST test questions

by Goldstein & Stamm, P.A.

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.

September 29, 2018

Stamm argues Owusu v. MVA at the Maryland Court of Appeals

by Goldstein & Stamm, P.A.

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.

March 2, 2018

SB722 and HB1205 withdrawn after testimony from Stamm and others!

by Goldstein & Stamm, P.A.

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.

July 2, 2017

July 4 message – An attack on the media is an attack on all of us

by Goldstein & Stamm, P.A.

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.