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Articles Posted in DUI Defense Strategies

In Maryland courts, hundreds of DUI (driving under the influence) and DWI (driving while impaired) cases are heard every day. The vast majority of cases are resolved by the defendant pleading guilty on the terms offered by the prosecutor whether the defendant has a lawyer or not. However, in state court, judges are prohibited from punishing a defendant who elects to plead not guilty. It is unusual in Maryland for a prosecutor to offer a defendant a result that is better than what would happen anyway if the case went to trial and the defendant lost. So why not roll the dice? The defendant has nothing to lose.

An example of this occurred yesterday in a District Court trial of mine. My client had a number of prior offenses, and although the most recent was over 20 years ago, he did have some exposure to jail. With some judges he was facing a lot of jail time. His breath test was very high. The prosecutor offered him a plea to driving under the influence of alcohol and she would recommend that he be sent to jail. This was the same thing he would get after a trial if we lost, which I fully expected! However, trials sometimes yield surprises.

The officer testified that he received a call for an accident and proceeded to the location. When he arrived he spotted a Dodge truck that looked like the description he received and pulled his car in front of it so it could not leave the parking lot it was in. The officer could not remember whether the truck was in motion or stopped. I objected because the State had never informed us what the original description was. Under Maryland discovery rules, the State is required to provide all information relevant to any searches and seizures. I was moving to suppress all the evidence seized as the result of an illegal stop. The judge took a break to consider the objection.

When the judge came back, he granted my motion, but not for the reason I argued. He said that he was granting the motion beoause the officer did not indicate who was at fault in the accident and that he had not testified that he had been told that the defendant was uncooperative and had failed to exchange information. So he had no evidence that the officer was in possession of any information indicating the defendant had committed any crime during the accident or after it, and granted the motion to suppress, followed by a motion for a judgment of acquittal. Not guilty.
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The U.S. Supreme Court held oral argument yesterday in the case of Navarette v. California. This case presents the important issue of when police can stop a car based on an anonymous tip without corroborating the details provided by the caller. An anonymous caller informed police that Navarette’s vehicle was driving recklessly and almost ran them off the road. The caller provided a description of the vehicle. Police spotted the vehicle 19 miles down the road and followed for another 5 miles without seeing any bad driving. Ultimately, the vehicle was stopped and police found marijuana. Under the Fourth Amendment exclusionary rule, if the stop was illegal, the marijuana must be suppressed. That means the trial court couldn’t consider it and Navarette would get off.

During the argument the justices peppered the lawyers with hypotheticals designed to flesh about where and what lines the Court should draw. What if it was a report of a bomb? An atom bomb? A gun? The Court had held in a gun case, Florida v. J.L., an anonymous report of a juvenile in a plaid shirt carrying a gun was insufficient.

The general rule is that police may stop a person if they have an articulable reasonable suspicion to believe the person was, is, or is about to commit a crime. But a very important factor may have been overlooked by the justices and the lawyer arguing the case.

MR. KLEVEN: Right. If they can’t see any erratic driving still going on, then where is it going to go? They’re not going to prosecute for the recklessdriving that allegedly took place 19 miles away and they have followed that car for an additional -­
JUSTICE SCALIA: They could if the guy admitted it, you know.
MR. KLEVEN: Other than that, Your Honor -­
JUSTICE SCALIA: They could play Mutt and Jeff with him and he — oh, yeah, I did, yes.

The fallacy here is that if the caller is anonymous, even if the defendant admits the conduct, he cannot be prosecuted for it. The corpus delicti rule in criminal law requires that there must be corroboration of the corpus delicti to prosecute a defendant. “Corpus delicti” is a Latin phrase that very loosely translated means the body of the crime. A person cannot be convicted of a crime based solely on a statement admitting guilt. There must be some independent evidence that in fact a crime was committed. In the case of an anonymous report of a past crime such as a minor traffic violation, without any witness to come forward and testify under oath that he observed the defendant commit a crime, the defendant can’t be prosecuted for it.

So why allow the stop?
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This past Thursday the Maryland Court of Appeals held oral argument in Motor Vehicle Administration v. Deering. John K. Phoebus of Salisbury, Maryland argued on behalf of Ms. Deering that Deering’s license should not have been suspended when the police officer would not let her call her lawyer before deciding whether to take or refuse a breath test. She elected to submit to the breath test and failed. The rule of Sites v. State, decided in 1984, is that when a person arrested for DUI asks to call a lawyer, they must be allowed an opportunity to do so that does not interfere with the State’s ability to obtain a breath test. The rule was clearly violated in Deering’s case, but the MVA argued that the violation cannot be raised as a defense at the administrative hearing, only in court.

An amicus brief filed by Leonard R. Stamm on behalf of the National College of DUI Defense (NCDD) and the Maryland Criminal Defense Attorneys’ Association (MCDAA) came up during oral argument. Chief Judge Mary Ellen Barbera noted that one of the claims in the brief was that if the Court ruled in the MVA’s favor it would be changing the status quo. The brief stated that the Sites defense has been allowed at MVA hearings for 30 years. The brief also stated that it was only relatively recently that a growing number of judges have started to disallow the defense, as a result of the Court’s decision in Najafi v. Motor Vehicle Administration. Najafi had stated in dicta (meaning a statement by the Court that is not necessary to resolve the case and therefore not binding on lower tribunals) that the denial of counsel defense could not be raised at the MVA license suspension hearing. However, Chief Judge Barbera noted that there was no data cited to support this statement and wanted to know from counsel whether they agreed with it. Counsel for the MVA, Leight Collins, did not dispute the statement and acknowledged that there is no data base from which data could be culled to support or opposed the statement. Rather, there are paper records of the hearings. So there is no data that could have been provided.

The amicus brief was also quoted in the Daily Record.

“The manner in which the officer reads the form can…detract from its ability to be understood,” attorney Leonard R. Stamm wrote in the friend-of-the-court brief. “Additionally, most suspects have no legal training or understanding to assist them in making an intelligent decision, that usually occurs late at night, when they are tired, afraid, upset and traumatized.”
Stamm is with Goldstein & Stamm P.A. in Greenbelt.

A number of judges asked whether officers were required to advise suspects of their right to call a lawyer. The Court had rejected a similar claim years earlier in McAvoy v. State.
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When a person gets convicted of a drunk driving (DUI or DWI) charge in a state other than Maryland, that state usually sends a notice of the conviction to the Maryland Motor Vehicle Administration (MVA). The MVA is then authorized to take action against the person’s driver’s license under a number of provisions.

Artilce IV of the Driver License Compact, allows Maryland to take action against the person’s driver’s license as follows:

Effect of Conviction

(a) The licensing authority in the home state, for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported, pursuant to Article III of this Compact, as it would if such conduct had occurred in the home state, in the case of convictions for:
(1) Manslaughter or negligent homicide resulting from the operation of a motor vehicle;
(2) Driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug, or under the influence of any other drug to a degree which renders the driver incapable of safely driving a motor vehicle;
(3) Any felony in the commission of which a motor vehicle is used;
(4) Failure to stop and render aid in the event of a motor vehicle accident resulting in the death or personal injury of another.
(b) As to any other convictions, reported pursuant to Article III, the licensing authority in the home state shall record the conviction on the individual’s driving record, but may not assess points for the conviction.

Md. Code Ann., Transp. § 16-703.

If a person receives 12 points within a two year period, and DUI carries 12 points, the MVA may revoke the person’s driver’s license. In addition, the driver may have his or her license revoked or suspended under Md. Code Ann., Transp. § 16-206(a)(1)(v) which provides that a driver may be revoked or suspended if the person “[h]as committed an offense in another state that, if committed in this State, would be grounds for suspension or revocation.”

The Administrative Law Judges (ALJs) who decide these cases have an enormous amount of discretion in deciding what sanction to impose. The ALJ can impose a sanction ranging from revocation to a reprimand (warning) and everything in between. This can include a restricted license for a month or two allowing only driving related to work, education, alcohol education, and medical purposes for the driver and family members. The ALJ may also impose a restriction requiring the driver to enroll in and successfully complete the Maryland Ignition Interlock System Program. Typically the driver presents mitigation evidence in the form of certificates of completion from alcohol education and treatment classes, and letters from an employer verifying a need for work related driving.
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The National College for DUI Defense (NCDD) and the Maryland Criminal Defense Attorneys’ Association (MCDAA) filed an amicus brief late last month authored by attorney Leonard R. Stamm in Motor Vehicle Administration (MVA) v. Deering.

Deering was arrested for DUI and requested to take a breath test. Before submitting she asked to call her lawyer. However, the police department had a policy of not allowing arrestees to call their lawyers before submitting to a breath test. The policy directly contradicts the Court of Appeals‘ holding in Sites v. State that a person accused of drunk driving has a right to contact a lawyer so long as the phone call does not interfere with the State’s ability to conduct the test. Deering submitted to the test and blew a 0.16 At her license suspension hearing for a test of 0.15 or greater her attorney asked the Administrative Law Judge (ALJ) to take “no action” due to the failure to allow her to call her lawyer. The ALJ denied the motion, but was reversed by the circuit court on appeal. The MVA asked the Court of Appeals to hear the case and they agreed to.

The issue in the case is whether denial of counsel can be raised as a defense at an administrative license suspension hearing. The amicus brief raises 6 points.

1. The considerations governing the choice of submitting to or refusing an alcohol test are much more complex now than when Sites was decided in 1984, the consequences of a wrong choice more severe, and the need for counsel greater.

2. The due process right to contact counsel was recognized by this court in Sites primarily due to a potential loss of the ability to earn a livelihood, and the MVA hearing is the only forum where loss of employment or inability to obtain employment can meaningfully be addressed

3. Addressing due process concerns, the legislature amended § 16-205.1(f) to include a requirement that the officer “fully advise” the driver of the administrative sanctions for failing and for refusing the test

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Annie Dookhan, a former forensic chemist at a state forensic laboratory in Massachusetts, pleaded guilty to 27 counts of falsifying test results, misleading investigators, and tampering with evidence. She was sentenced this week to 3-5 years in prison. followed by 2 years of probation. In the course of her career she filed reports in approximately 40,000 criminal cases, which are now under review.

This is an extreme case, but it highlights the need for defense lawyers to carefully scrutinize state police laboratory results and methods to uncover mistakes resulting from incompetence, negligence, and fraud in criminal cases. Newpaper stories are replete with cases of laboratory mistakes that have resulted in erroneous convictions.

The amicus brief filed by the National Association of Criminal Defense Lawyers and the National College for DUI defense in Bullcoming v. New Mexico, co-written by Leonard R. Stamm said:

“Forensic evidence is not uniquely immune from the risk of manipulation.” Melendez-Diaz, 129 S. Ct. at 2536. The recent report by the National Research Council of the National Academies, Strengthening Forensic Sciences in the United States: a Path Forward (2009) (NAS Report), confirmed what defense lawyers have long known: because forensic analysis is a product of human discretion, it is vulnerable to incompetence, error and sometimes even fraud. See also Solomon Moore, Science Found Wanting in Nation’s Crime Labs, N.Y. Times, Feb. 5, 2009, available at http://www.nytimes.com/2009/02/05/us/05forensics.html (last visited Dec. 1, 2010). As the NAS Report revealed, forensic analyses “are often handled by poorly trained technicians who then exaggerate the accuracy of their methods in court.” Id. The NAS Report verifies that forensic science is anything but infallible, and is instead fraught by very human errors leading to problems such as sample contamination and inaccurate reports. Id.

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The United States District Court for the Southern Division of Maryland in Greenbelt issued its first ruling Friday granting a defense motion to suppress a warrantless blood test as a result of the Supreme Court decision in Missouri v. McNeely. Magistrate Judge Thomas M. DiGirolamo issued a 19 page written opinion holding that McNeely applied to cases pending at the time of its issuance, that the Government did not demostrate sufficient exigent circumstances to justify dispensing with a warrant, and that the Fourth Amendment exclusionary rule did apply in the case of United States v. Brown, 2013 U.S. Dist. LEXIS 147352 (D. Md. October 11, 2013).

The opinion stated:

The government asserts that this case falls within the exigent circumstances exception. Specifically, it points to the 30 minute delay in the taking of the defendant’s blood due to the defendant’s failure to cooperate with the breath test at the station. The Court does not find that said delay combined with the natural dissipation of blood-alcohol brings this case within the exigent circumstances exception. This is simply not a case where the exigencies of the situation were so compelling to excuse the need for a warrant. Officer Weisbaum described this incident as a “routine” DWI stop. While this alone does not mean a warrant is required, it is a “special fact” to be considered. See McNeely, 133 S.Ct. at 1568. Additionally, unlike Schmerber, time did not have to be taken to investigate an accident or attend to the suspect’s personal injuries. There was nothing about the defendant’s physical or mental condition, or behavior, which required the expenditure of time in addition to what would normally be expended in a routine DWI stop. Officer Weisbaum testified that it is common for defendants to at first agree to cooperate with the breath test and then not blow sufficiently, resulting in a failed test. The Court does not find that the totality of the circumstances present in this case constitute such an emergency to excuse the officer from obtaining a warrant prior to the taking of the defendant’s blood. Given that the defendant did not consent to the blood test, the Court finds the taking of his blood was in violation of the Fourth Amendment.

There remain pending in Greenbelt a number of unresolved motions to suppress due to the policy of the U.S. Park Police to obtain blood samples in DUI cases without first seeking a warrant prior to the Supreme Court’s decision in Missouri v. McNeely, on April 17, 2013. The U.S. Park Police was one of a very small number of jurisdictions in the United States that followed the practice of getting blood samples from DUI suspects without first getting a warrant. The vast majority of states that obtained blood samples were already seeking and getting judicially issued warrants before drawing blood in DUI cases.
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Last year, the Maryland legislature changed the law that required the court to send trial notices to all persons receiving traffic tickets. Now a person receiving a payable (minor) traffic violation and no jailable (non-payable – must appear) companion tickets must either pay the ticket or request a trial within 30 days. If this is not done the driver’s license is suspended until they pay it.

The ticket says:

IF ANY OF YOUR VIOLATIONS ARE MARKED “MUST APPEAR”: You will automatically be mailed a notice of your trial date by
the Court. Failure to appear will result in a warrant for your arrest.

Then further down on the form it says:

IF ANY OF YOUR VIOLATIONS ARE MARKED “PAYABLE FINE”: You must comply with one of the following within 30 days
after receipt of the citation. Provide any change of address if applicable.
OPTION #1 – PAYMENT: Pay the full amount of the fine for each violation within 30 days at any District Court of Maryland, by
mail, or by credit card (fees apply) using the IVR system or the Court Website. If paying by mail, make check or money order
payable to District Court of MD and include citation number(s) on front of check or money order. On the option form below, check
“Pay Fine Amount” for each violation being paid and mail the form with your payment to the address shown for the District Court of
MD.
An additional $10 service fee will be imposed for each dishonored check.
OPTION #2 – REQUEST A WAIVER HEARING REGARDING SENTENCING AND DISPOSITION INSTEAD OF A TRIAL: On the
option form below, check “Request Waiver Hearing” for each violation where hearing is requested, sign and date at bottom and mail the
form within 30 days to the address shown below. DO NOT SEND PAYMENT at this time.
OPTION #3 – REQUEST TRIAL: On the option form below, check “Request Trial” for each violation where Trial is requested, sign, date
at bottom and mail the form within 30 days to the address shown below. DO NOT SEND PAYMENT at this time.

The problem occurs when the person (or their parent!) pays the citation without knowing the consequences. First of all, if any of the tickets is a must appear, then it should absolutely not be paid because a trial date will be scheduled for all the tickets together. The notice on the citation is not clear about this! Even if none of the tickets is a must appear, no ticket should be paid before the person knows everything that will happen at the MVA. And in most cases, people receiving tickets do better by going to court anyway.
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The Supreme Court today announced its opinion in Missouri v. McNeely and ruled that police in DUI investigations may not automatically avoid seeking a search warrant to obtain a blood sample where the defendant does not consent to a blood test. This is the third win as amicus curiae for the National College for DUI Defense which filed an amicus brief with the National Association of Criminal Defense Lawyers.

The Court said:

In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v. United States, 335 U. S. 451, 456 (1948) (“We cannot . . . excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made [the search] imperative”).

It is interesting counting the votes again.

With respect to the proposition that there is no per se DUI exception to the warrant requirement in so far as non-consensual blood tests are concerned, the vote is 8-1 (only Thomas dissented from the holding). Since that was the only basis urged by Missouri for decision, the Missouri Supreme Court was affirmed. Missouri never appealed the question of whether the officer in this case acted reasonably.

As a result, Justice Kennedy wouldn’t touch when and whether it might be reasonable for an officer to get blood without a warrant. He is willing to wait for the next case to do so. In so far as there was a discussion about how to determine when and whether an exigency exists there were 3 votes for kind of a special totality test where if the warrant couldn’t be obtained without any delay at all, then it might not be needed (Roberts, Alito & Breyer). But Sotomayor, Kagan, Scalia and Ginsburg disagreed with this approach.
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This past Wednesday I got a call from a former client, JT, who is from a state where it is legal to travel with a handgun in the car, to help his employee, AJ, who had just been arrested in West Virginia and was awaiting extradition to Maryland. Unlike the state they were from, in Maryland it is illegal to possess or transport a handgun in a car, with very few exceptions. I had represented JT on a handgun charge in Prince George’s County, Maryland and obtained a good result. Prince George’s County takes a hard line on people found illegally possessing a handgun and prosecutes them very aggressively. JT, and his employee, AJ, were driving to a construction job in another state when JT got tired and asked AJ to drive. He did, but when he was pulled over for speeding, police found AJ didn’t have a drivers license. A search of the car yielded the handgun. The gun belonged to JT, it was JT’s car, and AJ didn’t even know it was there.

Initially in District Court at the time of their arrest and release, in late October, 2011, JT was charged with illegally transporting the handgun and AJ was charged with speeding and driving without a license. In early December, both JT and AJ were indicted in Circuit Court for illegally possessing and transporting the handgun. In Maryland when someone who is initially charged in District Court is indicted in Circuit Court, the District Court loses jurisdiction to the Circuit Court and any initial bond that is posted to gain release is supposed to transfer to the new Circuit Court case. In this case when the indictments were returned a Circuit Court judge issued bench warrants and set a $25,000 bond for each as if there had been no District Court bond set and satisfied. That should not have happened.

Since I represented JT, I arranged for a “walk in arraignment,” where the judge recalled the warrant and let him out on his original terms of release. Ultimately JT pleaded guilty to illegally transporting a handgun and received probation before judgment. However, AJ and his lawyer appeared in District Court in February, where he pleaded guilty to speeding and the driving without a license was stetted (postponed indefinitely). Apparently no one ever realized AJ had an outstanding warrant since early December in the same case in Circuit Court, because if they had, they also would have known that the indictment deprived the District Court of jurisdiction over at least one of the charges, driving without a license. Although, as JT’s lawyer, I knew AJ had also been charged, I gave it no thought, because AJ had a lawyer who I assumed was on top of it. This Wednesday when AJ was stopped for a traffic offense in Berkeley County, West Virginia he received a rude awakening. There was an unserved bench warrant for him from Maryland for the gun charges. AJ was jailed pending extradition to Maryland. JT called me to see what I could do.

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