DUI Defense Strategies

May 27, 2013

Be Careful Before Paying Traffic Tickets in Maryland!

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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April 17, 2013

Supreme Court rules search warrant presumptively required before obtaining non-consensual blood draw – Missouri v. McNeely win!

by Goldstein & Stamm, P.A.

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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November 11, 2012

Fighting for Justice – One Case at a Time

by Goldstein & Stamm, P.A.

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.

October 1, 2012

Because sometimes chemists lie – the latest scandal from Massachusetts

by Goldstein & Stamm, P.A.

There has been quite a bit of litigation in the past few years on the subject of what witnesses must be produced by the government to prove the results obtained for scientific testing for drugs and/or alcohol. The Supreme Court has taken a case a year on this question, starting with Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)(no chemist), Briscoe v. Virginia, 130 S. Ct. 1316, 175 L. Ed. 2d 966 (2010)(who must subpoena the witness), Bullcoming v. New Mexico, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011)(substitute chemist), and Williams v. Illinois, 132 S. Ct. 2221 (2012)(underlying opinion in DNA match). The government usually claims that it is unnecessary to bring these chemists to court because what they are doing is very routine, in the regular course of business, that the results are not really used for their truth (huh?), and that it would be too burdensome to bring these witnesses to court. But as is reported in the following disturbing article, sometimes chemists lie, and lie a lot.

The story, which is reported in the Boston Globe on September 30, 2012, is titled “How chemist in drug lab scandal circumvented safeguards.” According to the article, state drug lab chemist Annie Dookhan has been charged with two counts of obstruction of justice, for falsifying drug test results and for falsifying her academic record. Dookhan is accused of skipping necessary tests (dry-labbing) altering records, contaminating samples, and signing other chemist’s names, placing in jeopardy between 34,000 and 60,000 convictions.

This sad story simply illustrates what we all already know, witnesses are human, and sometimes humans lie. While confronting the lying witness in court may not always or even frequently uncover the lie, to allow a witness who supplies testimony that is critical for a conviction to avoid appearing in court is unfathomable and cannot be justified by simple cost benefit analyses.

September 25, 2012

Supreme Court Accepts Another DUI Case

by Goldstein & Stamm, P.A.

Today the Supreme Court granted certiorari sought by Missouri in Missouri v. McNeely. McNeely was suspected of DUI when police had blood withdrawn without a warrant. The Supreme Court of Missouri held that a warrant was required when the facts fell outside the narrow exception created in Schmerber v. California. See State v. McNeely.

Schmerber allowed a seizure of blood without a warrant due to the exigency created by dissipation of alcohol in the blood where an accident occurred and the suspected driver was taken to the hospital. The Supreme Court said:

We thus conclude that the present record shows no violation of petitioner’s right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.

Since McNeely was not in an accident and was not taken to the hospital the Supreme Court of Missouri affirmed the trial court’s holding that a warrant was required.

The question to be addressed by the Supreme Court is whether to uphold the Missouri Supreme Court’s conclusion:

The patrolman here, however, was not faced with the “special facts” of Schmerber. Because there was no accident to investigate and there was no need to arrange for the medical treatment of any occupants, there was no delay that would threaten the destruction of evidence before a warrant could be obtained. Additionally, there was no evidence here that the patrolman would have been unable to obtain a warrant had he attempted to do so. The sole special fact present in this case, that blood-alcohol levels dissipate after drinking ceases, is not a per se exigency pursuant to Schmerber justifying an officer to order a blood test without obtaining a warrant from a neutral judge.

July 29, 2012

The National College for DUI Defense 2012 Summer Session

by Goldstein & Stamm, P.A.

The National College for DUI Defense (NCDD) just completed its 3 day summer session, held in Cambridge, Massachusetts in the facilities of Harvard Law School. The College’s mission is to educate lawyers to become more proficient in defense of persons accused of drunk driving. The College’s motto is “Justice Through Knowledge.” The session was attended by some of the most skilled lawyers in the country, and featured presentations and workshops of the highest quality. The session exemplified what is best about the legal profession.

The session featured presentations by Robert Hirschhorn on jury selection, Leonard Stamm and Peter Gerstenzang on the Top 20 Guidelines for Bench Trials, Mimi Coffey on trial strategy and breath testing, Gary Trichter on the Bill of Rights, Erin Gerstenzang on Ethics, Tyrone Moncrief on the Art of Persuasion and Closing Argument, John Webb and Felipe Plascencia on closing argument, Dr. Sunwolf on Innovations in Jury Selection: Harvesting Skewed Venires; Juiced Jurors; Mental Blind Spots and Perfecting a Challenge for Cause, Michael Hawkins on Cross-Examination – A Performance, Justin McShane on Basic Gas Chromatography for Blood Alcohol Content, and Stephen Jones on The Real Field Sobriety Tests. Workshops were conducted on jury selection and closing arguments. The keynote address was delivered by the Honorable Joseph Johnson.

The session was conducted under the auspices of Dean George Stein who turned the reins over to Troy McKinney, the incoming dean, at the culmination of the session. The current slate of officers includes Peter Gerstenzang, Assistant Dean, Stephen Jones, Secretary, and Leonard R. Stamm, Treasurer.

Over 160 lawyers were in attendance including Regents not mentioned above James Nesci, Bill Kirk, Don Ramsell, Virginia Landry, Andrew Mishlove, Paul Burglin and Doug Murphy and Fellows James Campbell, F.K. Whited, Les Hulnick, Tommy Kirk, Phil Price, George Bianchi, Doug Cowan and Steven Oberman.

June 19, 2012

Williams v. Illinois – What now?

by Goldstein & Stamm, P.A.

Yesterday the Supreme Court announced its opinion in Williams v. Illinois. The decision was anxiously awaited by those of us who have followed the Supreme Court’s recent Confrontation Clause cases, namely Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico. Melendez-Diaz had held that the chemist in a drug case must be brought to court by the government for cross-examination, and Bullcoming held that another chemist in a lab who had nothing to do with a test cannot take the place of the actual analyst who reported a blood alcohol reading in a DUI case.

In Williams v. Illinois, Williams was convicted of rape based on a DNA match. DNA was collected from semen found during the victim’s rape exam and the profile identified at Cellmark Laboratories in Germantown, Maryland. A different lab analyzed William’s DNA and identified a genetic profile. Illinois did not call anyone from Cellmark to testify, but rather called an expert who testified that the two samples were a DNA match.

The Supreme Court decided in an unusual plurality – 4-1-4 – that the expert could give the opinion of a match, even though no one from Cellmark testified to the underlying profile that was the basis for the opinion. What is unusual about the opinions issued in the case is that the five justices who voted to affirm the Illinois Supreme Court (and the rape conviction) did not agree why and that a majority of five agreed the plurality’s reasoning was wrong.
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April 4, 2012

Drug Recognition Expert (DRE) Protocol is Junk Science Says Carroll County Circuit Court

by Goldstein & Stamm, P.A.

On March 5, 2012, the Circuit Court for Carroll County, Maryland released its opinion in the case of State v. Brightful, et al., granting the defendants’ pre-trial motions to exclude the opinion of a drug recognition expert (DRE) in each of the consolidated cases. The case was litigated by defense attorneys Brian DeLeonardo and Alex Cruikshank. The court heard 10 days of expert testimony from both sides between September, 2010 and February, 2011. The State presented six expert witnesses: Dr. Karl Citek, Ms. Michelle Spirk, Mr. William Tower III, Officer William Morrison, Lt. Thomas Woodward and Dr. Zenon Zuk. The defendants called three experts: Dr. Francis Gengo, Dr. Neal Adams, and Dr. Jeffrey Janofsky. The court concluded that the DRE program is not generally accepted within the relevant scientific communities and that therefore would be excluded under the cases of Frye v. United States and the Maryland case of Reed v. State, as well as under Maryland Rule 702.

Specifically, the court said:

Findings of Fact

The DRE Protocol fails to produce an accurate and reliable determination of whether a suspect is impaired by drugs and. by what specific drug he is impaired. The DRE training police officers receive does not enable DREs to accurately observe the signs and symptoms of drug impairment, therefore, police officers are not able to reach accurate and reliable conclusions regarding what drug may be causing impairment.

January 8, 2012

Howard County illegal quota results in DUI acquittal

by Goldstein & Stamm, P.A.

A recent news story disclosed that Howard County police officers were required to write a predetermined number of tickets each shift. Judge throws out DUI case, saying police had quotas – Howard County police chief calls ruling a bad decision. According to the story the Howard County Police Chief was quoted saying that a federal grant to aide enforcement of traffic laws required officers average 2-4 citations per hour on the street.

McMahon said the grant “mandated that an average of 2-4 citations must be written per hour on each of these details by each officer or future funding may be withheld.”

As a result the District Court for Howard County granted a defense motion to dismiss the charges.

In future cases, defense lawyers must find out if their clients’ stops were made by officers operating under a quota, as reported by a follow up story. Drunk-driving quota case may lead to similar efforts elsewhere – Prosecutors look at possible appeal as defense lawyers suspect issue may affect other cases.

Leonard Stamm, a Prince George’s County lawyer who wrote a legal handbook called “Maryland DUI Law,” said the case puts lawyers who defend people charged with drunken driving on notice for a potential avenue for defense.

Though as a District Court ruling it has no bearing on other cases, defendants coming before other judges can bring it up. “Now that it’s out there, it’s something you have to look for,” Stamm said.

December 1, 2011

The DUI Defense Lawyer as DUI Mechanic/Technician

by Goldstein & Stamm, P.A.

Criminal defense lawyers are fond of making analogies to explain themselves to non-lawyers. Analogies can be very useful in closing argument and I intend to discuss some of those analogies in a future blog. Today I want to discuss the DUI defense lawyer as a DUI mechanic or technician.

Every DUI case has component parts. The prosecutor must know how these parts fit together in order to build a successful case. The defense lawyer must also know how these parts are supposed to fit together in order to dismantle the State’s case. This is an integral part of our criminal justice system, and the defense lawyer acts as a check on the government to make sure the prosecution follows all of the rules and regulations, statutory and constitutional provisions before the fact-finder – a judge or jury – concludes the defendant is guilty.

It’s as if you brought your car into the shop for the mechanic to repair or rebuild your car. The defense lawyer is like a competing mechanic watching the actual mechanic. The judge is a supervisor. When the actual mechanic tries to take a short-cut, and skip a part he has in short supply, the defense lawyer/opposing mechanic objects, and the judge/supervising mechanic can rule that the prosecutor/mechanic cannot complete the repair without doing it 100% correctly.
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