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.
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.
The National College for DUI Defense (NCDD) and the National Association of Criminal Defense Lawyers (NACDL) just wrapped up their annual Las Vegas seminar. As usual, it was well attended and the presentations were very informative.
The conference featured presentations on Thursday, September 22, on cross-examination by Jim Nesci; accident reconstruction by Steven M. Schoor; succeeding without an expert by Tommy Kirk; and, the psychology of winning by Allen Fox, Ph.D. The conference continued on Friday, September 23 with presentations on case law update by Don Ramsell; NHTSA’s ARIDE program (Advanced Roadside Impaired Driving Enforcement) by Tony Palacios; preparing for direct and cross of experts by Virginia Landry; ethics by Jim Nesci and nine other regents; gas chromatography for jurors by Suzanne Perry, M.Sc.; closing arguments by Joe St. Louis and Tommy Kirk; field sobriety test facts and fallacies by Tony Palacios; and, prescription medication issues by Fran Gengo, Pharm. D., Ph. D. The conference concluded today with presentations on closing argument by Tommy Kirk; cross of the standardized field sobriety tests by John Hunsucker (for attorneys with 1-5 years experience) and by Don Ramsell (for attorneys with over 5 years experience); analyzing a DRE facesheet and narrative report by Steven Oberman and Tony Palacios; breath testing by Jim Nesci; defending the impaired marijuana case by George Bianchi; and, how to try your first DUI case by John Hunsucker.
The National College for DUI Defense (www.ncdd.com) just completed its annual summer session held in Cambridge Massachusetts. The session featured large lectures, small lectures, breakouts, and small elective seminars.
Topics covered included Cross-Examination of the Arresting Officer by Marj Russell of the Gerry Spence Trial Lawyer’s College; Cross-Examination break out; Handling the High Profile case by Tony Coleman; immigration law by Brad Williams; postconviction, writs of error coram nobis by Professor Byron Warnken of the University of Baltimore Law School; plea negotiations and ethics by Assistant Professor Rishi Batra from the Texas Tech. School of Law.
We had small elective seminars (discussion groups) that were a new feature of the summer session and were very well received with the following topics: Win at the Initial Appearance, taught by Andrew Mishlove and Pat Maher; Suppression Motions: Winning it All Before Trial, taught by Jim Nesci and Steve Oberman, Leonard Stamm and Andy Alpert, Andrew Mishlove and Pat Maher, Don Ramsell and Michelle Behan, and, Mike Hawkins and George Flowers; Getting What You Want-Creative Approaches to Obtaining Discovery, taught by Bell Island and Lauren Stuckert; How to Use Social Media Effectively and Ethically, taught by Bill Kirk and Brad Williams; Federal DUIs: Reinventing the Wheel? by Leonard Stamm and Andy Alpert; Don’t Let Your Military Client Go Down with the Ship by John Hunsucker and John Webb; Picking the Winning Jury by John Hunsucker and John Webb, Mimi Coffey and Ryan Russman, and Paul Burglin and Lynn Gorelick; Preparing for Plan B, Sentencing in Serious Cases, taught by Mike Hawkins and George Flowers; Follicles, IIDs, ETG and SCRAM: The Hairs, Airs and Other Snares of DUI, taught by Doug Murphy and Richard Middlebrook; Just Say NO to Losing Your Client’s Commercial or Professional License, taught by Virginia Landry and Steven Epstein; Turning the Tide with Treatment, taught by Paul Burglin and Lynn Gorelick; Using Technology to Win Your Case, taught by Joe St. Louis and Lawrence Koplow; Managing a Practice from the Stone Age to the Digital Age in 10 Easy Steps, taught by Bruce Edge and Matt Dodd; Writing Winning Appeals, taught by Don Ramsell and Michelle Behan.
I will repeat the well known quote from Martin Niemöller:
First they came for the Socialists, and I did not speak out –
Because I was not a Socialist.
The Supreme Court decided two Fourth Amendment cases this week that diminish our freedom from police searches. The Fourth Amendment says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Starting with the Supreme Court’s decision in Terry v. Ohio, in 1968, police have been allowed to stop a person without probable cause if they have an articulable reasonable suspicion that the person has, is, or is about to break the law. Under the exclusionary rule, the government is not allowed to use in court evidence obtained in violation of the Fourth Amendment. The exclusionary rule exists to deter officers from breaking the law.
I have been reflecting on Memorial Day and paying tribute to the men and women who gave the ultimate sacrifice in defense of our liberty.
We are very fortunate to live in a place where an accused is presumed innocent, and has a right to notice, counsel, proof beyond a reasonable doubt, against compelled self incrimination and against unreasonable search and seizure. We also have constitutional rights to equal protection, due process, and freedom of speech and religion, and against government establishment of religion.
Each generation has a responsibility to fight to keep the rights and ideals enshrined in our Constitution alive. As lawyers, we have a special responsibility to give meaning to these rights that define us as a nation of laws and liberties, and we fight in court every day to ensure that the government promotes our rights, and does not encroach on them. We know from experience that many of our citizens take these rights for granted and don’t agree with them unless or until they face charges. As many of us know all too well, many of our prosecutors and judges give only lip service to our rights and achieving justice in many cases requires hard work by us, and is not always successful.
Today the Supreme Court heard oral argument in the cases of Birchfield v. North Dakota, 136 S.Ct. 614 (2015); Bernard v. Minnesota, 136 S.Ct. 615 (2015); and Beylund v. Levi, 136 S.Ct. 614 (2015).
Leonard R. Stamm, along with Donald Ramsell and Jeff Green, co-authored an amicus brief filed on behalf of the National College for DUI Defense and the National Association of Criminal Defense Lawyers, in these three cases on February 11, 2016.
The issue in the case was whether a state may make it a crime to refuse a warrantless breath test, or put differently to exercise one’s constitutional right to require the state to comply with the Fourth Amendment. Maryland has a sentencing enhancement of up to 60 days that may apply if a person is found by a judge or jury to have knowingly refused a test. The National Park Service, which controls a number of roads in Maryland, including the Baltimore-Washington Parkway, has a regulation, 36 CFR § 4.23(c) that makes it a crime to refuse a breath test, with a maximum penalty of 6 months in jail and a $5,000 fine. In both state and federal DUI cases, a suspect is told there is a possible jail sentence if he or she refuses to submit to a breath test. As a result, every breath test in state and federal court in Maryland is subject to a motion to suppress alleging that giving that advice is coercive and in violation of the Fourth Amendment.
Every breath test in Maryland is subject to suppression. Every administrative suspension based on a failed breath test should be thrown out. The reason is – in Maryland there is a potential 60 day enhanced jail penalty for every driver arrested for DUI who refuses to take a breath test. The question is – can the State put someone in jail for refusing to consent to a search of their body? Can the State make it a crime, or a sentencing enhancement to refuse to consent to a warrantless search? And if they cannot, can they comply with due process when they use the threat of jail to induce the person to consent to a breath test? The answer to these three questions should be NO.
There is a conflict among courts on the issue of whether a State can criminalize refusal to submit to an alcohol test. If it cannot, then any consent obtained by advising a suspect that refusal is a crime carrying a potential penalty of incarceration is coerced and involuntary as a matter of law. In Maryland, the DR-15 advice used to obtain consent gives this questionable advice.
This is an important issue currently because on December 11, 2015, the Supreme Court granted certiorari in three cases that raised this issue: Birchfield v. North Dakota, 136 S.Ct. 614 (2015); Bernard v. Minnesota, 136 S.Ct. 615 (2015); and Beylund v. Levi, 136 S.Ct. 614 (2015). These cases will be argued in the Supreme Court on April 20, 2016.
The Supreme Court today granted certiorari in three cases Birchfield v. North Dakota (14-1468); Bernard v. Minnesota (14-1470); and Beylund v. North Dakota (14-1506). These cases raise the question left open after the Court’s decision in Missouri v. McNeely, 133 S.Ct. 1552 (2013): can a state make the refusal to submit to a breath or blood test for alcohol a crime, punishable by imprisonment?
Police are presumptively required to obtain a warrant before obtaining a blood test for alcohol. Missouri v. McNeely, 133 S.Ct. 1552 (2013). The Supreme Court will now decide whether a warrant is required for a breath test, whether the refusal to consent to a breath or blood test can be made a crime, and whether advice that refusal is a crime carrying a possible jail sentence renders any consent to submit to a breath or blood test coerced and involuntary. However, relevant authority and review of Supreme Court cases compels an answer of yes – a warrant is required for a breath test, no – a refusal to consent to a breath test cannot be made illegal without violating the Fourth Amendment, and yes, advising a suspect that refusal is a crime punishable by imprisonment renders any consent given coerced and involuntary.
Warrantless searches are presumptively unreasonable. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Where there is a warrantless search, the government has the burden of proving the legality of the search, that it was conducted pursuant to a recognized exception to the warrant requirement, such as exigent circumstances, consent, and search incident to an arrest. In United States v. Reid, 929 F.2d 990 (4th Cir. 1991), the Fourth Circuit held that a warrant was not required to conduct a breath test during a DUI investigation because a breath test was a permissible search incident to an arrest and was conducted under exigent circumstances. However, Reid was overruled by McNeely, to the extent that it relied on exigent circumstances. United States v. Brooks, No. CRIM. PWG-14-0053, 2014 WL 2042028, at *5 (D. Md. May 16, 2014). The search incident rationale of Reid is also no longer valid due to the Supreme Court decisions in Arizona v. Gant, 129 S.Ct. 1710 (2009) and Riley v. California, 134 S.Ct. 2473 (2014). The final possible applicable exception to the warrant requirement is consent. However, where, the “consent” is obtained by a threat of incarceration, the consent is coerced and is not voluntary. State v. Won, 2015 WL 7574360, — P.3d — (Haw. 2015).