Legislation

February 7, 2017

Can a delusional belief be a rational basis?: the constitutionality of decision-making in the Trumpian post-truth, alternative fact, fake news age and the dangers of policies based on untruths

Sometimes courts must decide cases where a question is raised as to whether the exercise of governmental power violates the rights of a person or a class of persons. Courts use different tests, different levels of scrutiny, to determine the legality of governmental actions and whether the government is denying due process, equal protection, and other rights. The most deferential of these tests to the government is called the rational basis test. Under the rational basis test, the challenged law must bear a rational relationship to a legitimate state purpose.

During the oral argument in the case of Washington, et. al. v. Trump, et. al., the judge questioned whether there was a rational basis for the Executive Order (EO) in light of the fact that the seven countries named have not produced a single terror attack since 2001. The government seems to be arguing that they do not need a rational basis since the Constitution and laws vest in the President unreviewable authority over immigration. Alternatively, the government in its appeal brief cites the Boston judge to suggest that a law cannot be questioned if it states “a facially legitimate and bona fide reason” to ensure “the “proper review and maximum utilization of available resources for the screening of foreign nationals” and “that adequate standards are established to prevent infiltration by foreign terrorists.”

While under ordinary circumstances, it might be easy for the government to meet this standard, here it is not. For one thing, there is no mention or explanation given that current screening efforts are insufficient to protect the US, and if they are, what additional screening is necessary. The Seattle judge obviously thought the fact that there has not been any demonstrated danger to us coming from these countries was important. Experts have written that the effect of Trump’s immigration EO on our safety and security is lessened by the EO. The people who have been primarily affected by this are legitimate VISA holders, including women and children, educators, students and relatives of individuals already here. These people are not a threat to us. They are the victims of those who are.

April 20, 2016

The Supreme Court considers whether breath tests require a search warrant

by Goldstein & Stamm, P.A.

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.

April 14, 2016

Senate and House Compromise on Noah’s Law: Ignition Interlocks NOT Required on All First Offenders

by Goldstein & Stamm, P.A.

If you have been following the news lately you have heard that Maryland has joined the states that require interlocks in all DUI cases, even for first offenders blowing under 0.15. For example, see Md. lawmaker: Slain officer Noah Leotta ‘is still on the job’ in the Washington Post. However a close examination of the record reveals over 50 changes to the original version of Noah’s law contained in the Conference Committee Report.

A key provision in contention would have required a first offender with a test result of 0.08 or higher but less than 0.15 to get an ignition interlock for 90 days. The House had rejected that provision. However, that provision was contained in the third reading of the Senate Bill 945. (The House and Senate had both already stricken a provision requiring defendants charged with DUI or DWI but only convicted of reckless or negligent driving to get an ignition interlock). In the end, the House and Senate Conference Committee compromised. They increased the length of the suspension to 6 months, but reinstated a provision that allows alleged offenders to request a hearing to get a permit that allows driving for employment, alcohol education, education or medical purposes for the licensee or family members, without obtaining an ignition interlock in the car. So while a 6 month interlock is an option, it is not a requirement in the new law. The new law, which takes effect on October 1, 2016 (assuming the Governor signs it), also requires ignition interlock for defendants convicted of drunk driving (for 6 months, one year, or 18 months). But in Maryland most of them are second offenders, since most first offenders found guilty end up with probation before judgment (PBJ) – not a conviction.

If you are facing criminal or traffic charges in Maryland state or federal court, call Leonard R. Stamm of Goldstein & Stamm, P.A. at 301-345-0122 for a free consultation.

March 18, 2016

Noah’s Law passes the Maryland House – with amendments

by Goldstein & Stamm, P.A.

The Maryland House of Delegates took the courageous step of passing Noah’s Law, HB 1342, with substantial amendments. The amendments make the bill a much more rational and humane way of encouraging sober driving while not unnecessarily punishing social drinkers or putting them out of work.

The law deals with test failures and refusals before court and the effect of convictions after court.

Under current law a person who submits to a test and has a reading of 0.08 or more and less than 0.15 faces a 45-day suspension for a first offense and 90-day suspension for a second or subsequent offense. On a first offense or a second or subsequent offense more than five years after the first the suspensions may be modified by an administrative law judge to allow restricted driving for purposes of work, school, alcohol education or treatment, or medical treatment for the licensee or family members. Noah’s Law changes this to increase the suspension periods from 45 to 90 days and 90 to 180 days. The proposed law also eliminates the work etc. permit provision and requires these offenders to get an ignition interlock for the period of suspension. The House amendments restore the work etc. permit but leave the increased length of suspensions in place.

March 7, 2016

Noah’s Law – helpful or hurtful?

by Goldstein & Stamm, P.A.

The anti-DUI lobby in Maryland has put together a massive effort to pass HB 1342/SB 942 called the Drunk Driving Reduction Act of 2016 – Noah’s Law, in memory of Montgomery County police officer Noah Leotta, who was killed by a suspected drunk driver last December. The bill proposes a number of changes to Maryland law.

MVA penalties for a test result of 0.08 or more but less than 0.15 would be increased from a suspension of 45 days on a first offense and 90 days on a second or subsequent offense would be increased to 90 and 180 days respectively. Critically, instead of first offenders being able to drive with a permit restricted for work, education, alcohol education, or medical purposes, all of these drivers would be required to install an ignition interlock for this period of time.
MVA penalties for a test result of 0.15 or more would be increased from a suspension of 90 days on a first offense and 180 days on a second or subsequent offense would be increased to 180 and 270 days respectively. Instead of ignition interlock being optional for these offenders, it would now be mandatory.