Maryland DUI Lawyer Blog

May 27, 2011

What does the right to call a lawyer or have one visit you in jail before deciding whether to take a breath test mean?

Recently, the Maryland Court of Appeals considered the case of Najafi v. Motor Vehicle Administration (MVA). After Najafi had been arrested for DUI, he asked to be able to make a private call to his lawyer to help him to decide whether to submit to a breath test. He requested that he be given privacy to make the call, but the officer said he couldn’t allow that. He tried to call his lawyer but only got an answering machine. He never submitted to a breath test and his license was suspended at an MVA hearing.

In the Court of Appeals he argued that because the officer said he could not have a private phone call he was denied his constitutional right to contact a lawyer and therefore his license should not have been suspended. The MVA argued that while a person detained on suspicion of drunk driving does have the right to contact a lawyer to decide whether to submit to a breath test, they argued that the denial of that right can only be raised as a defense in court, not at an MVA hearing. The Court of Appeals held that since the officer allowed him to call his lawyer, it was unnecessary to reach that issue. The Court also held that there was sufficient evidence for the administrative law judge (ALJ) to conclude Najafi had refused the test.

Although the Court did not reach the issue of whether denial of counsel could be raised at an MVA hearing, it intimated in dicta that it could not. An “obiter dictum” is a “judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive)” according to Black’s Law Dictionary. For a number of reasons, I believe this dictum is mistaken, and continue to argue at MVA hearings that denial of counsel is a valid defense.
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May 20, 2011

Basics of preparing for a DUI case

by Goldstein & Stamm, P.A.

What I have tried to do in the following blog is touch on the basics of preparing to represent a person charged with a DUI. It is not possible in this space to give more than a basic outline of what is required. What follows therefore, should be understood to just represent the tip of the iceberg. More detailed information can be found online, in relevant treatises, and at CLE (continuing legal education) seminars.

The lawyer’s preparation for a DUI begins with the first phone call or email by the prospective client. Counsel must find out the arrest date in order to advise the client to request a hearing with the Office of Administrative Hearings before the 30 day deadline expires if the client failed or refused a breath or blood test for alcohol or drugs. The client must be reminded to send in the hearing fee of $125 payable to the Maryland State Treasurer. I recommend the hearing request be mailed certified return receipt requested in order to protect against the hearing request being lost.

The initial consultation involves obtaining as much information as possible about the client and the case with the goal of obtaining the best possible result for the client in court and at the Maryland Motor Vehicle Administration (MVA). The lawyer must get from the client a brief life history and background, including education, military service, immigration status, marital and parental status, employment, need for a driver’s license, affect of license suspension or jail or probation on the client, prior record, prior efforts at alcohol education or treatment, a complete medical history, and a detailed recollection of the events leading up to and including the arrest and submission to any test, including drinking history. The lawyer must obtain and review all documents received by the client. I like to put the officer’s dates and times into a timeline in order to better understand the officer’s claimed sequence of events.
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May 13, 2011

Whether to go to trial or plead guilty to drunk driving in Maryland state court

by Goldstein & Stamm, P.A.

This is my first blog on DUI defense and related matters. So if you are reading this, welcome! I will try to blog every week. In the coming weeks and months I will be discussing issues of importance to DUI defendants and defense lawyers since a major part of what we do is translate the legal system to our clients, their family and friends to make what can be a stressful and confusing experience understandable.

Today I want to talk about whether to go to trial or plead guilty in state court. Every day I go to court I see defendants plead guilty to drunk driving charges who might be able to win their cases. Some lawyers advise their clients to plead guilty when they haven’t even checked to see if the officer is present in court. Don’t get me wrong. If a person accused of drunk driving is truly remorseful, pleading guilty can be a cathartic experience. But putting the State to its proof is not diametrically opposed to remorse. It is the way the system was designed to work. If the State cannot prove my client is guilty then he or she is not guilty. If the State wins, we can show plenty of remorse then.

The question I ask before advising a client is whether the client is better going to trial or pleading guilty. Another way of asking this is, is there a trial tax or penalty? Well, when a person is accused of having committed a serious felony and is likely to be convicted at trial, and the accepting the plea offer means the client will be in jail for a significantly shorter period of time, then taking the plea makes sense. But in the typical DUI case, the State offers the exact same thing or worse than would happen if the defendant is found guilty. So what is the benefit? At least with a trial, the defendant might not be found guilty.
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