December 15, 2014

Interesting Win today: Gentleman in Wheelchair

I had an interesting DUI victory today in Baltimore County District Court. Unfortunately my client was in a wheelchair and paralyzed from the waist down due to a pre-existing condition from years ago. He was stopped driving home in Baltimore County for speeding wherein he told the officer that he had five beers and a shot of fireball whiskey, he was charged with a Maryland DUI. One challenge that we see a lot when dealing with the police is that defendants are a little too talkative regarding what they have consumed prior to being arrested. Remember, in any other form of criminal arrest the police are constrained to read Miranda warnings which is advice to the defendant to keep their mouth shut until contacting an attorney. Unfortunately, these same protections do not typically apply in the traffic/DUI scenario. Consequently, it is wise to be aware of your legal rights to keep your mouth closed and to practice that philosophy.

The police in this case could not perform the normal field sobriety tests for obvious reasons; however the police officer was able to perform the single test of the horizontal gaze nystagmus or HGN. Remembering that the HGN test is nothing more than an indicator that one has consumed alcohol, this test was relatively meaningless in this case because the defendant admitted that he consumed alcohol throughout the evening. This defendant was arrested by the police as a result of the HGN test and his red glassy eyes in addition to minimal speeding. Once back at the police station he blew a .14 BAC into the breath machine and that was the end of the game.

Fast-forward to Baltimore County District Court today where I tried the case and was able to exclude the BAC number from coming into evidence. Once the number was excluded due to the police officer's technical failure in the case, something the prosecutor was not aware of, the case took on all whole new light. Many times there are technical failures on the part of law enforcement or the prosecutor's office and that is how these cases are won.

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December 8, 2014

Maryland Marijuana Legalization

The eyes of the nation are slowly opening and looking kindly upon the legalization of Marijuana thanks to people such as Dr. Gupta of CNN News and Houston's Police Chief Charles McClelland. Dr. Gupta has been a trusted and ubiquitous voice in medical affairs for many years now. His initial position was against the legalization of marijuana but after further careful study his views have changed. His view is shared by the enlightened public and many of those that do not have a financial interest in the outcome of this debate. Increasing numbers of law enforcement can also be heard to echo the same sentiment. In this case, Houston's own top cop.

How in the world could law enforcement adopt such a liberal and dubious position? It's easy, not only is it the right, correct, and equitable thing to do but it also saves tremendous financial resources among the states and the nation. Since marijuana became the target of law enforcement decades ago, millions of dollars across the nation have been wasted in the pursuit, arrest and incarceration of users and sellers alike.

Interestingly, it is becoming apparent in the medical community that not only does marijuana possess health benefits to many sick individuals it is also a victimless substance for recreational use. As for the medical uses, naturally big pharma will throw its considerable financial weight around in order to deny people this inexpensive drug in lieu of expensive pharmaceuticals; they have been successful up to this point in time. Happily as a result of Dr. Gupta and other medical expert's opinions in this field, big Pharma is in the process of losing this battle. One which they will no doubt ultimately yield on while they move on to their next profit making market.

Having recognized their dwindling interest in this area we now move on to the more logical law enforcement perspective...

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August 27, 2014

Out of control Police..again

In Ferguson, Missouri, there is a tragedy following a police shooting. Michael Brown is shot to death while walking down the street. Evidently the police told him to get out of the street and Brown thought better of that. There was a confrontation with the police officer which escalated and the officer felt that he needed to reach for his service weapon and moments later a black man lay dead in the street. This gives new meaning to "driving black in America". Now "walking black in America" is a life threatening issue as well.

Not saying that Michael Brown was a good person mind you; he was an imposing young man who moments earlier evidently stole something from a local merchant. When confronted by the merchant, Brown pushed the merchant out of the way and exited the store. The cop was unaware of that situation at the time of the shooting.

The larger issue is white officer on black defendant and the use of deadly force and the next bigger issue is law enforcement and the court's continual erosion of our Constitutional rights. Now this officer should have been trained in when and how to use deadly force, I am sure that would not include when a large black male refuses to get out of the street, or even if an altercation ensued, that is not license to use deadly force, even if the kid is going to kick your a.... all over the street. That's when you need to call your partners in blue.
Also, don't the cops out that way have tasers?

My concern however is not the specifics of this particular case. I am more concerned with law enforcement and the high court's continued erosion of the people's protections against the system, against state authority. In this case, an unarmed shooting, but in other cases, like DUI checkpoints for example the police can stop cars for no reason. Recently, in Navarette v. California, the United States Supreme Court, in a 5-4 decision made matters dramatically worse.

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June 27, 2014

DUI and your mobile/cell phone

An important privacy issue has been brewing of late. In these days of eroding Constitutional protections and important issue has developed that has to do with privacy and your mobile phone following an arrest. The police, in their unending battle to fight crime and lock up the bad people have taken to invading person's privacy upon arrest by shamefully foraging through a defendant's mobile phone looking for incriminating text messages, illegal pictures, contacts with known criminals, etc. Law abiding folks and those that appreciate our Constitutional protections in this country, as eroding as they may be, have been putting up a fight.

The important issue of mobile phone security/privacy made its way to the Supreme Court of the United States where the justices recently ruled on whether a person can expect some level of privacy regarding their phone contents upon arrest. On a side note, these smart phones do have locking mechanisms to keep prying eyes out so if one did wish to stay private it seems it might be a good idea to utilize such security features, and it is still a good idea despite the Court's favorable ruling.

I digress, the Court actually found for the little guy in this decision, and decided that folks do have a recognizable privacy interest in their phones and if "the man" wishes to pry inside the digital enclave of a collar's phone, they actually have to secure a search warrant to do so. This is good news because most arrests, like DUI for example, would not yield probable cause for a search warrant to issue and therefore the contents of one's phone should remain private. Conversely, if a defendant was arrested for drug distribution for example, there very well may be probable cause for the cops to get a search warrant for that phone. Thus, the Supreme Court's opinion in this case does recognize privacy and does the right thing to protect Joe citizen. If the cops have a legally cognizable need to search a phone they have a legal mechanism to do so, but they cannot willy-nilly go through the phone of every person they arrest for jaw walking, driving with suspended tags, or even DUI.

Since most people have private personal information on their phone, saying banking info for example, it is always a good idea to implement as much security on the phone as possible to keep prying eyes out, even police eyes and possibly even police eyes with a search warrant. I wonder how they get into the phone even with a warrant if the owner does not give them access to the password to the phone. So, if your privacy is important to you, and there are things that warrant security and privacy on your phone, even in light of this favorable opinion of the Court, it is always a good idea to secure your phone with a complex password and not to leave it vulnerable to prying, nosy eyes.

May 4, 2014

The Legalization of Marijuana

5 Reasons Why Colorado Legalized Marijuana

Legalizing Marijuana, for medical or recreational use, has been a topic of debate for quite some time. Until recently, however, few regions have made drastic moves to change the drug's legal status. Colorado and Washington have done just that, erasing prohibitory statutes which have traditionally made use and possession of the drug a crime.

Morality weighs-in to the arguments - both for and against. Proponents of legalization consistently point out the mundane nature of the drug, as well as the potential to save significant money by law enforcement by decriminalizing pot. Those clinging to the status quo, however, see marijuana as a gateway drug capable of leading users to harder drugs like methamphetamine and heroin. As such, prohibiting its use is seen as a moral obligation to those staunchly opposed to legalization. Countless studies however tend to show that this “sky is going to fall in” thought process is not correct. In fact, Dr. Gupta from CNN has now changed his own position on this important matter and now suggests that marijuana is not the evil gateway drug that the conservatives like to suggest it is. In fact, when factoring in the reality of what marijuana is against a similar substance like alcohol, and then factoring in the overwhelming cost of law enforcement detection against the taxable revenue, it becomes a no brainer for which most if not all states will jump on in years to come.

Progressive legislators in Colorado have taken the plunge, so countless other state governments are keeping a close eye on how the decision to legalize marijuana plays out in the western state. While the jury is out for many observers, others see merit in the decision to legalize, asserting that the benefits clearly outweigh the risks. So what are some of the factors influencing Colorado's decision-makers to change their legal view of pot?

Public Sentiment Favors Legalization
Too often, modern politicians are seen acting contrary to their constituent’s interests. While it can be argued government maintains a watchdog role, others see intrusion into personal liberties as off-limits for federal and state authorities. Marijuana advocates in states like Colorado see their use as a personal choice, like the decision to consume alcohol, so they believe it is outside the scope of legislative enforcement.
To remove moral objections from the outcome, Colorado put the question up in a referendum vote, which eventually earned an endorsement from the voting public. Regardless of the issue, voters received clear representation when they were allowed to decide the issue themselves. In hindsight, most residents support the move, which has a track record of a few months, and greater than 50% support from Colorado residents.

Enforcement Dollars Better Spent Elsewhere
At times, money is the root of public policy decisions, especially in cash-strapped states seeking to bolster revenue and reduce spending. Few initiatives do both, but Colorado's decision to legalize marijuana opens the door to significant windfalls in both areas. Enforcement, for example, and efforts put forth to limit marijuana imports and smuggling throughout the state, account for astronomical entries in annual budgets, which yield diminished returns year-after-year. Demand fuels supply, so until significant reductions are made in the call for marijuana, spending will continue to fall flat in the effort to fight its use. Colorado recognized and embraced this reality sooner than other states, so the state will be the first to realize the savings tied to decriminalization.

Increased Revenue from Marijuana Taxes
In addition to wiping-out a significant annual expense tied to enforcing marijuana laws, decriminalization creates an entirely new revenue stream for the State of Colorado. Taxing legally obtained marijuana taps a once black-market commodity for revenues that would otherwise be lost to illegitimate trade. Colorado residents can purchase up to an ounce of pot, which yields a tax for residents. But out of state buyers are also welcomed to purchase a quarter ounce of the material, so legalization also generates tax payments from non-residents.

Penalties Should Match Crimes
For too long, a double standard has placed criminal penalties on marijuana use, while turning a blind eye to alcohol infractions. Penalties against drunk drivers have been elevated to reflect the seriousness of the crime, but alcohol is otherwise integrated into most aspects of society. Marijuana laws, on the other hand, have included penalties disproportionate to their crimes at times, including mandatory drug sentencing guidelines which incarcerated countless offenders for small-time marijuana crimes.

Floodgates Unlikely to Open
Opponents of legalization point to the possibility that widespread availability and legal status will lead to automatic increases in the number of pot users across Colorado. While decriminalization is a relatively new phenomenon, it does not appear to be having a dramatic impact on the number of users found within the state. In fact, voters polled several weeks after legalization rolled-out reported similar usage rates to those found before the initiative took effect, around 10%.

Wherever you fall on the social spectrum of marijuana decriminalization, it is hard to argue against the positive economic impacts the experiment is having in Colorado. Progressive attitudes prevail on the shift, which is widely seen by residents as a positive development. And while the new law is subject to ongoing revue, negative impacts have thus been limited in scope and number.

Author:
Daphne Holmes contributed this guest post. She is a writer from ArrestRecords.com and you can reach her at daphneholmes9@gmail.com.

May 4, 2014

4th Amendment is dwindling yet again

The Supreme Court of the United States has spoken in their decision in Navarette v. California; again they have significantly limited the reach and protection of the 4th Amendment to the Constitution that protects all good citizens (and no so good), in this country. Up until this recent recent decision by the hight Court, motorists were protected from unreasonable searches and seizures by over zealous police and law enforcement. That is, the police needed more then a hunch to stop a car, they had to have, at a minimum, reasonable articulable suspicion; that typically translated into the cop actually witnessing an act of wrong doing. Thus, if an citizen eyewitness to a driving infraction saw something specious, said witness could call it in to the police but the cops would still have to corroborate the tip by witnessing some bad driving for themselves prior to pulling the suspect over. This layer of additional surveillance protected the public from unreasonable police conduct and from an X-spouse or jilted girlfriend causing a legal problem to get back a the target of their prior affection.

Unfortunately, this has now changed as a result of the decision in Navarette. Now, when a 911 tipster calls in a possible DUI driver and provides the police ample information to corroborate the incident, ie. where the driver is, time of day, what they say, etc., the police are not free to utilize this information as the basis for a legal stop- without anything more! Now, thanks to this opinion, the police no longer have to follow the vehicle and observe an infraction themselves. In this case, the cop actually did follow the suspect for 5 minutes and was unable to see any further traffic infractions and therefore should not have been permitted to effectuate the stop. This officer however, made the stop and the driver was found subsequently guilty based upon the tipster alone. The stop in this case made it all the way to the Supreme Court and was up held with Justice Thomas writing the opinion for the Court supported by Roberts and Kennedy.

As far as the narrow purview of DUI detection is concerned, such an opinion may find support in the general public, but it is wise to bear in mind with conservative opinions like this that we are all seriously effected when the 4th Amendment is continuously eroded by the Court. Now anybody can make a 911 call and with a few scant details the police are actually free to stop a car and interrogate the driver with no first hand knowledge. Thus, if a mother turns around to scald a unruly child and momentarily leaves her lane of travel, and that is called into the police, without more, the police are free to stop that car and exercise their police powers. What a freaking disaster!

Justice Scalia, writing the dissent for the Court had the following to say:

Law enforcement agencies follow closely our judgments on matters such as this, and they will identify at once our new rule: So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called into 911, will support a traffic stop. This is not my concept, and I am sure would not be the Framers', of a people secure from unreasonable searches and seizures. I would reverse the judgment of the Court of Appeal of California.

This dissent recognizes what has long been the law of this land for over 200 years; what has been the bed rock of protecting the citizenry from the police machinery. The Court with a stroke of its pen has single handedly minimized if not nullified the law of the land and simultaneously exposed the motoring public to capricious and erratic law enforcement activity.

March 5, 2014

Baltimore County Cop Arrested for DUI

Woops, seems another of the "good guys" has proven that he is human. It is alleged in the Baltimore Sun that Baltimore County Cop Charles Bagley, a corporal, was arrested for DUI in Harford County where he resides. Evidently, when he was driving home he was displaying signs of intoxication when he was stopped and subsequently arrested for DUI.

This story is interesting on a number of levels among them he is a corporal on the Baltimore County police force assigned to the White marsh precinct. As a police officer and a corporal, he clearly knows better then to drink and drive, he has undoubtedly made many arrests for this same illegal behavior in the past and yet here he is demonstrating poor choices to the motoring public.

The second and perhaps more interesting part of the story is that he was arrested in Bel Air, Harford County. Everybody knows or should know that of all the places in Maryland that one can be arrested for crime, including DUI, one does NOT want to be arrested in Harford County. That county is the very worst in the entire state of Maryland.

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February 23, 2014

The Eroding 4th Amendment

One of the cornerstones of the U.S. Constitution, the one we hear the most about is the 4th Amendment to the U.S. Constitution. That is the one that says the people shall be free from unreasonable searches by the Government, ie., the people shall be secure in their persons, places, houses and effects and no warrant shall issue in the absence of probable cause. This critical legal right, conceived from our founding fathers of this great nation, has been the cornerstone of American jurisprudence and continues to be the bane of prosecutors nationwide Every single day in this country cases are thrown out court because evidence is offered by the Government that was not legally obtained. The same holds true in DUI arrests in Maryland and throughout the country.

In the context of DUI and DWI arrests, the police need to have a legal basis to stop a car. Before the cops have the opportunity to exaggerate their reports by using boilerplate language copied from one report to the next, they first have to dream up a legally recognizable basis to stop a car. Now, in all honesty, that isn't too difficult to do. The cops can stop a car for practically any reason at all, something as minor as a burnt out license plate light. And if they don't immediately see a basis to stop your car, they can even make one or force the issue. For example, they can come right up on your bumper and stay there until you speed up over the limit, or change lanes without a blinker, then they have a legal basis to stop you. It ain't tough and cops know that!

Interestingly however, in North Carolina there was a recent case where the cops boldly didn't even bother to make anything up, they admitted they had no legal basis to stop a woman's car, and the Court of Appeals in Carolina supported this baseless stop under "community care." Apparently the woman hit an animal in the road and kept on driving. The cops evidently saw this but could not put their finger on any bad driving, or driving violations. They didn't even bother to use the time honored, ride the bumper until she does something illegal protocol; they just stopped her and then moved into phase two, cut and paste a report with the proper DUI buzzwords and the rest is history.

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January 2, 2014

Marijuana in Maryland and Colorado

As know from all the news outlets, one of the exciting new laws in 2014 is that Colorado has decided to legalize marijuana as of the first of this year. It is now legal for authorized stores to sell up to an ounce of marijuana to anyone over the age of 21. Non-residents of Colorado can also purchase up to ¼ ounce, but are not allowed to transport it across state lines. You still can’t smoke it in public however, no car, no bar, etc. You must do so in the privacy of your own home; a small price to pay for the enlightened view.

Colorado’s stance on marijuana is both progressive and smart. Many states, such as Maryland, are still not ready to make the big jump yet, but they will! Maryland, like other states are waiting to see how the law pans out before they legalize. It’s only a matter of time before Maryland jumps on the pot wagon because of the only driving force moves governments, money. You see, the money that has been thrown into the system to halt marijuana use, importation, criminalization, and enforcement, is staggering. Nothing more then a tremendous waste, year after year.

Now Colorado is being more then progressive by turning the tables. Instead of wasting money to attempt to stop something that can’t be stopped they are now condoning it and more importantly, taxing it! The money that Colorado will make from this move, plus the money they will save by not wasting more money in enforcement will amount to a small fortune. Kudos to Colorado for having the insight to see the smart play and for having the backbone to make it happen! They deserve all the extra revenue from their residents and out of state visitors alike. The other Johnny come lately states will ultimately move when they see the money that they are losing and when they determine that marijuana is no worse then alcohol and most respects better, just ask Dr. Gupta from CNN. The situation reminds me of the Edward Snowden debacle. The government over reaches on it's citizens, the whistle is blown, changes are made to the system as a result of Mr. Snowden yet the government still wants to convict him. Hmmm, a real head scratcher. But that is a blog for a different day.

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December 7, 2013

Ahh-Delightful San Diego and Driving while impaired

A San Diego police officer was recently pulled over on suspicion of drunk driving. She was nabbed by the California Highway Patrol known aka CHIPS (recall the old tv program with Eric Estrada that is known by the same name- and the same name as the defendant). Evidently, she blew under .08 and was given a ticket for driving under the influence and was not taken to jail. Probably best for her that she was not jailed as her fellow inmates would probably be less then welcoming to her.

The important thing about this arrest is what her BAC (blood alcohol content) actually was at the time of the stop. Many DUI/DWI (driving while impaired) clients come into our office wondering how and why they got arrested for blowing a .06, .05 or .04. The Maryland DUI law as it is written says .08 is the legal limit and the street signs on the beltways say “over .08, under arrest.” Thus, why the arrest when under .08? The answer is the pesky charge of Driving While Impaired 21-902 (b) which is different then Driving Under the influence 21-902(a) in Maryland.

Driving While Impaired is basically a lesser included alcohol ticket for those that do not appear to be drunk yet the officer smells alcohol and has a desire to meet his monthly quota for alcohol related arrests. In other words, if the cop smells alcohol on your breath that is the first problem, despite the fact that you are allowed to consume alcohol and operate a motor vehicle in Maryland and all other states. Then whatever the cop pulls your car over for is automatically indicator 2; thus if you were speeding, that’s an indicator of impairment, if you were driving too slow, then that’s the indicator, if you made a turn without your blinker on, then that’s the indicator of your impairment. If you were driving without your seat belt on, well there you go, that’s a definite indicator that you were impaired along with the odor of alcohol on your breath. [Side note: the legislature changed the law in Maryland and failure to have your seatbelt on as well as texting are now primary offenses which the cops can pull you over directly for that particular offense.]

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