February 10, 2015

Marijuana and driving under the Influence

The issue of DUI by Marijuana (driving under the influence) has never been more relevant than now when states are beginning to jump onto the pot bandwagon, legalizing Marijuana for recreational and or medical use while many more states have put the issue on their 2016 ballot.
The number of drivers charged with operating under the influence of Marijuana is likely to grow dramatically and it behooves us to study the laws we currently have in place and see whether they are adequate to protect the community and the driver. We will also look at the financial gain v. loss to the state from the legalization of Marijuana.
Is driving legal after ingesting Marijuana?
Generally there are three approaches taken by states regarding driving after ingesting weed; the majority of states will charge a driver after obtaining sufficient evidence to prove his or her impairment based on erratic driving factors, a failed field sobriety test and blood work.
A minority of states, including NY, has zero tolerance laws with regard to Marijuana use and will arrest for DUI for any amount of THC or metabolites found in the driver’s system. THC, the psychoactive component of Marijuana can remain in the urine for many days, while metabolites can be detected for several weeks or more for regular users; long after the driving impairment has worn off.
The remainder of the states institute thresholds similar to BAC levels used for DUI alcohol. 5 nano-grams of THC metabolite per milliliter of blood is the legal limit used by many of these states. Colorado is one of the states that have instituted this limit after legalizing Marijuana for recreational use.
Whatever the individual state guidelines are, make sure you understand and adhere to them. In the words of Attorney Zev Goldstein, “Your good record is arguably the most valuable thing you own, protect it from criminal drug/ or operating under the influence of drugs convictions”.

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February 1, 2015

Will I lose my job if I get arrested for DUI in Maryland

Will I lose my job if I get arrested for DUI? Always a question on the lips of those arrested for an alcohol violation in Maryland. The short answer is probably not! In our over 20 years experience I can count (probably on less than one hand) the number of times a person has lost their job for a first or second time DUI arrest. Obviously there are many factors that play into how one's employer may feel about such and arrest and therefore, one of the threshold questions may be 'will the employer find out about the arrest?'

The regular employer who is not a government entity does not typically sit around checking Maryland's government websites to determine if one of their people has been arrested and therefore the decision is left to the employee to determine if and when this private situation should be made public.

At a minimum, unless you are under some form of legal obligation to disclose a DUI arrest, it seems best to disclose this information (if at all) after you have been to court. The reason for this is that there are many possible outcomes from the arrest, including a NOT guilty. Therefore, putting yourself in a negative light before going to court may not be the best idea. For example, telling your boss what happened two days later, you retain Bruce Robinson & Associates to defend you and you win your case in court. Now what? The employer has been stewing over the situation for months and now the arrest has gone away. You still look bad in the employers eyes, you could be passed over for promotions or any number of things.

Another possible outcome is going to court and receiving a probation before judgment (PBJ); this is not a conviction on your record and you do not receive the 12 points you would otherwise receive for a DUI conviction in Maryland. So now what do you tell your employer? You were arrested? You were not convicted? They are already pissed to hear you got a DUI and if you drive their cars during work, there could be an issue. http://www.mddwi.com

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January 23, 2015

Is it unlawful to blow less then .08 BAC following a DUI stop?

Often times people will come into the office charged with DUI after providing a breath sample of less than .07 or .08. They wonder how it is they were charged in Maryland for DUI/DWI when they blew a legal BAC number between .01 and .06. This is an important question and a misnomer in the legal system. The TV commercials, billboards, and public announcements all indicate that a .08 BAC is the legal limit for alcohol in Maryland. Unfortunately, the little-known truth is that this is simply not correct.

You see, police officers in their zeal to make an alcohol related arrest and show the brass that they are making Maryland's streets safer, while meeting their quotas, will happily arrest a driver with any BAC content as long as the driver is demonstrating some form of impairment. What is some form of impairment?

Well that's really the easy part, some form of impairment means failure to stay within your lane of travel, such as crossing over the white dotted lines, it could mean speeding, and it certainly means a failure to perform the field sobriety test adequately when stopped by a police officer for any reason such as not wearing your seatbelt. In other words, failure to wear your seatbelt is now a first-tier offense meaning that you can be stopped and ticketed for this offense (in the past you could not be stopped for this violation alone). Once the police officer senses the odor of alcohol on your breath for something as minimal as one beer she will automatically get you out of your car for field sobriety tests. If you are like every other normal citizen you will not perform the field sobriety tests with 100% acuity and therefore the officer will arrest you for failing to perform the roadside gymnastic test adequately.

Once at the police station you will be asked to provide a breath sample which may come back low in the .02-.05 area and this is where you get charged in many cases despite the low and legal BAC number. It places the police officer in an awkward situation because she has wasted her time with a stop and dragging you to the station and wasted the time of the breath technician only to come back with a low and legal BAC. Nobody likes to have egg on their face so to avoid that you will be charged with DWI or driving while impaired despite having what you were told was a lawful BAC.

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January 12, 2015

Can I be arrested if the cop did not see me drive

Can you be arrested for DUI in Maryland if the police did not see you driving your car? To evaluate that question, it must be further broken down to were you sitting in the car or were you outside the car when the police arrived?

The easier question concerns if you are outside your car when the police officer arrived. If you are simply outside of your car when the police officer arrived and you are inebriated without more, such as an eyewitness or more commonly, ratting yourself out to the police, the answer would generally be no. The proof required by the state to prove the elements of a DUI charge would generally be inadequate under these circumstances.

The police are quite efficient at applying pressure and asking questions of a suspect in order to get them to hang themselves. The first question from the police officer will be, were you driving this car or "what happened when you were driving this car?" And then typically the defendant engages in a conversation thereby indicating that he was the driver and providing evidence that the state can now use against the driver in court. This is why the Miranda warnings indicate that you are not compelled to give evidence against yourself and that anything you say can and will be used against you in court. Make no mistake, they will use this type of evidence against you and it could be the only evidence the government has to convict you of the charge.

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January 6, 2015

How & When to tell your boss you have to go to court for DUI

One issue that seems to come up with regularity is whether to tell one's employer or boss that they were arrested and charged with a DUI or other criminal event. Certain people with high levels of clearance or security may be required to inform their employer upon any infraction of the law. However, the majority of people do not have such strict limitations placed upon them. Some people may be concerned because their employee manual may speak to ramifications of a DUI arrest or they may have heard stories about other folks similarly charged.

For the normal person who does not have a clear and absolute obligation to tell their employer, we would generally suggest waiting until the matter is resolved in court, and even then we might consider the necessity of sharing such personal information. The initial problem that comes to mind with being charged is that a charge is not a conviction and therefore going to one's boss and indicating they were charged with a criminal offense could place that employee in a less than favorable light. Then, when one actually goes to court and if they avoid a conviction or better yet beat the charge completely, that person will have unnecessarily put a stain on their employee record, as far as the boss is concerned, even if their case is won. It is for that reason that we would typically say wait and see what the outcome of the event is before telling anybody about the event. Additionally, some employers may take a fairly strict stance on this type of matter which may be completely unwarranted if the matter is won in court.

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December 24, 2014

Continued Erosion of your Constitutional Rights

Justice John Roberts and the conservative Supreme Court of the United States of America strikes again. In an 8 to 1 decision written by Chief Justice John Roberts the court held that evidence gleaned from an otherwise illegal search and seizure can be used against the defendant if the stop was based on good faith. This is a horrible precedent to set for an already strained American people who are sick and tired of law enforcement overstepping their boundaries and in some cases making fatal decisions which go unanswered the courts.

While this decision does not rise to the level of law enforcement killing suspects and police not being indicted, it does further offer the police a wide net to work with because evidence that was formerly obtained as the result of an illegal search and seizure was considered tainted and not usable in court; but as a result of this decision it appears that such evidence, if obtained under the color of law, even though mistaken will be permitted to be used against the defendant.

The decision in Heien v. North Carolina involves a case out of North Carolina in which a police officer pulled the defendant over because his right brake light was out and the officer mistakenly believed that give a basis for a lawful stop. In North Carolina only one brake light is required to operate the vehicle and the officer was mistaken on the basis for the stop. As a result of the illegal stop, the defendant consented to a search of his vehicle which resulted in the location of CDS in the trunk. Counsel for the defendant subsequently attempted to suppress the illegal drugs as a result of an illegal stop. The trial court denied the argument, the North Carolina Appellate Court suppressed the evidnce and the Supreme Court of the United States has now held that despite the stop being illegal, if the stop is done in good faith, subsequently obtained evidence can still be utilized against the defendant.

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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.