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.

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.

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.