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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November 28, 2013

Mayors DUIs and Drugs - out of control

I thought I had heard it all when the mayor in Toronto- Rob Ford admitted to partying and smoking crack! Funny, but not really. You can almost look at the man and see crack written all over him so since you elected him shame on you. Now you can't get rid of him. However, if you use Washington DC as an example, Mayor Barry, well heck it's almost a right of passage. Not to mention that he was re-elected after this miraculous concession of smoking crack!

Having said that, the purpose of this article is to shed some light on the attractive Grafton, Cleveland Mayor Megan Flanigan. She allegedly was driving drunk when she struck a fire hydrant very close to her house. It is unclear to me what happened next but the article seems to indicate that she was on scene when the cops arrived, possibly still in the vehicle. I don't know if she left or could have left the scene and returned when the police arrived. The cops smelled alcohol on her breath and requested she perform the normal field sobriety tests (mistake #1) which apparently did not go well and she was arrested and taken to the station. The article did not indicate what if any number she blew at the station (mistake #2) if she did blow.

The article did continue on however that after she left the police cruiser evidently they found some illegal pill of some kind in the back seat which they are attempting to charge the mayor with. This of course will not stick because the police failed to do their job correctly, but that does not stop them from attempting to stick the pill on the drunken mayor.

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November 24, 2013

Primary Offense v. Secondary Offenses in Maryland

There are primary traffic offenses in Maryland and there are secondary offenses. A primary traffic offense in Maryland is one which gives the police the immediate ability to pull you over and issue a citation. Conversely, a secondary offense is one in which the police can issue a citation but they are not permitted to pull your car over in order to give you that particular citation. Thus, last year a seat belt violation was secondary and thus you could receive a ticket for that but the cops would have to first pull you over for a primary offense such as speeding.

The law has changed this year. Seat belt violations are now primary offenses; thus the police can now pull you over and effectuate a stop for a seat belt violation only. Additionally, texting on your phone has also become a primary offense whereas that used to be secondary. The other law that recently went into effect is designed to protect the cops on the road during a stop. As you come upon a police officer fulfilling his monthly quota by writing a motorist a speeding ticket or a ticket for a burnt out license plate light or some other equally notorious offense you are now required to brake, slow down and if possible to change lanes away from the officer. If you fail to brake, slow down and/or attempt to change lanes where possible, that officer can now quickly finish writing his speeding ticket and pile into his shiny cruiser and chase you down and issue you a ticket for your failure to follow this new traffic law. Additionally, if you or your passengers are not wearing seat belts you can be ticketed for that as well. Then while he is writing your tickets, he can keep a keen eye on the next victim who fails to brake/slow down and or change lanes and repeat the cycle.

According to a recent news report following a potentially serious accident in Virginia where a DUI slammed into the back of cruiser parked on the shoulder, roughly 12 officers die each year from motorist seeing police cruisers at night and then slamming into the back of them because it can be hard to tell initially that the cruisers are parked and not moving.

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November 13, 2013

When a Judge gets arrested for DUI

No matter what side of the law you find yourself, nobody is above the law. Just ask Florida judge Cynthia Imperato, age 56. Evidently, this former police officer, turned lawyer, turned judge who has a reputation for being tough on criminals found herself in very hot water as she was allegedly weaving all over the highway. The link contains a 911 call to police for a person driving a white mercedes weaving all over the road, the police were able to catch up to this judge and ultimately arrest her. While initially refusing to exit her car, she attempted to call her lawyer, but was unable to dial the numbers on her phone- don't you hate when that happens?

Ultimately, the cops got her out of the car whereupon her judge/legal training kicked in and despite not being able to dial her own mobile phone, she did remember not to attempt the field sobriety tests and refused to blow in the pesky breath machine at the police station. She was arrested after 1:00am in the morning and was apparently detained until after 7:00am at the police station. I hope she didn't have to go directly to the bench to pass judgment on other DUI cases after spending the night in jail. Hopefully they allowed her to go home first and shower up and then play the holier then thou card at work by "throwing the book" at other DUI defendants, something she apparently is known very well for doing.

The thing that bothers me is that we are all human and therefore make mistakes. Now I do not condone drinking and driving, it is unsafe, illegal and just a bad idea. But what is equally worse is some judges and prosecutors who don't seem to understand that mistakes get made but they are still just "one off" mistakes and defendant's lives should not be thrown into total upheaval.

This particular judge has a record for crushing people that are found guilty of similar charges, I wonder if she believes that she should be "crushed" because she made an equally unfortunate and dangerous mistake? Would she desire to come before herself in court, or would she rather be in front of a different judge who may be more even handed and understanding then she would be to herself?

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November 4, 2013

Nuance of DUI/Criminal Defense

Maryland DUI defense is similar to criminal defense and even civil trial work in that one has to be careful when determining what witnesses to put on the stand and what they will say. In DUI defense, generally speaking it should be a rare occasion that the defendant takes the stand to testify on his own behalf. The reasons for that are 1) defendants have the absolute right not to testify in court with the judge inferring nothing negative from that decision and 2) when a defendant does testify it gives the prosecution the opportunity to ask him a variety of punishing questions which more likely then not gives the impression to the judge of guilt rather than innocence. The way to protect against this line of questioning is to not have a defendant testify at trial.

Another interesting nuance concerning who testifies in court and who does not is that the focus of the trial will be upon the testifying party(s); thus when the state puts on its own witnesses such as the arresting officer and that officer is cross examined by the defense, the focus of the trial will be upon what that officer did/did not do during the stop/arrest. It will be less upon what the defendant may have done.

Expanding on the defendant testifying in his own defense or even at sentencing, aside from realigning the focus of the case back upon himself, there is frequently the concern that the defendant may say something that is unwise, illogical or untrue under fire of cross examination. Once that mortal sin has been committed, there may be little chance that a successful defense can be resurrected from the ashes.

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September 20, 2013

Driving on Suspended License & the MVA Screw Up

Have you been pulled over and ticketed or arrested for driving on a suspended license in Maryland when you know you are not and should not be suspended? Did you get an interlock on your car in order to preserve and protect your license only to have deputy officer pull you over and tell you that your license is suspended anyway? Well, you are not alone! The Maryland Motor Vehicle Administration is screwing up and the worst part, they don't give a damn!

We have a number of clients that have dutifully installed the interlock on their car as required by law to preserve their driving privilege only to be wrongfully, negligently and maliciously pulled over by the cops and in some cases actually arrested and incarcerated- wrongfully. When we contacted the MVA to find out what their problem is we were told "sorry" the branches of the MVA just aren't talking to each other. That is almost funny when you consider that cop cars have cameras on their trunks to scan all passing motorists which instantly communicate with the MVA to see who is suspended or wanted, etc. So they can use high technology to accomplish their desired mission in seconds; but when it comes to something as simple as common decency and protecting the innocent, the MVA cannot seem to accomplish this simple task.

We do not feel the MVA answer or their effort is adequate. The negligent failure of the MVA "branches" to talk to each other should not and will not be the problem of Maryland's motoring public. For the majority of Marylanders a driver's license and one's freedom is of paramount importance. Taking either one negligently and recklessly with complete disregard for the law is not only a disgrace it is actionable. We will move to protect our clients and the citizens of Maryland that find themselves in this unenviable situation.

If you have timely placed an interlock on your car and have subsequently been wrongfully arrested or even ticketed for driving on a suspended license, feel free to contact us asap, we will be happy to enforce your rights against continued government negligence, bureaucracy and tyranny.

June 26, 2013

Lowering the DUI/BAC limit to .05

The NTSB the transportation safety agency of the Federal Government is proposing to lower the legal limit for DUI to .05, as opposed to the .08 where it presently stands in all states including Maryland. Have no fear, it is highly unlikely this change will pass congress at this time substantially in light of the fact that Congress can't agree on the color of the sky on beautiful sunny day. However, I imagine that the matter will continue to be brought up until one day it does pass Congress. You see, many other countries already use the .05 standard for impairment as the powers that be have conducted studies and feel that drivers begin to be impaired at this low level.

This proposed change is interesting on a number of levels. To begin with BAC level used to .15 for impairment and then the Government lowered it to .10 feeling that was the proper level for impairment and then changed it to .08. Interestingly, the Government appears to continue to do testing and the number for impairment continues to drop. Perhaps the alcohol level in drinks is getting stronger or perhaps alcohol in general is reacting differently to people then it did in the "old days". Perhaps these are just arbitrary figures in the first place on the way to a .00 which ironically this DUI attorney feels should be the limit for driving.

You see, all these BAC numbers are arbitrary and what law enforcement does not tell you is that even with a .08 limit, if you blow a .05 at this time, you are still under arrest! They simply call in impaired as opposed to under the influence and most drivers are unaware of that. Most drivers wonder how they are being arrested on a .05 or .06 but it happens all the time.

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