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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September 24, 2012

Manslaughter Anne Arundel County- NOT GUILTY

My 24 year old client was charged with Manslaughter when it was alleged that he was weaving/speeding in traffic and rear ended a car in Anne Arundel County. The case was pending for nearly one year. The witness statements and the physical evidence did not support these callous and baseless accusations.

Thanks in part to shoddy police investigation combined with selective investigative techniques, ie. taking statements from those witnesses that support the police theory and steering clear of witnesses that did not support the police theory, the Jury remained unmoved by the Government's pleas for justice for the deceased victim.

The Government put on it's one day case and the defense put on its witness for approximately 10 minutes and rested the case. The defendant did not even need to testify. 3 hours later (including lunch breach) the jury came back with a NOT GUILTY verdict on Manslaughter and Reckless driving, the most serious charges. The jury found the defendant guilty of minor traffic offenses like speeding and negligent driving; he received a $500 fine.

The laws in this state support a manslaughter finding where a victim dies and the defendant is found to have operated his car in a grossly negligent or wanton and reckless manor. While this sounds reasonable, the Government is contorting this standard to achieve convictions and cases where they should not be.

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March 9, 2012

Drug Recognition Expert (DRE) Evidence fails Court's Test

A very important and favorable decision was recently released by the Circuit Court in Carroll County, Maryland. The opinion was the culmination of many DUI cases which utilized drug recognition testimony (DRE) to assist in the conviction of drivers thought to be impaired by drugs, as opposed to alcohol.

DRE evidence is seriously sketchy evidence offered by the State and garnered by members of the local police department that are known as DRE's. The individuals are "trained" in about one week to identify persons that are under the influence of drugs by looking at their eyes, taking their pulse, feeling their skin, listening to them speak, possibly asking them to engage in roadside gymnastics (Field Tests) and various other methods. The most important of which is asking them "what drugs have you recently taken?" After that last question, miraculously the police DRE comes up with a diagnosis of what drug the defendant is on.

Needless to say, this DRE testimony is largely a huge bucket of crap and up to this point, too many judges and or juries have been bombarded with this garbage science and charged with the responsibility to convict Defendants. Part of the DRE examination is similar to the field sobriety tests which defendants are called upon to perform late night on the roadside; also a huge load of crap and perhaps now more eyes will be opened to this junk evidence and perhaps more courts will exclude the evidence.

The Carroll County Court held a lengthly hearing on the matter hearing from many experts on both sides of the fence. All the best was brought to bear by both the State and Defense. The Court, after considering the case for an extended period of time and hearing from all the experts came up with the only logical conclusion possible, this DRE evidence is crap and should not be allowed to persuade our juries. It will be interesting to see if Maryland's higher Courts are called upon to review the matter, which would only further crystalize this wonderful and long awaited opinion. For more information see State of Maryland v. Brightful, et al. http://

January 8, 2012

Police quotas rear their ugly head...again

I have written about DUI arrest quotas before, they are illegal. Quotas are when the police brass tells the rank and file police officers that they are to apprehend X number of traffic/dui offenders over a given period of time. If the cops do what they are told, they can be rewarded with anything from advancement to bonuses to time off etc. If they fail to meet their quota then bad things can happen, like retraining (think Cold War Russia).

The police routinely deny utilizing quotas stating that they are illegal (wink), which in fact they are according to Maryland Law. The basis for a stop and arrest is supposed to be purely one of probable cause of a crime, not one based in motivation of the police officer to achieve something of value for doing his job.

It seems that Howard County law enforcement (in this instance the Howard County Police Chief allegedly) got their/his hand stuck in the old cookie jar. Judge Hantman, sitting on the Howard County District Court bench heard the matter of a female driver that was stopped for speeding. According to Court documents, she had a .17 BAC and was charged accordingly. However, it appears that the police and the brass, acting allegedly in some part as a result of a Federal Grant, were given quotas to meet. This is a no-no. The brass knows this and the police know it too. Now, thanks to the enviable Honorable Judge Hantman, the police know that the Courts are watching, and that the Judges are not just going to go along with business as usual. Ie. Wink wink, arrest everybody and keep up numbers up, even if they were driving below the speed limit and have a .04 BAC. (which does happen).

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November 16, 2008

DUI Roadblocks in Maryland

The 4th Amendment to the United State's Constitution says "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated..." This amendment, part of the Bill of Rights, made applicable to the individual states through the 14th amendment Due Process clause as established by the Supreme Court in Mapp v. Ohio, 367 U.S. 643 (1961), says that citizens shall not be stopped in their cars, or otherwise without probable cause or reasonable suspicion to believe that a crime has been committed. This law was upheld by the Supreme Court in Delaware v. Prouse where the Supreme Court held the 4th Amendment right to privacy outweighed the states desire to stop cars to check driver's licenses and registration cards.

However, the Supreme Court modified its position in the decision of Michigan v. Sitz where it held that the prohibition of stopping an automobile in the absence of probable cause was outweighed by the desire to eradicate drunk driving on our streets. The Justices voted 6-3 in favor of allowing the "DUI Exception" to the Delaware v. Prouse opinion.

Maryland has also visited this particular issue in the case of Little v. State 479 A.2d 903 (1983). The Court ruled that roadblocks were legal in Maryland because of the State's important need to stop drunk driver's on Maryland streets; however, the Court did recognize certain procedural requirements that must be satisfied in order to make a roadblock lawful. If a roadblock fails to meet procedural requirements, then the resulting arrest is illegal and the case will be won or dismissed in Court, such is what happened to my client this week in Baltimore County District Court. Case dismissed, details follow....

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July 9, 2007

Why DUI defense attorneys do what we do (Part 2)

In my prior DUI post on this topic I was explaining that the criminal justice system for some reason treats DUI suspects differently and with less privilege, than a murder suspect. This is of great concern to the DUI bar for many reasons. The most important of which was already discussed, that is, we can not permit an erosion of constitutional rights in the name of convenience of prosecution. This ideology takes us down a scary and slippery slope which we as Americans have never permitted, so why permit it in DUI cases?

I must say the degree of enthusiasm and the extent to which the government machine is willing to sacrifice our legal rights strikes me as rather ironic when considering the large variety of people who actually get charged with DUI cases. That is, the very law makers who seek to limit your rights and place the iconic letter on your back are also the law breakers. Starting with a certain former President, charged with DUI, police officers, prosecutors, law makers, countless congressional representatives, doctors, lawyers, and Indian chiefs. A Google search on the topic would reveal countless DUI cases involving any group, for example today, July 4th, 2007 the Chicago Tribune has a piece on a police deputy stopped for suspicion of DUI and wouldn't you know it, there was a prosecutor in the car with him. The story continues that they were processed and released without charges. Whoops, somebody forgot to charge the police deputy with DUI, how could that happen? Now everybody involved is suspended and it's all being reviewed for procedural errors which they admit occurred.

How about the Delaware State Representative who was pulled over in December 2006 and flashed his legislative I.D. card and was released without charges by two Ocean City Maryland police officers-whoops. It's just more than ironic, perhaps hypocriticalthat everybody wants to hammer the DUI suspect, limit their rights, convict as quickly as possible until it happens to somebody in the spot light or somebody with authority, then it's time to drop charges, run the other way, and turn the other cheek.

Not concerned about your rights yet? Alright. You are driving home from dinner on Friday night, wife and family in the car. You are driving perfectly because you not impaired. You had a glass of wine with your dinner, maybe two. You are herded into a police sobriety checkpoint or road block which is set up on the road you take home. After sitting in a backed up traffic line for 5-10 minutes while the cops engage each driver in conversation, it is your turn. You are not concerned because you are not drunk. Good evening Sir- have you had anything to drink tonight? Your heart jumps into your throat, you know you are not drunk or impaired so you answer truthfully, a couple of glasses of wine with dinner. Sir can you please pull over to the side for field sobriety tests.... guess what? Unless you are a gymnast you are going to jail right now, in front of your wife and children who are horrified. You are going to be charged with a DUI, you have to hire a lawyer, go to court, complete an alcohol class, be on supervision and pay all kinds of money for lawyers and, you guessed it, government fees and fines.

Why? You only had two glasses of wine at dinner, you were driving fine how could this happen? Heck after taking you to the station you only blew a .06 which is below the legal limit of .08. What happened? Well in today's climate nobody gives a darn. If you admit to drinking alcohol you will be stopped and asked to do field exercises. If you perform those exercises, you will undoubtedly fail them because they are foreign to you and you are nervous and scared. Once that happens, you are going to be charged no matter what, whether you blow a .04, .08 or more. I know because I see it every day. I had a lady involved in a serious single car accident who blew a .04, she had wine with her Mother over lunch. She was charged. I got her off the charge, but she still had to go through all the emotional turmoil and expense of the process.

The point I want to advance here is that 1) this can easily happen to any person any time no matter who they are- unless you just do not consume any alcohol and more importantly 2) this should not happen at all and here's why.....

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July 4, 2007

Why DUI attorneys do what they do (Part 1)

Why do DUI defense lawyers defend people accused of drinking and driving, after all, it's a terrible crime, people get hurt and sometimes worse? How can we possibly do this? Do we condone the use of alcohol and driving? Do we lack a conscious or compassion for our fellow man? The answer is, it is our conscious and compassion for our fellow man that drives us. What I condone is the applicability of the United States Constitution, for which many generations of men have fought and lost their lives. Thomas Paine once said, "It is the responsibility of the patriot to protect his country from its government." A review of the news around the globe reflects countless instances of government trampling on the rights of its citizens. The United States constitution is over 200 years old and has guided our laws, our citizens and our government effectively because we have always had a government and a Supreme Court willing to fight to uphold its tenets. However, increasingly there have been chinks in the armor of the Constitution in the name of expediency. Increasingly courts all over this country are eroding the Constitutional rights of citizens to be safe and secure in their "persons, papers and effects." (Fourth Amendment U.S. Constitution). If we blindly continue to allow these transgressions of the Constitution, if we turn a blind eye to these matters because it is convenient to prosecute cases, then tomorrow it will be a different erosion of your personal rights to privacy that were guaranteed to you as a citizen. Each time there is a transgression or an erosion of civil liberties in the name of convenience of prosecution, we bring ourselves one step closer to a society which our forefathers fought and died to extricate us from.

Did you know that if you were convicted of the worst crime possible, murder, that you have more rights and Constitutional protections than if you are charged with the misdemeanor of drinking and driving? That is, as soon as the murderer is taken into custody the first thing that happens is that he is read his Miranda rights; he is essentially advised to shut up and get a lawyer (albeit many people never heed this warning). Every step of the way thereafter, due process mandates that a suspect have a lawyer present to protect his legal rights, despite the fact he may have killed another human being and deprived that person of their rights.

Your government has the right and the ability under law to deny a citizen of their property, their liberty and their life. If a government agent, the police, charges a citizen with a crime, another government agent, the prosecution picks up the ball and prosecutes the citizen. Then a judge, another government employee, or a jury hears the evidence which is offered by the government. The government has an endless amount of resources, financial and otherwise to obtain evidence and to support its version of a case. The ONLY THING standing between the police, the prosecution and government, the only thing an accused has to rely on to protect him from losing his liberty, his property, or his life, is his defense attorney. His attorney is his key to bring to bare the case law, the statutes, and the facts in order to contradict the awesome power of the government. His criminal defense attorney is all he has to protect him from the system.

In any individual case the system may be correct, the defendant may have done what he is accused of doing and may therefore need to be punished (unless he is a friend of the President like Scooter Libby, in which case the rule of law does not matter and he will be set free). If this "system" is correct, then so be it, let the system prove its case to the satisfaction of a jury and punish the defendant accordingly. However, there are also countless times when the system is not correct; where the wrong defendant has been accused, where the crime has not been committed as charged. It is in these cases where the defense attorney is needed the most and in order for the defense attorney to be effective on the part of an innocent person, the attorney must also defend the guilty defendant. That is, both defendants, those actually guilty of the crime and those innocent of the crime have the absolute right to and a need for a defense. Both defendants have the right to an even playing field under the Constitution because if a defendant is in fact guilty, the State should be able to prove its case beyond a reasonable right, right?

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