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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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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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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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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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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.

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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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As a passenger in a drunk driving arrest, can you be arrested for DUI in Maryland? In a word, not really. You would have to do something wrong or illegal in order to be arrested; just ask Reese Witherspoon, the actor that was recently arrested. So for example, the lovely Mrs. Witherspoon was recently arrested because she violated rule number one with the cops, she could not keep her big mouth shut!

You see, on the street, the cops are in control; so if you don’t desire to spend the night in jail, you have to do what they tell you to do. Sometimes the cops don’t know what the heck is going on, or where their authority ends and the law picks up so they may “order” you to do weird and stupid things, like put your cell phone away and stop recording their aggressive and unfriendly behavior. (They don’t like to be the star of Channel 11 news), but the law is you are allowed to record video of the cops (audio is a different story- one may have to be careful there). Anyway, on the street the cops have the perceived authority so it is best to follow instructions or at least to get out of the way of what they are trying to do. If you stick your nose in their business, you will undoubtedly be arrested for getting in the way or disrupting the public or obstruction of justice or interfering with police business etc.
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Just finished a successful trial in Baltimore City using Ipad/wireless/projector/screen. Case went well- back up plan was very necessary and learned some VERY important lessons for everybody! Here they are:

1. If your Ipad has 3G capability through Verizon or ATT then yes, you can use its hotspot capability as the network tool to create a network with Apple TV and thus demonstrate on a projector or a TV. I used a projector in this particular case. You do not need to have a 3G signal (ie. Internet) in order for this to work apparently.

2. Now, what they don’t tell you is that when your hotspot is turned on and idle (not being used, in sleep mode/suspended) you are drawing data from your plan. I did not know what. Then, to complicate matters, when you suspend your Ipad by pressing the top button to go to lunch or to go home for the day, unless you physically turn off the hotspot switch in settings, you are idle and STILL using data according to the Verizon lady.

Obviously, when you are doing your demonstration you are also using data. So the problem comes in when you leave the hotspot on for the evening and come back the next day (as I did) and then when you are in trial and just about ready to close BOOM, the hotspot can (and did) turn off and say you are out of data- so sorry. It takes significant back and forth to get more data up and running and to get the Ipad back up, so in my trial I was out of luck as far as wireless signal- 5 minutes before GO time.
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Following a DUI arrest in Maryland, the arresting police officer is supposed to do two things. If you have a Maryland driver’s license, he is supposed to confiscate it and forward it to the MVA for destruction, meaning you will never get that particular license back irrespective if you are ultimately found not guilty of the DUI charge. He is also supposed to give you a temporary paper license on the spot (if you are otherwise entitled to drive). This temporary license is good for 45 days from the date it was issued or it is good until you attend an MVA license hearing if you timely requested one (within 10 days of your arrest). If you have an out of State driver’s license, then the officer is not authorized to take that license from you because it does not belong to the State of Maryland, like your Maryland license does. If the officer mistakenly attempts to take your out of State license, you may want to educate or remind him that he is not supposed to take that license. However, you will need to attend an MVA hearing just the same because Maryland can suspend your privilege to drive in this State only.

The interesting part of this debacle happens when an officer takes your Maryland license and fails to give you a temporary driver’s license known as a DR-15A. Technically, it is an Officer’s Order of Suspension and a temporary driver’s license all rolled up into one nifty document. The question becomes what is the status of an arrestee’s driving privilege when the officer screws it up and fails to do what he is supposed to do.

The answer is, you are basically in limbo (useful information huh?) here’s why. The officer has correctly taken your driver’s license, however your privilege to drive is not taken away as a result of the license being liberated from your possession; that would be a violation of your due process right to a hearing before losing your privilege to drive. Thus, because the officer cannot take away your right to drive as a result of the arrest, you still maintain your right to drive.
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We had a very interesting DUI trial last week in Baltimore County, Maryland. It was the defendant’s second DUI offense at a young age, he blew over twice the legal limit, rear ended at a small sports car and forced that car into a truck. I advised my young defendant before Court that this was a serious case and he needed to prepare for the likelihood of going to jail. However, unlike many Maryland DUI lawyers, we were not going to simply plead the case. I told the prosecutor we were ready for trial- call the case. The young cocky prosecutor was more then happy to call the case for trial. He had many witnesses to the accident and all the police officers all lined up and ready to go (well almost all, he had to get the breath tech there from another state only to have his testimony quashed by me, but oh well).

So the trial begins and the Government (through the young prosecutor) focuses the majority of his effort on the accident. We stipulated (admitted) to the fact that there was an accident and that the Defendant caused the accident, but the Government persisted on calling every witness he had to prove the same issue over and over again. This wastes the Court’s time and does not please the judge. The judge is busy and wants the cases moved. They will listen to whatever gets put on the stand, but they would prefer not to have their time wasted. The Court could easily see we were trying not to waste time and the State just didn’t know what he was doing.

Ultimately we moved through the accident and the 5 witnesses called to prove the same damn thing and all the poignant pictures they had. Then it was time to get back to the nuts and bolts of proving the DUI case. The State next had to get the high BAC number into evidence, had the State done this simple task the case would have been over and the Defendant would have gone to jail. This should not be too much of an issue except for the fact both the cops and the prosecutor both screwed up the breath test.
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