Tuesday, August 14, 2018

Preparing for an Assault Case

My client was terrified.  He was accused of grabbing a woman by the hands and puckering up to kiss her.  He denied any involvement.  I could not figure out a motive why the woman would accuse my client of this.  They did not know each other and had only met for a few minutes in a work environment.

There were no other witnesses to the event so I needed to develop reasonable doubt with other evidence.  It was basically a she said he said type of situation.  The courts are often likely to believe the "victim" because there is no obvious reason for the victim to make this up and there are strong reasons for the defendant to lie, the defendant's liberty is at stake.

I researched whether the area had security cameras.  Apparently it did have security cameras but it was a business establishment and it had changed owners.  Nonetheless, I pushed on the first donors to give me the name of the former owners and followed up the former owners.  Unfortunately not only were the cameras pointed in the wrong direction but any recording had long since been erased.  Nonetheless, at least I made the effort.

I pushed my client as to why the "victim" would make this up but he had no idea.

I listened to my client's side of the story and not only did the facts seem logical, his presentation seemed believable, he was not defensive or exaggerating in his presentation, it was matter of fact and straightforward.  I thought that a trier of fact would believe his side of the story even if it believed the "victim's" side of the story.

Finally, I brought in character witnesses who knew my client well and could testify that in their opinion and by reputation in the community he was an honest and law-abiding citizen.

I was as ready as I could be for trial.

On the trial date the "victim" did not show up.  The prosecutor argued for a postponement and I made it clear to the judge that the prosecution did not have good cause to seek a postponement.  They could not tell the court why the "victim" wasn't in court and they could not tell the court when the "victim" might be available next.  The court denied the postponement request and the prosecution was compelled to enter the case nolle prosequi.

My client was very relieved and I believe justice was served.

Provisional License and Tickets

If you don't know and you have a Maryland provisional license receiving a conviction or even a probation before judgment can have dire consequences on your ability to drive and your ability to receive a regular license.

Case in point-my client has a provisional license and he received moving violations in Maryland approximately one month apart.  My client thought it would be a good idea to pay the moving violations.

With a provisional license under the current law if you receive a conviction you must thereafter complete the driver improvement program or be subject to suspension.

If you receive a second ticket you can be subject to suspension for up to 30 days.

If you receive another ticket you can be subject to suspension up to six months.

Once you receive that conviction a probation before judgment the motor vehicle administration will send you a letter to the address they have on record.  If you fail to respond, if you fail to send them the $150 they will suspend you up to the maximum amount automatically.

My client already had one conviction and had done the driver improvement program.  He had no idea that he would be suspended for the other two tickets.

Under Maryland law there is a certain amount of time to request that the court vacate a judgment.I filed the appropriate motion with the court and the court granted my request and provided us new trial dates.

On the first trial date we were able to secure a not guilty verdict because the officer was not able to prove that my client was speeding.

On the second trial date the officer failed to show up and again we obtained a not guilty verdict.

Because we won the two cases in court the motor vehicle administration no longer has a case against my client.  Not only that but he can immediately apply for his regular license.

Something as simple as moving violations can have dire consequences if you had a provisional license.  You should seek competent counsel when determining how to address your moving violations.

Friday, August 3, 2018

Maryland Good Samaritan Law Interpreted by Court of Special Appeals

The Maryland good Samaritan law has been on the books since October 2015.  Maryland, like the rest of the country has been suffering an opioid crisis.  Maryland Gen. assembly made a determination that it was more important to protect lives then prosecute people. Basically, there should not be a criminal prosecution for drug possession if it is discovered because a good Samaritan called in an overdose problem.

Specifically the statute states as follows:

§1–210.  
(a)   The act of seeking, providing, or assisting with the provision of medical assistance for another person who is experiencing a medical emergency after ingesting or using alcohol or drugs may be used as a mitigating factor in a criminal prosecution of:
(1)   the person who experienced the medical emergency; or
(2)   any person who sought, provided, or assisted in the provision of medical assistance.
(b)   A person who, in good faith, seeks, provides, or assists with the provision of medical assistance for a person reasonably believed to be experiencing a medical emergency after ingesting or using alcohol or drugs shall be immune from criminal arrest, charge, or prosecution for a violation of § 5–601, § 5–619, § 5–620, § 10–114, § 10–116, or § 10–117 of the Criminal Law Article if the evidence for the criminal arrest, charge, or prosecution was obtained solely as a result of the person’s seeking, providing, or assisting with the provision of medical assistance.
(c)   A person who reasonably believes that the person is experiencing a medical emergency after ingesting or using alcohol or drugs shall be immune from criminal arrest, charge, or prosecution for a violation of § 5–601, § 5–619, § 5–620, § 10–114, § 10–116, or § 10–117 of the Criminal Law Article if the evidence for the criminal arrest, charge, or prosecution was obtained solely as a result of the person seeking or receiving medical assistance.
(d)   A person who seeks, provides, or assists with the provision of medical assistance in accordance with subsection (b) or (c) of this section may not be sanctioned for a violation of a condition of pretrial release, probation, or parole if the evidence of the violation was obtained solely as a result of the person seeking, providing, or assisting with the provision of medical assistance.
The statute is not a model of clarity. After this particular statute was put on the books I was present for discussions between the state attorney's office, high-ranking brass for Montgomery County police And defense attorneys. It was not clear how the statute was to be interpreted. Who was protected?
The person making the call? The person overdosing? Other people just standing around at the party possessing drugs?
The Court of Special Appeals addressed this issue recently. In that case the defendant was overdosing. His girlfriend called for medical assistance and he was arrived. At the time he was overdosing he was on probation for drug offenses. His probation officer requested that he be found in violation of probation and the judge determined that he was in violation of probation.
His attorney appealed the matter claiming that the person suffering the overdose, the defendant, should be immune from prosecution. The court of special appeals agreed holding that the general assembly intended to protect the residents of Maryland rather than prosecute them in this sort of situation.
It is still not clear what would happen to other people at the party close to the drugs or possessing their own drugs in terms of criminal prosecution.

Tuesday, July 24, 2018

Judge Femia Menu

Judge Femia's Menu

A LETTER FROM JUDGE FEMIA

My Dear Fellow Members:

As most of you are aware, I am, at the direction of Judge Shelia R. Tillerson Adams, still processing the CA docket. The way I handle DUI cases has not changed over the last thirty-two years of handling the docket or indeed over the last forty-one years of my being a judge. However because we've lost certain resources and, as Judge Bill McGrath used to say, the "price of pork chops is up", I thought it to be in order to update my written menu to reflect today's circumstances. Ergo, beginning with the March 10, 2014 cycle...

FIRST OFFENDERS WANTING A PBJ MUST:
Impaired: (Plea to b*)
a) One night in jail and a $100.00 fine** or
b) Traffic school*** and a $200.00 fine or
c) A $500.00 fine.
Under the Influence, .08-.19: (Plea to a)
a) One night in jail and a $100.00 fine**
b) Traffic school*** and a $500.00 fine or
c) A $1,000.00 fine.
Under the Influence, .20-.29: (Plea to a)
a) Two nights in jail and a $100.00 fine** or
b) A $1,000.00 fine.
Under the Influence, .30 and up: (Plea to a)
a) Five days in jail or
b) Completion of the 28 day Calvert County DWI program. ****
SUBSEQUENT OFFENDER ***** WITHIN TEN YEARS: (On plea all are found guilty)
a) offense-- 6 months in jail, all but 7 consecutive days suspended.
b) 2nd offense--30 days in jail, all but 7 consecutive days suspended.
a) 3" offense--6 months in jail all but 14 consecutive days suspended.
b) offense--30 days in jail all but 14 consecutive days suspended.
c) 4th or more offense, one half of the stated maximum in jail
All cases come with court costs assessed, which at this writing adds $145.00 to your client's fees.
All probationary periods are for one year, unpapered and unsupervised.
I remember having varied from this menu in '82. It would be a serious mistake for counsel to rely on my repeating this conduct.
As always, I honor all agreements between state and defense. Such agreements always take precedence over my menu.
Trusting this finds each of you in good health and spirits, I am,

Very truly yours,

Vincent J. Femia

The parade of stars:
* A no-blow is a b.
** A client who goes directly from the courtroom or has previously spent the night(s) in jail will have the fine and costs waived.
* * * I will accept as "traffic school" the county run school or any other AOC approved program of driver improvement or alcohol awareness.
**** I will accept any AOC approved residential treatment program with a duration of 28 or more days.
P.S. I want to remind counsel that I need an executed "Waiver of Rights" form (available on counsels' table from each defendant offering a plea to a jailable offense. Thanks.
P.S.S. Also I want to remind counsel that if you are asking for a BW recall or a continuance before me and the intended resetting date will take the case beyond Hicks, I must have Hicks waiver (also available on counsels' table) executed by the client.

And again, I thank you.

PGCBA NewsJournal PAGE 9 December 2013

Friday, July 20, 2018

Enhanced Underinsured Motorist Coverage in Maryland

Maryland has updated its uninsured motorist provisions as of July 1, 2018.

Maryland Annotated Code Insurance Section 19-509.1 - Enhanced Underinsured Motorist (a/k/a "stacking" by lawyers and those in the insurance industry). Enhanced Underinsured Motorist (EUIM) coverage can be added to new auto policies issued in Maryland as of 7/1/18. EUIM coverage will provide better protection to any occupant of a vehicle insured in Maryland when injured due to an at fault driver who is underinsured. You might be able to also add EUIM coverage on existing Maryland auto policies as of 7/1/18 depending on your auto insurance carrier. 

I encourage you to call your auto insurance company or agent and inquire about Enhanced Underinsured Motorist Coverage (EUIM) And see how it benefits you and whether you should add it To your  existing auto policy.

Tuesday, May 31, 2016

Ignition Interlock Has No Points

My client as a result of an alcohol test refusal was ordered to participate in the ignition interlock program. My client was unable to enroll and consequently his license was suspended. As bad luck would have it he was pulled over by the police and charged with driving with a suspended license as well as driving in violation of an interlock restriction.

Montgomery County has recently changed their District Court trial procedure. For as long as I can remember (almost 30 years) the states attorney was the entity which called the docket. In other words, the states attorney could call whatever cases they wanted and basically whatever order they wanted. This was a great benefit to them. If they were not ready for the case, for example, their police officers were not present to testify, they could wait on that case and call other cases instead.

This procedure changed on May 1, 2016. Henceforth the court is calling the cases. That means that the prosecution needs to be ready when the case is called and has to have their evidence ready to go. Likewise, the defense needs to be ready. In this particular case I told my client to get to the court house early in the hope that the case would be called and the prosecution would not be ready. My client who was facing a bit of jail time if he lost because of his not very good driving record, followed my instructions and appeared on time.

The defense was ready and the prosecution was not. The case was called and the judge, quite reasonably, passed the case for a few minutes for the prosecution to find their witness.

The plea offer was plead guilty to violating an interlock restriction. That is an interesting charge in Maryland. It carries up to one year in jail and a $1000 fine for a first offense and two years in jail for a second offense. It doesn't however carry any points with it. My client was also charged with driving while suspended which can carry either 12 points or three points depending on the situation. It's certainly worth considering taking a guilty plea when there are no points associated with it which can have a negative impact on your driving privilege as well as your insurance.

The plea offer was ultimately moot because the officer did not show. The prosecution was ready to drop the case. I told the prosecution rather than drop the entire case my client would pay a $50 ticket for failure to display a license on demand. Why would I tell my client to pay a ticket and lose some money when the prosecution was ready to drop the case. The answer is that the prosecution had the right to recharge the case in the future. A dropped case or technically, a case entered nolle prosequi, may be recharged by the prosecution under many circumstances. There is no double jeopardy bar when a case is dropped generally. By having my client pay the $50 ticket my client and the prosecution struck a bargain. In exchange for paying $50 they would drop all the rest of the charges. That bargain is enforceable and precludes the state from recharging my client again.

When resolving your case, think of whether the prosecution can bring back the charges. Obviously it's better to put a period on the end of your case and be done with it.

Monday, May 23, 2016

Defending the Alleged Child Sexual Offender

What I am about to blog about is at best distasteful and at worst may get me some hate mail Assuming anybody even read this).  The fact is that people are charged with heinous and disgusting crimes.  One of the more disgusting crimes is sexual abuse of a minor child.

"That's terrible.  How can you defend such a person?  They are defiling defenseless children.  They should be killed or at least locked up forever!"

Because the charges are so serious, because the consequences if there is a conviction are so dire, that is exactly why the person accused of such awful crimes needs an attorney.

If you or somebody you love is charged with such a terrible crime  you need an experienced attorney on your side to defend you against these charges.  They are after all just charges, they are not evidence of the crime.  It is the duty of a criminal defense attorney to represent the client zealously within the bounds of the law.  Put another way, everyone is entitled to representation, assertion of constitutional rights, defenses against criminal charges, the presentation of a defense no matter what the charge.

You need an attorney who can examine the evidence, and from that examination build a defense and if a defense is not possible present you in the best possible light.

Not long ago I was defending a man in his 40s who was accused of having sexual relations for many years with a girl significantly under 16 years of age.  The man had no criminal history, a long history of good employment, his own family with minor children.  These charges exploded like a bomb tearing everything he had worked for and loved apart.

As a conscientious attorney I am mindful that the effects on the little girl victim are devastating.  Nonetheless, just because she said it happened does not mean that it did happen.

Without getting into detail, the prosecution's case was fairly strong.  I suggested to my client that perhaps a plea deal should be considered.  The problem was at the prosecution was appalled at my client's behavior and made an initial plea offer wherein my client would agree to 20 years of incarceration.  Some of you might think that's lenient for these type of charges.  I think I have a duty to zealously represent my client.  We kept on negotiating but the prosecution at best offered a 15 year deal.  The upside of the guilty plea was much outweighed by the downside so we went to trial.

At the trial my client was facing six charges.  My client beat three of the charges and lost three of thee charges.  The prosecution argued for 20 years of imprisonment.  We argued for a guideline sentence and the judge listened to our argument and  my client received bottom of the guidelines which was five years of incarceration.  My client had already spent one year on house arrest which in this case counted for incarceration so he actually only had to serve another four years.

There were other factors that I brought to the court's attention that helped  persuade the judge to be more lenient in his sentencing.

Not all attorneys are willing to handle these types of cases.  I am.