Tuesday, November 29, 2011

The Drivers License I Save May Be Your Own



My client was looking at losing his license for 120 days or paying $1000 for a ignition interlock for one year.

The allegations were that the police officer came upon a single vehicle accident. My client allegedly ran into a tree. Client allegedly refused the breast test for alcohol and his permanent license was confiscated. He kindly asked for a hearing before an administrative law judge.

I prepared as best I could with the limited information that I had and appeared with him at the hearing. I thought that I had a strong case because the DR 15 A (temporary license issued to the driver) did not specify location of the offense and the policeman involved was a county officer and not a state trooper. County officers have jurisdiction generally limited to their county, state police have jurisdiction throughout Maryland) I was ready to argue that the motor vehicle administration failed to prove that it was a police officer because we do not know what what County this occurred in and this police officer may have been outside of his County and therefore acting as a private citizen.

My hopes were dashed when into evidence came an accident report as well as the drunk driving information report. Those of those had a street address and the County. I was surprised to see those pieces of evidence. I objected but really had no grounds off the top of my head. My objection was overruled. My first argument went down the tubes.

I was prepared and still had a second argument. The temporary license was not signed by the officer or my client. I argued that my client suffered prejudice because he lost his privilege to drive without the benefit of notice and a hearing. This judge argues that the only issues before him were the seven issues specifically listed in the Maryland transportation article 16 205.1. He felt that due process is not something which is available at these hearings. His belief was that the Court of Appeals was also limiting all arguments to the seven issues. My second argument failed.

My third argument was a winner. My client spoke maybe 10 words of English and did not understand it and could not read it. I argued that my client was not fully advised as to the sanctions for taking a test or refusing a breath test as required by statute and did not make a knowing decision which I believe Foreman versus MVA stands for. The judge agreed with this argument. The judge took no action against my client's license and further my client is entitled to a refund of the $125 hearing fee.

Thursday, October 27, 2011

Sometimes You Need to Push the Insurance Company



My client was driving down the road maintaining her lane. A truck passed her and cut into her lane causing a collision. Both vehicles stopped. The truck driver claimed that my client swerved into his lane. My client claimed that the truck driver swerved into her lane. Fortunately, there was an independent witness who supported my client's version. My client had an old car and the damage was sufficient to be a total loss. My client submitted the estimate of the vehicle to the truck's insurance company. They denied her request based on their driver' s story. My client submitted the witness statement to the insurance company. This witness was independent, did not know the trucker or my client and had no stake in the outcome of the matter. Still the insurance company denied her claim.

My client hired me and I filed a lawsuit in her District Court for the value of the car. My client did not suffer any personal injury. I served the trucking company. Shortly thereafter my client received the full amount of the value of her car. A smile and a stick gets you further than just a smile. At least that's how it is with insurance companies.

When is a car not a car for drunk driving purposes? When it is a shelter.



The police officer saw my client parked along the side of the road in a legal parking space with the headlights on at 3 AM. The officer circled around the block and 5 min. later my client was in the same place. The officer got out of his patrol car and took pictures of my client who was in the driver seat slumped over the steering wheel. The headlights were on, the engine was running, it was late December and very cold outside. The officer woke up my client and she did poorly on the field sobriety tests and later took a breath test which indicated that she was somewhat drunk.

At trial the state was able to prove the above things. On cross-examination I was able to confirm that the car was legally parked and properly parked and had not moved the two times that the officer saw the car. Also, the car had not run into the car ahead of it. I called several witnesses which established that my client had gone to a birthday party at a restaurant. At the restaurant she had been drinking. Because of that drinking she had a designated driver take her car to the next spot. At the next spot she drank some more, did not feel well and told the group that she would wait for them in the car. It was cold outside and she turned the car on for heat. The group could not find her and although they made several calls to her she did not pick up because she was tired and had fallen asleep in the car.

At the end of the case I argued to the judge that under Maryland law our highest court has held that in some very narrow circumstances, a drunk person may use an automobile as shelter. We were able to demonstrate that she had not driven a car drunk, that she had no intention of driving the car and that indeed she was only using it for shelter. I believe what swayed the judge was one witnesses testimony that my client had already established a designated driver when she first left the restaurant. The judge acquitted her of all charges.

I want to stress that although the above is an accurate statement of the law in Maryland in my opinion, it is a very narrow exception. In other words, this is not a recommendation that you get drunk and get into your car. Take a taxi, take a bus, call a friend, stay away from your vehicle when you are under the influence.

Client Guilty of Driving under the Influence of Drugs? Only if the State Can Prove It



The officer was told that my client was weaving all over the road and had struck a curb. The officer found my client and his front tire was flat and he was driving along on the rim. The officer stopped my client. He claimed that he smelled a strong odor of an alcoholic beverage and that my client had very poor coordination. He arrested my client for drunk driving.

At the police station my client took the breath test which registered 0.0 (no evidence of alcohol). At that point the officer concluded that my client must be under the influence of drugs and summoned the drug recognition expert and also took blood from my client to test for the presence of drugs. The drug recognition expert concluded that my client was indeed under the influence of drugs.

The burden is always on the state to not only produce the evidence necessary to convict, but also to produce evidence which must persuade the trier of fact beyond a reasonable doubt that the defendant is guilty. On the first trial date the state failed to have their evidence all together. Ironically, the prosecutor told me that he had all of his witnesses and what did my client want to do. I consulted with my client. I told the prosecutor we were ready for trial. At that point the prosecutor told me that they did not have the results of the blood test and could not go forward. I thought that to be somewhat dishonest of the prosecutor and the case was called and postponed. I did ask that the judge not grant the prosecution any further in court continuances and the judge agreed.

After this trial date I requested that my client provide me with his medical records which demonstrated that he had significant back and neck injuries. With this evidence I believed I could argue to the trier of fact that it was not drugs that caused his impairment but significant injuries.

On the second court date the prosecution did not have the drug recognition expert. Again the prosecution asked for a postponement and the judge denied this based on the earlier judge's ruling (which I had requested). The prosecution realized that they had a problem with their case and we were able to work out this very serious case down to a negligent driving disposition. My client received one point and a minimal fine.

Thursday, September 22, 2011

Do Not Miss Your Motor Vehicle Administration Per Se Hearing

My client recently requested a motor vehicle administration hearing after he was stopped for alleged drunk driving and providing a breath sample which revealed too high an alcohol content.

He thought his hearing was on September 9. The hearing was actually on September 6. He missed his hearing.

I am working on trying to get him a new hearing but his license is suspended while we are waiting for this. The statute goes against you. Transportation Article 16-205.1 Provides As Follows:

(iv) In the absence of a compelling reason for failure to attend a hearing, failure of a person to attend a hearing is prima facie evidence of the person's inability to answer the sworn statement of the police officer or the test technician or analyst, and the Administration summarily shall:

1. Suspend the driver's license or privilege to drive; and

2. If the driver is detained in a commercial motor vehicle or holds a commercial driver's license, disqualify the person from operating a commercial motor vehicle.

Maryland also has regulations known as Comar and they provide as follows:

11.11.02.12

.12 Failure to Appear.

If a licensee who has been given notice of the hearing fails to appear for the hearing, the Administration may:

A. Suspend the applicable privilege pending the licensee's appearance at a hearing on a date set by the Administration; or

B. Upon good cause shown to the satisfaction of the Administration as to why the licensee could not appear at the originally scheduled hearing, terminate any suspension imposed under this regulation, and send notice to the licensee of the newly scheduled hearing date.

My argument is that if they cannot find good cause then they should still give him a hearing at provided for under section A. above. The jury is still out on whether they will.

Meanwhile, my client is definitely suspended and cannot drive because he missed a hearing.



Acquittal of All Felony Charges in Robbery Case

my client was charged with robbery, robbery with a deadly weapon, use of a handgun in the commission of a felony, conspiracy to commit robbery, first-degree assault and second-degree assault. At the jury trial three witnesses testified that my client was present at the scene. Allegedly five people were attacking one victim. One of the defendants perhaps had a handgun. The handgun if there was one was never taken out of the defendant's waistband.

My client had to alibi witnesses putting them away from the scene of the crime.

At the conclusion of all the evidence we were able to successfully argue that there was insufficient evidence of robbery with a deadly weapon, first-degree assault (there were not sufficient injuries to the victim), and use of a handgun in the commission of a felony. The judge granted our motion for acquittal.

Thereafter the jury received the case on the remaining charges. My client was acquitted of everything except second-degree assault.

I did a lot of work on that case and the results were consistent with the work put in. I am not done working on the case. I still need to prepare for sentencing.


Tuesday, September 6, 2011

Provisional drivers license and convictions



In Maryland new drivers receive provisional drivers licenses. Provisional drivers licenses are delicate and do not withstand traffic tickets very well. If you have a provisional license and receive a conviction or even a probation before judgment (usually not considered a conviction) the motor vehicle administration will take a dim view and start taking actions against your license. A second conviction can lead up to 30 days of suspension and a third and subsequent conviction can give you 180 days of walking. On top of that, each conviction postpones your ability to get your regular license by 18 months. Obviously for safety reasons you do not want to receive tickets but you do not want to receive tickets because it really affects your license in a negative manner.

My 18-year-old client was on his provisional license when he originally received a speeding ticket and received probation before judgment. After that he received a speeding ticket out of state which was transferred to his Maryland driving record. The motor vehicle administration took action and threatened to suspend his license. I advised my client to drive slower and not receive any future tickets. I further had him research the effect of speeding on accidents. Included in this essay I wanted him to reflect on what he would do to reduce his speeding. He wrote a rather excellent essay which I present below. We presented this essay to the judge at the motor vehicle administration and I believe it tipped the judge in favor of my client. Instead of receiving a suspension of his driving privilege the judge issued a reprimand. My client was allowed to continue driving but I believe he realizes he must slow down.

Speeding

Speeding is the #1 violation in fatal motor vehicle crashes. I am extremely fortunate to not have been a part of an accident while having my license. Motor vehicle crashes are the leading cause of death among the ages five to thirty-four in the U.S. More than 2.3 Million adult drivers and passengers were treated in emergency departments as the result of being injured in motor vehicle crashes in 2009. Many teenagers seem to ignore the potential risks of speeding and unfortunately sometimes, as a result, become another number in these statistics. The dangers of speeding are both obvious and unrecognizable to drivers.

One of the most obvious dangers associated with speeding is the impact that it has on our ability to carefully and safely operate a motor vehicle. It is a fact that when we speed, we are less able to rely on our natural reaction time when an obstacle is perceived. Speeding significantly reduces this reaction time and prevents us from doing what is necessary to avoid a potentially dangerous situation. Though braking and swerving are actions that we naturally take when faced with an obstruction on the road, their effectiveness is severely compromised by traveling at a high rate of speed. This is primarily because a driver who is speeding does not have the time (or space) to determine whether such a course of action will really enable him to avoid the perceived danger or whether it will lead to an even more dangerous situation.
Acknowledging the dangers of speeding is important and helpful in preventing the violation, however, it is knowing the reasons why we speed that will truly stop us from continuing to put us, and others, in danger while on the road. One of the biggest reasons I have found myself pushing the pedal a little harder is when I am running late. I feel an extra urgency to pick up the pace and make up for wasted time. I know, based on feedback from my friends and others, that this factor is certainly common among young drivers, and even older ones as well. To fix this I found a simple solution. When I am running late I make certain I do not speed because of it. Realizing my habit of speeding has created another habit of understanding and compensating for my usual tendencies. Ultimately I have stopped excessive speeding and am more aware of my driving habits.
Another danger of speeding, or perhaps the greatest danger, is the fact that it is often not recognized as a danger. Few drivers, including confident and experienced drivers, would hold that engaging in distracting activities such as using a cell phone, texting, eating, etc. are conducive to safe driving. Even fewer drivers would argue that driving under the influence is prudent. On the other hand, drivers who occasionally or consistently drive above the speed limit are ready and willing to provide a list of reasons for why speeding does not qualify as an unsafe and potentially life-threatening hazard. Those who do recognize the dangers of speeding will often rationalize or justify speeding in a number of different ways. I would say, as would many others, that because everyone else speeds, it is easily permissible. However, just because everyone is doing it does not mean you should too. I have driven with the thought of “going with the flow of traffic” but have always wanted to be the leader in the “flow”. With this realization I have mentally changed my connotation of the phrase and permanently decided to be content and willing to stay in the correct “flow”.
Realizing the reasons one speeds is a simple solution to the inconvenient habit. If you truly follow through with self-analyzing natural tendencies and motives, it is easy to be successful and stop yourself from repeating the same mistake too many times.

I think this is an excellent essay. I will not give proper attribution to my client because he probably prefers to remain anonymous. I think I learned from it also.


Thursday, September 1, 2011

Sealing Criminal Records in the Superior Court

Several years ago the District of Columbia enacted "the criminal records sealing act" (DC code section 16-801) that expands the number of people eligible to seal their arrest and related records. Sealing a criminal record is not automatic. You must file a motion to seal records of the courts and a judicial officer will decide whether to grant your request to seal your criminal record.

If your case was no papered by the Office of United States Attorney for the District Of Columbia that means they have decided not to proceed with a criminal prosecution against you. If a case is "no papered" that does not preclude them from prosecuting the case later.

Even though your case has been no papered and you do not have a conviction you do have an arrest record. An arrest record is a record and a law enforcement database contains your name, the date of your arrest, the charges, and personal information such as your date of birth.

It is possible to seal your arrest record to prevent others from gaining access that part of your criminal record. If you have convictions or other arrests that you have not sealed, they will still appear on your criminal background.

If you are interested in sealing your Superior Court criminal record, please bring me a copy of your police and court records. You can obtain your criminal records in Washington DC from the DC Superior Court criminal information and finance office located at 500 Indiana Ave. NW., room 4001, Washington DC 20001. The telephone number is 202-879-1373 and their facsimile is 202-879-1371. There you can pick up criminal records, a bond refund, subpoenas, dispositions on cases. There is no charge to pick up your criminal record.

Next a written motion needs to be filed in the Superior Court within 120 days from the date the charges were dismissed. I can help you with this or you can pick up a sample motion and instructions on how to file a motion by visiting the Public Defender Service located at 633 Indiana Ave. NW. room 248A, Washington DC. You can call 202-628-1200.

Wednesday, August 31, 2011

Amount in Controversy Must Exceed $15,000 in District Court for Jury Demand

Maryland recently increased the amount in controversy from $10,000 to $15,000 in the District Court. Specifically, if the plaintiff demands up to $15,000 as damages in their car accident case or personal injury case or bicycle accident case or motorcycle accident case the defendant cannot demand a jury trial. Only if the amount in controversy exceeds $15,000 can the defendant request a jury trial. This is a huge benefit to people who are injured but whose cases are not particularly large. Insurance companies usually like to get their cases in front of juries. Juries are historically defense oriented. Juries often side with defendants and even if they side with the plaintiff give low awards. By increasing the jurisdictional amount, a plaintiff can have a fairly quick trial in the District Court, save significant amounts of money for medical experts and avoid the hazard of a jury trial.

Friday, August 26, 2011

Protective Order Hearings-Spend a Little Now Save A Lot Later

My client represented himself in a protective order hearing. The charges were very serious. His wife claimed in her petition for the protective order that my client sexually abused her teenage son. At the protective order the mother testified as to what the son had told her. The son never got on the stand to testify as to what had happened. The judge listened to the mother's hearsay testimony and used it as evidence to find that my client did indeed sexually abuse the teenage boy. Had any minimally competent attorney been there he or she would've objected to this hearsay testimony and it would have been excluded. But this evidence came into the record and the judge believed it and was appropriately disgusted at my client's behavior.

He was kicked out of the marital home and ordered to stay away and ordered to make some payments to the household.

Over one month later his wife asked the court to hold my client in contempt for violating the protective order and also requested emergency family maintenance for the bills in the house. At this point he hired me.

I interviewed my client and his witnesses. I tried to speak to the teenage boy but my efforts were blocked. The wife claimed that my client broke into the marital home and took a shower and stole various items. She also claimed that he came up to the front door and rang the doorbell and ran away.

At the hearing the wife testified and I was able to discredit her testimony completely about breaking into the house and taking a shower. There was no evidence that my client came into the home and the judge agreed with that. As to the ringing of the doorbell she testified as did her daughter that they saw my client come up to the house ring the doorbell and then drive away in the car. I was able to somewhat successfully discredit his wife but I was not able to really touch the daughter. She had no obvious motive to lie about this. The judge did find that my client violated the protective order but he was not locked up, he was warned not to do that again.

The wife additionally requested emergency family maintenance which included the water bill, the electric bill, the gas bill and the cable bill. Prior to the hearing I went through my client's finances and he was upside down. He earned less than he spent every month and he was living a very frugal lifestyle. At the hearing the wife testified and submitted the various bills that she had including a $400 cable bill. The law in Maryland requires emergency family maintenance for necessary items. The judge was rather shocked at the $400 cable bill. On cross-examination it became clear to the court that the wife had not worked in years, that in her petition for divorce she stated under oath that "I am self-supporting" and do not need money support. My client presented his pay stubs and his lease and his financial statement clearly showing that he was "upside down" in terms of income. The judge found for my client and did not order any family maintenance.

Had my client hired an attorney prior to the initial hearing it likely never would've even gotten to the point of a protective order. There is some truth to the saying spend a little now save a lot later.

Wednesday, August 24, 2011

Five Court Appearances for a Violation of Probation



After shooting his cousin in the neck and a stranger in the back in Gaithersburg, Maryland I was able to generate enough evidence to reduce attempted murder charges down to the misdemeanors reckless endangerment. At the time of the guilty plea my client was given no jail time but was given 18 months of probation in front of a very tough judge. Any violation of his probation conditions would lead to the two years of backup time. This the judge promised.

My client generally did well on probation. He had a job, he was obtaining his GED, he was in counseling and he was very active in his baby's life. Unfortunately, my client felt that he needed to use marijuana. He was missing many of his urine tests but the probation officer let that slide. Finally, the police were conducting a raid at a home for a different person and my client happened to be there and he happened to have six small bags of marijuana in his pockets. He was charged with possession with intent to distribute marijuana and this would be a violation of his probation.

I was able to beat the marijuana charges using a constitutional argument.

The original sentencing judge did not care. He issued a warrant for my client's arrest. My client turned himself in. I appeared with my client at the initial bond hearing. At the bond hearing the judge was already trying the violation of probation case. He was already finding my client in violation of his probation. I argued this was obviously not proper and we were here merely to set his bond. The judge revoked his bond. I asked for a probation hearing to be set in the near future.

Despite the fact that he was acquitted on the possession of marijuana the judge insisted on going forward with the violation of probation. Frankly, that is the state of the law in Maryland. The burden of proof in a criminal case is beyond a reasonable doubt. The burden of proof in a violation of probation case is by a preponderance of the evidence and the quality of the evidence is much less substantial. Nonetheless, I was able to research case law and found that in Maryland normally hearsay evidence is not permitted at a violation of probation hearing. At the first hearing for violation of probation the prosecution did not have its officers to prove the case. The prosecutor, the probation agent were both pushing to have probation continued and if my client did well on probation to withdraw the hearing. This judge would have none of that. He ordered the prosecutor to get a transcript of the marijuana trial and use that as evidence at the next violation of probation hearing.

At the next violation of probation hearing the prosecutor had the transcript but did not have the chemist for the drugs. I argued that the transcript would violate my clients constitutional right to confront witnesses and cited the Maryland cases which supported this position. The judge accepted that and the prosecutor was able to get some of the officers to come to court that day. We had a trial but at the end of the trial the judge postponed the case because the chemist was unavailable.

On the next trial date the chemist was late. I put on five witnesses to establish everything my client had been doing well while on probation. One witness was particularly effective. He works at the Upper County Youth Center. He testified that my client was at the youth center three to four times a week for three to four hours a day studying for his GED. He was also receiving counseling from this witness. The judge was paying close attention.

Finally the chemist showed up and was able to prove that the marijuana in the bags was indeed marijuana. The judge was convinced that my client was guilty of possession of marijuana and violating probation.

The judge was ready to give my client the full backup time. I was able to successfully argue that it would be unfair. My client had spent most of his time on probation doing the right thing-working, getting counseling, getting a GED, trying to get his driver's license. The judge finally relented and instead of giving the full backup time gave 18 months of local time with a consideration for the work release Center in Montgomery County which would allow my client to spend his days working rather than being locked up. This was very unusual for this judge.

Although I did not prevail for my client I appeared five times in court on the violation of probation (there was an initial appearance before another judge regarding a bond hearing), I had law to support my client's position and I had fact witnesses to help in mitigation of sentencing. I fought the state's tooth and nail and at least was able to achieve two things. My client did not get the full backup time. My client is eligible for work release.

Friday, July 29, 2011

I Have Moved My Office

My office is now at 932 Hungerford Drive, Suite 4B, Rockville, MD 20850. It is 1 mile north of my original office Off of 355. Behind me is Montgomery College and just south of me is the Montgomery County school board. I have the second floor of a townhouse. I renovated the office. I think you might be surprised at how nice it looks (at least compared to my old office). Come by and visit. Parking is of course free. Legal advice costs a little bit more.

Wednesday, July 20, 2011

Washington Area Bicyclist Association Holds Crashing Seminar

The Washington Area Bicyclist Association had a seminar, "What to Do after a Crash"; they invited three attorneys, Peter Baskin and Bruce Deming, both of Virginia, and myself. The executive director of WABA, Shane Farthing, moderated. It was an informal roundtable presentation. The discussion included nuts and bolts real world advice as to what to do before and after a crash. It also included larger policy making plans such as reducing crashing through improving the infrastructure, street-level police education as to dealing with cyclists involved in accidents, increasing data flow through 911 involvement for better statistical analysis.

I prepared a summary of advice for post crash which I include below. Please call me at 301-294-3434 or Tom@WitkopJustice.com if you have questions.

What to do in a crash as it applies to bicyclists in Maryland

You've just been struck by a car. It is a sudden, frightening and disorienting experience. Assuming you are not dead, unconscious or heavily disabled, there are steps that you can take to protect yourself those immediately and down the road should there ever need to be a criminal prosecution against the driver that hit you or a civil lawsuit.

Gen./common sense

Before the Accident
1. Wear a Helmet
2. Have Identification
3. Have a Will and Advanced Directives
4. Obey the Traffic Laws
5. Use Lights
6. Pretend That You Are the Invisible Man.

Immediately after the Accident
1. Remain at the scene
2. Be of assistance to others and yourself
3. Provide contact information to others involved in the accident
4. Get witness information
5. Call 911 for medical assistance and/or police assistance
6. Try to obtain and preserve evidence-identify the driver, identify the vehicle, get the tag number.
7. Try to get a statement from the defendant driver.

More specific to the above rules:

1. Maryland law requires a driver involved in an accident involving property damage or personal injury to remain at the scene and give identifying information. Such this applies whether or not you are at fault. If you are significantly injured get prompt medical help. Witnesses tend to be sympathetic if you are on the ground bleeding. People tend to be helpful but do not want to be involved down the road. Try to get their business card so you can contact them later. Find out if they can identify the vehicle that struck you.

2. Obviously if you are hurt remain down. In motorcycle racing after you crash they recommend that you wait a few seconds to get up because you might still be sliding. Bicycling slower but you do not want to compound your injury by popping up. Obviously if you are on a busy street do what you need to do to avoid being hit a second time. Do what you can to help yourself. In terms of helping yourself, do not curse at the other driver. That sort of thing as a way of affecting what happens at the scene and what happens in court. Recently I had a trial and my client admitted that he said to the other driver "look what you did to my flocking car". The other driver amplified on that and claimed that my client said "look what you did to my flocking car you stupid bitch".

3. Provide your contact information. Address, telephone number. Given get insurance information. Try to see the other person's insurance card. Probably at least 10% of drivers are uninsured.

4. Get witness information. This is critical. I think that people are generally good natured and will help somebody when they're down. They are often less willing down the road to health and litigation. Get their names, address, phone number, e-mail, find out what they have to say. It is critical because there is a general bias against bicyclists. The Metropolitan Police Department and Montgomery County Police Department have a prejudice against us. Insurance companies absolutely have a prejudice against us. If it is the word of the bicyclists against the word of the motorist, the bicyclists usually loses. An independent witness is key for establishing your case.

5. Call 911. That is what they are there for. Often it helps preserve evidence at the scene. It preserves the status quo. When they come do your best to present your side of the story in a pleasant manner. We are wild eyed crazies. Disabuse them of that notion. I understand that you may be bleeding and in shock but try to present your story in a pleasant manner. It can help with your credibility.

6. It hurts your case if you cannot identify the driver. Normally we go after the car and the license plate. Those are hard to see. So was the driver of course. Nonetheless, knowing that the driver is Caucasian, 200 pounds, approximately 50 years old with dark hair, male, clean-shaven is a helpful description. I believe that it was a person that hit me was not so helpful.

7. Anything that the driver says to you is evidence. Do not argue with the driver. Don't tell the other driver that she is a liar. Just get her statement. It is best if you have a witness listening to the statement. In Maryland it is illegal to tape record somebody else's statement without their permission. If you can get their permission and can tape them, go ahead and do it. Likewise, anything that you say is evidence that can be used against you.

Not Long after the Accident

1. If you receive a traffic citation, signed for it. That is not an admission of guilt. I have never seen an officer avoid a ticket after he has written it. After you receive the citation, affirmatively request a trial date. Do not argue with the officer about it. Again anything you say can be used against you.

2. Receive prompt medical attention if you need it. Do not try to make something out of nothing. But if you have an injury take steps to get treatment quickly. It is important for you medically. Doctors have the ability to diagnose and treat and make you feel better and avoid further problems. From a legal standpoint it develops a record that you had a real injury.

From Here on out

1. In Maryland there are several insurance companies that may relate to your accident. If you have a vehicle you have vehicle insurance that covers you including personal injury protection and uninsured motorist coverage. You may have renters or homeowners insurance. You may have health insurance. The other driver has vehicle insurance which will likely have personal injury protection coverage as well as liability coverage.

2. Do not give a recorded statement to the other insurance company. This can only go badly for you.

3. Keep your receipts and your medical records. Keep your lost wages. Take photographs of your injuries and property damage.

Monday, July 18, 2011

Case Dismissed When State Does Not Follow Proper Procedures

Before you even get to substance-whether somebody is guilty or not-you need to make certain that proper procedures were followed. In this case, the prosecution was attempting to get two bites at the Apple. That is simply not fair. Let me explainin my case. The police found my defendant with alleged marijuana in his pocket and a stolen GPS in his hand on November 24, 2010. He was charged in one district court case with theft under $1000. That case resolved on May 31 when my client, representing himself (he had not hired me yet) pled guilty to theft under $1000 and was given a jail sentence.

In the second District Court case he was charged with possession of marijuana and possession of paraphernalia. That case was set for trial today. Strangely, the laboratory had not done an analysis on the drugs. I waited around all morning and early afternoon for the analysis. While that was happening the public defender let me do some research-this was a panel case-and I found Cook versus state, 281 Maryland 665, ( 1978) which states that "it is beyond question that the closely related doctrines of res judicata and collateral estoppel applied to criminal as well as civil cases." It went on to say that "under the doctrine of res judicata, sometimes known as direct estoppel, a final and valid judgment rendered in one proceeding between two parties operates as a bar in a second proceeding between them on all matters that have been or could have been decided in the original litigation, where the second proceeding involves the same subject matter as the first cause of action."

The state started arguing a double jeopardy analysis but that was not the issue in this case. The issue in this case was res judicata. In this case a final and valid judgment was rendered in one proceeding between the state of Maryland and my client-he was sentenced to jail on May 31, 2011 and all appeal time had run; in the earlier proceeding they could and should have brought the possession of marijuana charge but they did not, consequently the state could not take another bite at the apple. The judge agreed with my analysis and the case was dismissed.

Monday, July 11, 2011

Client acquitted of reckless driving, telephone testimony allowed by the court



An alleged victim claimed that my client pulled parallel to her car from her right side and get moving to the left pushing her out of her lane and into oncoming traffic. Eventually there was an accident and both cars stopped. The police were summoned and investigated the matter but did not issue any traffic citations. The alleged victim took the unusual step of going to the Commissioner and filing a statement of charges claiming that my client drove recklessly and made an unsafe lane change.

My client represented himself in the District Court. Although he had witnesses in the car those witnesses were not available for his trial. At the District Court level the judge found him guilty of both reckless driving and unsafe lane change.

My client came to me and I recommended that he appeal the case to the circuit court. An appeal of a traffic case or criminal case from the District Court to the circuit court is de novo. That means that the defendant gets a brand-new trial. What happened down below should not influence the judge or jury above. I interviewed his witnesses and they gave favorable testimony. The problem is that both of his witnesses were in Oregon and it was too expensive to bring them to Maryland for trial. My law firm filed a motion requesting that these witnesses be allowed to give testimony by telephone and that request was granted.

The case was called for trial and when it was time to present the defendant's case, I called the witnesses from Oregon. They stated that my client had signaled his turn, made the lane change safely and several seconds thereafter the alleged victim began honking her horn and speeding up and slowing down in an erratic manner behind my client. There was testimony from both the alleged victim and the defense witnesses that the defendant was driving between 30 and 40 mph. Eventually there was a collision. There was no evidence of alcohol or speeding or other aggressive driving.

At the end of the case, the judge found that this driving was at worst negligent driving but certainly not reckless driving. My client was acquitted of reckless driving. That saves him six points on his Maryland driving record.

Cheated Nurse Wins Punitive Damages in Fraud Trial



My client is a hard-working registered nurse who wanted to expand his business into a group home and perhaps a home health agency. A fellow countrymen was recommended to him. This countrymen told him that he had a PhD in psychology from Harvard and worked as a chief clinical psychologist for the District of Columbia government. He assured my client that he could get him through the paperwork and licensing applications procedure. My client paid this man $25,000 and in return received a binder which purported to contain the information necessary to obtain a license.

My client went to his application hearing and was advised by the hearing examiner that the information in the binder was irrelevant, that my client needed to demonstrate a compelling and unique need in order to obtain the license and this type of license has not been issued for the past four years. Additionally, many questions needed to be answered which the binder did not address.

My client went back to his consultant who promised to work something out but merely managed to put off my client and avoid my client and not return any of the money. My client found other people likewise duped by this consultant.

My firm sued the consultant for breach of contract, unjust enrichment and fraud. Prior to trial we were able to obtain judgment in three of the counts in the amount of $25,000. We had requested that the defendant admit to facts that we posed. This is a discovery device. It is called request for admissions of facts and genuineness of documents. We used it to establish approximately 80 facts which conclusively established that my client paid the money, that the defendant did not provide the services, that the defendant made representations that were false, etc. My firm moved for summary judgment based on these undisputed facts and received a judgment of $25,000.

The fraud count remained. We appeared for trial as did the defendant and his attorney. The defendant wanted to introduce documents into evidence which were never revealed to the plaintiff. Some months prior to the trial we had requested those documents from the defendants. They were never produced. Months prior to trial we asked the court for assistance and received an order compelling the defendant to turnover the documents. The defendant never did so. The judge was not inclined to allow the defendant to use those documents at trial.

The defendant next tried to set aside the request for admissions of fact which had been so damaging. I argued that the defendant had many opportunities to address these admissions of fact and had failed to do so. Setting them aside on the day of trial would cause great prejudice to the plaintiff's case and the judge agreed.

At trial we put on several witnesses to prove the defendants deceit and dishonesty. The defendant took the stand and did not fare very well under cross examination. I called the defendant in our case to establish his net worth. Despite stating that he owned the company and did the books for the company and collected the money for the company he had no idea what the gross receipts were for calendar years 2010 and 2009 and 2008. He could not even tell the judge within $100,000 what the company's income was.

When the judge rendered his verdict he found the defendant not to be credible, found that not only did we prove our case through the request for admission of fact but we also prove by clear and convincing evidence that the defendant committed fraud through the testimony of the witnesses on the stand. The judge awarded $25,000 in compensatory damages and $25,000 in punitive damages.

I hope that the public record of the trial will alert other potential victims of the fraudulent nature of the defendant's business.

Tuesday, June 28, 2011

Bicyclist Cut off by DC Motorist Settles Case



My client is an avid bicyclist. He is used to riding in traffic. On a nice bright Saturday he was pedaling along in Washington DC when a subcompact car made a left turn darting through traffic in front of him. My client tried to stop but could not and struck the side of the car. He fell off damaging his shoulder.

The defendant denied liability. The defendant claimed that there was no contact between my client and the vehicle. There was no crash damage to the side of the car. My client merely lost control of his bicycle and fell off. Further, the defendant claimed that the rotator cuff tear, the injury to the shoulder, which is a very painful injury, had nothing to do with the accident. This injury did require extensive surgery.

I was a bicycle mechanic. I asked to examine the bicycle. I learned that the fork was bent backwards. The fork is one of the weaker parts on the bicycle. The wheel assembly generally absorbs the blow and then bends back the fork which may bend back the frame. In this case, the fork was bent back clearly demonstrating that there was an impact between the bicycle and the car.

The insurance company initially offered $6000 to settle the case. I filed suit on behalf of my client. I took the deposition of the defendant and on the record and under oath forced him to admit that he did not look further up than approximately 15 feet up the road before making the turn. In other words, he turned without looking for the bicyclist. My client was sympathetic and credible in his deposition. We were able to settle his case at over 12 times the original offer.

Wednesday, June 8, 2011

Lack of courtesy can lose a case

Lack of courtesy can lose a case

I tried a case last week where the police had a search warrant for a house. They knocked on the door at about 6 AM, waited less than 10 seconds, and then used the SWAT team to bang through the door and enter the home. In the home they found women, children, and my client. My client was searched without consent and six bags of marijuana were found upon him. He later on confessed to possessing marijuana.

Things look pretty bad for my client. He was on probation. The police had a warrant signed by a judge. They found the marijuana on him. He confessed that the marijuana was his. It sounds like a certain conviction.

The fourth amendment to the Constitution of the United States reads as follows, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

I argued to the judge that the search was unreasonable. Yes the police had a warrant. But under the common law of Maryland, the police are generally required to knock and give a reasonable amount of time before they enter a home. There are of course exceptions to this general rule, but this case did not fit into that exception. The court agreed with the argument, found the search to be unreasonable, consequently all evidence including the marijuana and the confession was suppressed and my client was found not guilty.

Had the police been courteous and waited a reasonable amount of time for someone to answer the door, this would not have happened.

Friday, May 27, 2011

Legal Poetry

John W Davis (April 13, 1873 – March 24, 1955) was an American politician, diplomat and lawyer. He served as a United States Representative from West Virginia (1911–1913), then as Solicitor General of the United States and U.S. Ambassador to the UK under President Woodrow Wilson. Over a 60-year legal career, he argued 140 cases before the U.S. Supreme Court.
Davis is best known as the Democratic Party nominee for President of the United States during the 1924 presidential election, losing to Republican incumbent Calvin Coolidge. Obviously he had a long and distinguished career. I like him for a poem that he wrote:

The lawyer's a man of sorrow, and acquainted with grief;
among all the sinners, he's considered the chief.
His friends all admire him when he conquers for them;
when he chances to lose, they're quick to condemn.
They say, "he is bought!" If he loses a case;
they say, "ah! He is crooked!" If he wins in the race.
If he charges big fees, they say he's a grafter;
if he charges small fees, "he's not worth going after."
If he joins the church, "it's for an effect;"
if he doesn't join, "he's as wicked as heck."
But here's one fact we all must admit:
when we get into trouble, our lawyer is IT!

With thanks to Jacob a Stein for making me aware of this poem.

Tuesday, May 10, 2011

Conflicting police testimony leads to an acquittal

My client and his girlfriend ran out of bus money and called a friend to pick them up in the middle of the night. The friend picked them up and was stopped for weaving outside of his lane and almost striking the police officer's vehicle. The officers approached on both sides of the defendant's vehicle. My client was in the passenger seat and with the help of his flashlight the officer immediately noticed flakes of marijuana on his jacket. Everybody was taken out of the car and the car was searched and half an ounce of marijuana was found in a bag in the car as well as cigars allegedly used for smoking marijuana.

At trial I sequestered all the witnesses which means that they could not hear what the other one said on the stand. The officer that came up on the driver side testified that the 11 g of marijuana was found under the driver seat in a plastic bag. The cigar paraphernalia was found in front of the passenger seat where my client was sitting. This was consistent with his police report. Nowhere in his report did it state that there was a smell of marijuana. Nowhere in his report did it state that the backseat passenger claimed ownership of the marijuana. The officer testified that he could smell marijuana from the car and that it smelt of freshly burned, perhaps burned in the last hour or so. The officer also testified that there were tobacco crumbs on the floorboard in front of the passenger.

The officer who came on the passenger side where my client was sitting testified that the other officer found the cigars and that the package was open and that at least two of the cigars had been hollowed out to receive marijuana. He also testified that the 11 g of marijuana was found on the passenger side of the vehicle. Dissemination he admitted that he was not the one who found the marijuana and that he was mistaken and that the marijuana was found under the driver seat. I showed him the evidence of the cigars. The cigar package was completely sealed. It had never been opened and none of the cigars were taken apart.

My client testified that he had called his friend to pick him up and borrowed his friend's jacket. He put the jacket on in the car. He did not notice that there was any marijuana on it. The marijuana was not his and he had no idea that it was in the car.

At the close of the evidence the judge had trouble with the testimony from the police. The officer testified that the cigar package was open and that the cigars had been tampered with. The evidence clearly showed that the package was sealed and the cigars were intact. The person in the back claimed ownership of the marijuana. It was not clear whether the marijuana was under the driver seat or under the passenger seat. It was not clear about the smell of marijuana. It was not clear whether there was a burnt marijuana cigarette in my client's pocket. The judge had a reasonable doubt in my client was acquitted.

With respect, I do not believe that the police officers were as ready as they could have been. They left many important facts out of the report which I brought to light. In other words, they testified to things that were not contained in the report. These were important matters such as the officer who had my client claimed that there was the remains of the marijuana cigarette in the jacket. That was nowhere in the report. They also tried to testify what my client said. That was nowhere in the report and because they did not turn over this information prior to trial the judge excluded using that information. They had a videotape of what happened that the arrest scene but that was not used by the prosecution. Experienced cross examination brought out the conflicts and problems in the state's case and led to an acquittal.

Thursday, May 5, 2011

Drunk Sleeping Driver Wins at Motor Vehicle Administration

After becoming intoxicated my client talked to the designated driver and told the designated driver that she was going to go into the car and wait for him to drive her home. She entered her legally parked car, started the car to keep warm and was listening to the radio. She fell asleep and the next thing that she noticed was the police officer knocking on her window. She failed field sobriety tests and her breath test was .12 blood-alcohol content. The officer charged her with drunk driving and took her Maryland license.

She hired me and we requested a hearing at the motor vehicle administration to avoid a license suspension. The above facts were revealed at the motor vehicle administration. My client further testified that she had told the officer that she was waiting for her designated driver and she had no intent of driving home. Even though she was in the car, behind the steering wheel, the engine was running, the radio was on, the headlights were on, and she was legally under the influence of alcohol, the motor vehicle administration judge sided with our position, which was supported by the case law, that she was merely using the vehicle as a shelter and therefore she was not driving the vehicle as defined under Maryland law. The judge credited her honesty with the police officer-she had admitted to drinking many specific drinks. Based on that honesty the judge believed my client at the hearing.

The judge took no action, my client was able to keep her license.

Friday, April 22, 2011

Cross Examination Reveals Lies at a Protective Order Hearing

Washington, DC Protective Order Hearing-Judge Keeps an Open Mind

My client was recently served with a notice of a protective order hearing in Washington, DC. The complaint was vague-in it it claimed he made threats of violence, was harassing the victim, was stalking her, caused her to lose her job. There was not a single specific fact alleged. He received a notice the day before the hearing. He told me he had never done anything wrong with this victim and had no idea what it was all about. He did not send her nasty e-mails or leave awful voice messages which could be used against him, he told me. He had no witnesses because he did not know what she was alleging. He gave me some background on the victim and with that we went the next day to the trial.

The case was called and the victim testified that my client had called her on the telephone approximately 17 times in approximately 10 days. She had taken pictures of her cell phone showing his number on the cell phone. I could tell the judge was getting annoyed at my client.

After that she claimed that while she was at church with her cousin and her baby her cousin went outside with the baby. My client was there and pointed a gun at the baby and threatened the cousin. At this point, the judge became alarmed and called on security. Things were not looking good for my client. The victim testified further that she spoke with my client's wife. His wife told the victim that she had better not pursue the felony gun assault charges because my client threatened to kill his wife if the victim pursued the matter. His wife and the victim were sisters.


The victim then called on her mother who testified that she went down to my client' s place of business. My client went outside with the mother and pulled a gun on the mother and pointed it at her and threatened her. The mother testified that a police car drove by and then my client ran away.

One of the greatest writers on evidence, John Henry Wigmore stated, “Cross-examination is the greatest legal engine ever invented for the discovery of truth." On cross examination I used the police report that the victim brought against her. The victim testified that she had identified my client to the police. She had given the police his name, she had spelled his unusual name. The police report was quite detailed. Nowhere on the police report did it include his name. Further, on hard questioning, it appeared ridiculous that she would drop the charges especially when he is making death threats against his own wife. It would've been much more logical for both of them to go to the police at that point and have him arrested immediately. The victim admitted on cross examination that she was convicted of felony possession with intent to distribute drugs. Several months earlier she admitted to being involved in a custody dispute and admitted that the defendant testified at the dispute. She testified that his testimony was not against her. In that dispute she lost legal custody of her child.

On cross examination the mother also lost all credibility. That the mother would not go to the police immediately after being threatened with the gun when the police had just rolled by was preposterous.

I put my client on the stand and he explained that he shared the cell phone with his wife who was the sister of the victim. He explained he never threatened anybody with a gun. At the time that the threat was made he was at work. He testified that at the custody dispute he told the judge that the victim had acted inappropriately as a parent to her children.

At the end of the case the judge found the mother to be completely incredible and gave no weight to what the victim had said. The felony conviction discredited her. Her testimony about the custody battle discredit her. He dismissed the order against my client.

I was pleased that the judge was able to keep an open mind after he had ordered and security. My client, decent man, was able to survive lies and false accusations due to the power of cross examination.

Wednesday, April 13, 2011

Maryland Motor Vehicle Administration Hearings

Recently motor vehicle administration hearings before the Office of Administrative Hearings have advanced technologically. Instead of a paper file, the administrative law judge will present the evidence via computer screen. Besides saving trees, there is an upside because you can magnify the documents. Often the documents are hard to read at best and illegible at worst.

An additional upside is that they now appear to have printouts of their findings. The printouts are much easier to read but more importantly, they give you of the issues that are before the judge. Below is a sample computer printout. Please call me if I can give you advice on any motor vehicle administration hearings that are upcoming. Remember that usually there is a very short amount of time in which to request a hearing once you have notice of a problem. Call me to discuss this.

Licensee 04-12-2011
drivers license number DOT-APS-case number
FINDINGS OF FACT - APS
After considering the evidence and testimony presented in this case, I find by a preponderance of the evidence the following facts:
1) The police officer who stopped or detained the Licensee had reasonable grounds to believe that Licensee was driving or attempting to drive a motor vehicle while under the influence of or impaired by alcohol, drugs, a controlled dangerous substance, or any combination of the aforementioned, or in violation of an alcohol restriction, or did drive, operate, or be in physical control of a commercial motor vehicle while having any alcohol concentration in their blood or breath based on the following:
2/8/11 23:16 pm; drove on the wrong side of the double yellow line; ran a stop sign.
2) There is evidence of the use of alcohol, drugs, controlled dangerous substance or any combination of the aforementioned based on the following:
strong odor; told officer had 4 beers; performed poorly on the standard field sobriety test indicaiting clues of
intoxication on the horizontal gaze nystagmus; walk and turn and one leg stand.
The officer fully advised the Licensee of the administrative sanctions that could be imposed: Yes 0 No d
The officer requested that the Licensee take a test as defined under Md. Code Ann., Transp. § 16-205.1 (a) (1) (iv):Yes E Nod
The Licensee drove or attempted to drive a motor vehicle and took the test as requested, indicating an alcohol concentration of :
Yes E Nod 0.09 grams of alcohol per 210 liters of breath at the time of testing: Yes d NoE grams of alcohol per 100 milliliters of blood at the time of testing:
The Licensee refused to take the test: Yes d NoE
The Licensee was driving a commercial motor vehicle: Yes D NoE
OTHER FACTS [IF NEEDED]
WK: Construction as a Laborer; works at various job sites in VA, DC and MD; Takes two children to school; takes young child to doctor's appointments A/E: never been evaluated for alcohol education or treatment;
D The Licensee failed to appear after due notice to address on record.
CONCLUSIONS OF LAW
E Based on the foregoing, I conclude that the Licensee did violate Md. Code Ann., Transp. § 16-205.1 D Based on the foregoing, I conclude that the Licensee did not violate Md Code Ann., Transp. §
MODIFICATION OF DETERMINATION
I have weighed the adverse effect upon Licensee's need to drive for employment or alcoholic prevention purposes versus the State's need to maintain safety on the public highways.
Licensee has had a license suspended under Md. Code. Ann., Transp. §16-205.1 in the past 5 years: Yes D NoE
Licensee has been convicted under Md. Code. Ann., Transp. §21-902 in the past 5 years: Yes D NoE
Licensee needs a license for employment purposes: Yes E Nod
Licensee needs a license to attend alcohol prevention or treatment program: Yes D NoE
DECISION
Driving privilege is:
Suspended for: 45 DAYS
Revoked
Revocation Extended for:
CDL Disqualified for:
License Refusal Upheld
License Refusal Not Upheld
Cancelled
D Any suspension imposed shall run D concurrent with D consecutive to any existing suspension .
D Any suspension imposed shall be retroactive to:
D Above suspension is not modified
D The above suspension is modified. The licensee shall participate in the MVA's Ignition Interlock Program.
B Above suspension is modified to a restrictive license.
D No action
D Reprimand
D Other:


The Licensee's temporary license was retained by the ALJ at the hearing.
The Licensee's photo driver's license class - (issue date) was retained by the ALJ at the hearing.

Judge from the motor vehicle administration

APPEAL RIGHTS
Pursuant to the Transportation Article of the Annotated Code of Maryland, §10-209: the Administrative Procedure Act, State Government Article, §10-201 et seq., and the B Rules of the Maryland Rules of Procedure, any aggrieved party to a hearing may appeal from a decision or order of the Administration as follows:
WHERE:
If the matter concerns the license of a party to drive and the party is a resident of this State, to the Circuit
Court for the county in which the party resides;
If the party is a non-resident motorist, to the Circuit Court for the county in which the party was convicted of
the violation to which the matter relates; and
If not otherwise provided in this section or elsewhere in the Maryland Law, to the Circuit Court for Anne
Arundel County.
WHEN:
An appeal must be filed within thirty (30) days from the date of the decision or order.
FFD-APS 2
2 O1O-O9-O1
Licensee 04-12-2011
drivers license number DOT-APS-case number
LICENSE RESTRICTION ORDER
Suspension of the license has been modified to a restrictive license for: 45 DAYS
Employment purposes
Alcoholic prevention or treatment program purposes
Educational purposes
Employment and educational purposes
Obtaining health care treatment pursuant to Md. Code Ann., Transp. § 16-205.1 (n).
Alcohol
2O1O-OS-O1

Expungement of Criminal Matters in the State of Maryland

The Maryland Judiciary has recently put out a brochure which I present below with very minor alterations. Expungement is a powerful tool which I highly recommend in general with certain exceptions. Maryland has a method for "deleting" results in a criminal proceeding depending upon the outcome. There is a trade-off when you request an expungement. You should not just do it automatically.

I find of interest, that even if your case is expunged in the state of Maryland, the prosecution may bring charges against you in the case that has been expunged. Mora v. State, 720 A.2d 934, 123 Md.App. 699 (Md. App., 1998).

If you have particular questions you can contact me directly.

table of contents
What Is Expungement? 1
When Can I File For Expungement? 2
Case Information 3
Petitions For Expungement 3
What Do the Dispositions Mean and How Do They Affect Expungements? 4
When Are You Not Entitled To An Expungement? 5
Pardons 6
Cost Of Expungement 6
Juvenile Records 7
How Do I File For Expungement? 7
How Long Does It Take? 7
Certificates of Compliance 8
Expungement Order 9
Must I Disclose Expunged Charges? 9
Amended Petitions 10
CJIS Related Questions 10
Helpful Suggestions 11
Expungement Agency Contact Information 12

This guide is designed to give you pertinent information concerning the removal of criminal records from public access in Maryland and to help you understand the process of filing for expungement.
what is expungement?
Expungement is the removal of records from public inspection. In Maryland, records ma$ be expunged from 1) Motor Vehicle Administration files, 2) police files and 3) court and police files. Each process removes very specific files and must be done through the proper agency. You must apply for expungement of each arrest based on the date of arrest and according to the disposition. No process expunges the records from all agencies.
motor vehicle administration (MVA)
Many motor vehicle records are automatically expunged after 3 years; other records may be manually expunged, depending upon the offense for which you were convicted and the length of time since your last conviction. For additional information, contact the MVA.
police records: when No charges were filed
Effective 10/1/2007, if you were detained by a police agency, but were released without being charged, records will automatically be expunged within 60 days after release.
Prior to 10/1/2007, if you were detained by a police agency, but were released without being charged, records may exist in police files. To get these records expunged, contact the arresting agency and request an Investigative Release Form. Ask the agency«^ for specific information on how its process works. Expungement must be requested within 8 years of incident date.
court/police records may exist:
If you have been arrested and charged with a crime, including a traffic violation for which a term of imprisonment may be imposed.
If you have been charged with a civil offense or infraction as a substitute for a criminal charge.
Court records are not automatically expunged. To remove these records, you may file a petition for expungement with the court if:
You were found not guilty.
· You were found guilty of certain nuisance crimes. The charge was dismissed.
· The charge resulted in probation before judgment (excluding charges of driving while under the influence or driving while impaired).
The State's Attorney did not prosecute (nolle prosequi) your charge.
· The Court indefinitely postponed your case (stet).
Your case was compromised (settled).
You were convicted of only one non-violent criminal act and you were granted a full and unconditional pardon by the Governor.
when can I file for expungement?
The waiting period required for filing a petition for expungement varies, depending on how your case was concluded and whether you file a General Waiver and Release (Form CC-DC/CR 78).
If your petition is based on an acquittal, a nolle prosequi, or a dismissal, you may file a petition three years after the disposition, or within three years if you file a General Waiver and Release of all legal claims and lawsuits arising from the charge.
If your petition is based on a probation before judgment, you may file:
·:· 3 or more years after probation was granted or discharged, whichever is later.(I find this piece of advice confusing but I believe that you can file for the expungement immediately, I would expect that the state's attorney's office would oppose the expungement because not enough time has passed and that would likely generate a hearing before the judge wherein you would need to show good cause why you should be allowed to have your expungement early).
If your petition is based on a guilty verdict for a specified nuisance crime, you may
file:
* 3 or more years after the conviction or satisfactory completion of the sentence, including probation, whichever is later.
If your petition is based on a stet or a compromise, you may not file within 3 years of your cases's disposition.
You may also petition the court for expungement at any time on a showing of good cause.
general waiver and release
This form releases all persons and agencies from any claims regarding the arrest or detention. It must be filed in order to process an expungement, if it is less than 3 years from the time your case was concluded. Check with the clerk in the court where you file to see if the General Waiver form requires a witness.
case information
Who is the complainant?
The person who, under oath, signs a statement establishing reasonable grounds to believe that some named person has committed a crime. In criminal cases, the complainant is usually a police officer or a citizen.
How can I find the name of the complainant if I don't remember?
The Maryland Judicial Case Search website -- http://casesearch.courts.state.md.us/ may be helpful for finding case information. Not all information and/or parties involved may be available online.
What is my tracking number?
The assigned 12-digit number that identifies the defendant and incident throughout criminal proceedings.
What is the disposition?
The verdict given by the Judge at the conclusion of the trial/sentencing.
petitions for expungement
Can I include all my case numbers on the petition?
A Petition for Expungement may include only the case numbers for one unit (see below for definition of "unit"), which may include both criminal and traffic charges. If the unit included both criminal and traffic charges list all the case/citation numbers that apply to that unit.
Can the clerk help me complete the forms?
No. The clerk may provide public information from the computer and/or case file, such as case number(s), date of service, service agency, and disposition of charges.
What do you mean by a "unit"?
According to Criminal Procedure §10-107, a unit consists of two or more charges, other than minor traffic violations, arising from the same incident, transaction, or set of facts.
Do I need an attorney?
Under Maryland law, you may represent yourself, pro se, in this matter.
Does my expungement paperwork have to be notarized?
No.
what Do the dispositions mean and How Do they affect expungements?
dismissed
A ruling by a judge that all or some of the charges in a case are terminated (thrown out), without further evidence or testimony.
not guilty (acquittal)
A judgment by a jury or judge that a defendant is not guilty of a crime as charged. Under Maryland Law, not guilty dispositions are not automatically expunged. You must file a Petition for Expungement of Records (Form CC-DC/CR 72) if you want this removed from public databases.
If a General Waiver is submitted with the petition, you may petition the court to expunge a case that includes either a not guilty or judgment of acquittal immediately after the disposition. If no General Waiver is submitted, the petition can be filed three years after entry of disposition.
probation before judgment (PBJ)
Guilty verdict was stricken and probation was assigned; not a conviction if probation was
successfully completed.
· Under Maryland Law, Criminal Procedure § 10-105(c)(2)(I)(II), a PBJ can only
be expunged after probation is discharged or 3 years after probation was granted,
whichever date is later.
If your probation was discharged in less than three years, you may file a motion for a good cause exception and see if the court will grant it.
stet
A conditional stay of all further proceedings in a case. On motion of the State's Attorney, the court may indefinitely postpone trial of a charge by marking the charge "stet" on the docket.
Under Maryland Law, Criminal Procedure §10-105 the waiting period to remove a
stet case is three years after the date of the judgment
If it has been less than three years, you may file a motion for a good cause exception and see if the court will grant it.
guilty
A verdict convicting the defendant of the crime charged.
· Under Maryland Law, Criminal Procedure §10-105, except for a limited number of
minor common nuisance crimes, guilty convictions are not eligible for expungement.
· According to Criminal Procedure §10-107, if a person is not entitled to expungement
on one charge or conviction in a unit, the person is not entitled to expungement of any
other charge or conviction in the unit.
nolle prosequi (Nol pros)
A formal motion by a State's Attorney, indicating that the charge(s) will not be prosecuted.
· Under Maryland Law, nolle prosequi dispositions are not automatically expunged.
You must file a Petition for Expungement of Records if you want this removed from
public databases.
· If the case was nolle prosequi and you were not served, you must still file for
expungement. However, if a judge advises in court that such a case be expunged, a
petition is not needed and there is no filing fee.
NOLO CON TENURE (nolo)
A plea in a criminal action having the same legal effect as a plea of guilty and on which the defendant may be sentenced.
when are You not entitled To an expungement?
You are not entitled to an expungement:
In any case where a guilty finding was entered (except for certain nuisance crimes under Criminal Procedure §10-105(a)(9)).
If you received a probation before judgment, a nolle prosequi, a stet, a pardon or conviction of a specified public nuisance crime, AND since then you have been convicted of another crime other than a minor traffic violation or are a defendant in a pending criminal proceeding.
In civil cases, unless you were charged with a civil offense as a substitute for a criminal charge.
In domestic violence, cases are a civil proceeding, which are not covered under the expungement statute.
27
· Of a disposition of probation before judgment or guilty for a violation of driving
under the influence (DUI) or driving while impaired (DWI) (Transportation Article
§21-902, Criminal Law Article §2-503, 2-504, 2-505, or 2-506, or former Article
§388Aor§388B).
· If one charge in the unit is not eligible for expungement, the other charges in the unit
are not eligible for expungement no matter what type of charges they are (criminal,
traffic, boating violation, light-rail violation, etc.).
· If you were charged with minor traffic offenses only. The Court does not have
authority to expunge minor traffic offenses. Only the MVA can expunge minor traffic
offenses.
pardons
A pardon is an act of clemency in which the Governor, by order, absolves the grantee from the guilt of the grantee's criminal acts and exempts the grantee from any penalties imposed by law for those criminal acts. If you want to clear your record of a guilty charge you must call the Parole Commissioner's Office to request a packet for a pardon. (Exception: A guilty verdict for certain public nuisance crimes under Criminal Procedure §10-105(a)(9) may be expungeable.) For more information regarding pardons contact the Parole Commission directly:
6776 Reisterstown Road
Baltimore, MD 21215
1-877-241-5428 (toll free) or 410-585-3200
http://www.dpscs.state.md.us/aboutdpscs/FAQmpc.shtmWpardon
cost of expungement
Ask the clerk about the fee or refer to the court's online fee/cost schedule. The filing fee is nonrefundable, even if denied. The fee is for each case (not for each charge related within a unit of the case.) If you cannot afford the fee, you may request that the court waive the filing fee. There is no charge to expunge a verdict of Not Guilty (Acquittal).
juvenile records
Juvenile records are sealed and should not appear in criminal records. However, you may file for expungement of the record if the original charge was transferred to the juvenile court. Contact the Juvenile Division of the circuit court for more information.
How Do I file for expungement?
1. Obtain a petition for Expungement of Police and Court Records (Form CC-DC/CR 72)
and the General Wavier and Release (Form CC-DC/CR 78), if necessary, at any District or
circuit court. (Forms available online at: www.mdcourts.gov)
2. You will need to know the case number, date that you were arrested, summoned, or
cited; the law enforcement agency that took the action; the offense with which you were
charged; and the date your case was disposed.
3. Complete the forms and file with the clerk. Include an extra copy for the State's
Attorney and each law enforcement agency named in the petition. You must file in the
court in which your case was concluded.
4. Pay the nonrefundable filing fees.
How long does it take?
The process should take approximately 90 days from the time you file your petition, unless there is an objection or appeal. If the State's Attorney and/or the law enforcement agencies object to your petition, the court shall hold a hearing and will notify you to attend.
If the State's Attorney and the law enforcement agencies do not object within 30 days of receiving the petition, the court shall pass an order requiring the expungement of all police and court records about the charges. The court will notify you that your petition has been granted or denied.
The Expungement process cannot be expedited or "fast tracked" through the system. All cases are handled in exactly the same manner. There are no exceptions.
After the court orders are sent to each required agency, each agency has 60 days from receipt to comply with the court order. You will receive a Certificate of Compliance in the mail to notify you that your expungement has been completed.
Until you receive your Certificate of Compliance from each agency listed on your petition, do not assume that your records have been expunged.
Can an expungement be denied?
Yes.
Who do I call if I have a question about an expungement?
Call the clerk's office where you filed the expungement. The clerks can provide information about the court process, but cannot give legal advice. The clerk may not be able to provide specific information as to where in the process your expungement stands.
What can I do after the petition is denied by the Judge at the hearing?
You may file an appeal within 30 days of the denial.
How will I be notified about the answer to the petition?
The Petitioner or Attorney, whoever filed the petition, may receive an answer from the State's Attorney in the mail 30 days from the receipt of the petition. In some jurisdictions, the State's Attorney may not answer at all. According to the Maryland Rules, a failure to file an answer constitutes agreement.
Why does the expungement process take so long?
Maryland expungement laws (Criminal Procedure §10-101 to 10-109) set specific time requirements for the various phases of an expungement. The entire process will take approximately 90 days from the date of filing.
certificates of compliance
What can I do if I do not receive a copy of all the certificates of compliance?
First, contact the agency or agencies directly that you have not received certificates from. Then, contact the Court to see if they have received certificates from those agencies. As a last resort, file a lawsuit against the state agency if they disseminate the information. The clerk can provide information about the court process, however you may want to seek the assistance of a lawyer before filing a lawsuit.
I just received a copy of the court order and certificate of compliance from the courts. Does this mean I am clear to apply for a job or adopt?
No, this is only your certification that the court has complied with the order and notified the parties on the form. Until you have received a compliance letter from each of the listed parties on the court order, do not assume that your record has been cleared of the petitioned charge.

EXPUNGEMENT ORDER
How long should I keep my copy of the Expungement Order?
Keep these documents FOREVER.
What does it mean when I receive an Order for Expungement of Police and Court Records and Certificate of Compliance?
It means that a particular agency has complied with the expungement order.
Will the public still be able to view records on case search after the record is expunged?
No.
If my record is expunged, can I come in again and get a copy for immigration if I lost all the paperwork?
You can petition the Court to have the case reopened. However, three years after the expungement has been granted, the file is shredded.
After the case is expunged, could immigration obtain copies of the expungement documentation and case folder?
Immigration cannot obtain this information from any agency that has filed a Certificate of Compliance once the case has been expunged.
Why does my record still show on other databases after it has been expunged from the Court's system?
Each entity (courts, arresting agency, parole and probation, Criminal Justice Information Services (CJIS), Federal Bureau of Investigation (FBI), etc.) has its own stand alone database for which it is responsible. Since these databases are not connected, each entity will expunge their own database. Once CJIS expunges the record in Maryland's Central Repository, which is done within 60 days of the court order, the FBI will be notified to expunge their database.
must 1 disclose expunged charges?
According to Maryland law, Criminal Procedure §10-109:
Disclosure of expunged information about civil citations and criminal charges in an application,
interview, or other means may not be required of a person who applies for employment, etc.
A person need not refer to or give information concerning an expunged charge when answering a question concerning a criminal charge or civil citation that did not result in a conviction or that the Governor pardoned.
Refusal by a person to disclose information about criminal charges or civil citations that have been expunged may not be the sole reason for refusal to hire the person.

amended petitions
What are the procedures for filing an expungement in circuit court (or other agencies) after District Court has received/processed the paperwork?
Per Rule 4-506, the application, petition, or answer may be amended by the Petitioner in the manner prescribed by Rule 2-341.
Unless the court orders otherwise, a party filing an amended pleading must file a comparison copy of the amended pleading. Language that is stricken should by lined through or enclosed in brackets (ex: old language or [old language]). The new language should be underlined or in boldfaced type (ex: new language or new language). The clerk will resubmit the amended petition to the agency.
CJIS related questions
How long will it take before it will not show on a record check?
If the employer does the record check through the Criminal Justice Information Systems - Central Repository (CJIS-CR) system, it will not show on the record after CJIS has complied with the order and finished processing the expungement.
Once my case is expunged, will it still be on my background check?
No, once CJIS has complied with the order and finished processing the expungement it will not show on your record.
If I have received my Certificates of Compliance, why does the FBI still show that I have a record?
The Courts do not process expungements for the FBI's system. Once CJIS expunges the record in Maryland's Central Repository, which is done within 60 days of the court order, the FBI will be notified to expunge their database.
Why is my case still showing up in CJIS after four months?
CJIS handles expungements for the entire State of Maryland. The volume of expungement requests that CJIS processes is much greater than that of individual jurisdictions, and expungements are processed in the order received.
I recently had a background check done through my job and the charge that I had expunged still appears. What do I do?
If the record check was not processed through the State of Maryland, you must go back to your company and have them do a fingerprint supported check through CJIS to receive an accurate record check.

helpful suggestions
The following suggestions will help you succeed with an expungement:
· Make sure that you have completed the expungement petition completely and
accurately with your full name, including any alias that you used at the time of arrest,
date of birth, and current address.
· Have a background check done through CJIS-CR if you are not sure of dates of arrest
and occurrences. This will also allow you to see what is on your criminal history.
· After the expungement process is completed and all Certificates of Compliance
have been received, have a background check done. This is to double check that the
expungement was done as well as check for any other occurrences that may appear.
· Ensure that you have filed at the appropriate time and not too soon. Filing too soon will
cause the expungement to be denied. The fee is nonrefundable.
· Make sure you are filing in the appropriate court jurisdiction (District or circuit)
because filing in the wrong jurisdiction can delay your case from being expunged from
the State of Maryland in a timely manner. If your case was appealed to a higher court,
that is where you need to file.
· Make sure you keep copies of all the expungement documents and the expungement
order since they may be needed for future reference. Once the case has been expunged,
all documents pertaining to the case will be destroyed.11
EXPUNGEMENT AGENCY CONTACT INFORMATION
Circuit Court: located in every county. For more information see:
http: //mdcourts. gov/circuit/index .html
District Court: For more information see:
http://mdcourts.gov/district/index.html
Motor Vehicle Administration (MVA): For more information call
1-800-950-lMVAorsee: http ://www.mva. state.md.us
Criminal Justice Information System (CJIS) of the Department of Public Safety & Correctional Services collects and maintains criminal records. For information, call
Toll free 1-888-795-0011 or see: http://www.dpscs.state.md.us/aboutdpscs
Individuals can check their own criminal history by visiting their local police barracks to request an individual review. You will be fingerprinted and your fingerprint identification will be sent to the:
CJIS Central Repository (CJIS-CR) P.O. Box 32708
Pikesville, MD 21282-2708
Once received, CJIS will then process the results and mail them back to you.

If you have further questions about the expungement law, please see Criminal Procedure Article §10-101 to 10-109 of the Annotated Code of Maryland. You may wish to consult an attorney to determine how the law applies to your situation.
For more information, visit the Judiciary website at: http://www.mdcourts.gov

Wednesday, March 16, 2011

Security Cameras in Washington DC Save the Day

A client came in recently and reminded me of a powerful tool in personal injury cases in Washington DC. He was involved in a vehicle accident in Washington DC. The claim was that he had run a red light and struck a car turning left past the intersection. He was confident that he had the green light but it was only his testimony. An independent witness who knew neither the driver nor the bicyclist also testified that he ran the red light. The car driver naturally stated that he had run the red light. The police officer gave my client a ticket for running a red light.

Washington DC has many security cameras throughout the city. This particular intersection had such a security camera. The information is not kept indefinitely, in fact the recorded information is only for a few days and then recycled. My client did a freedom of information act through the early Metropolitan Police Department and was able to get the footage of the accident.

The camera was mounted at the intersection. The camera pans around and shows various parts of the intersection. The camera clearly showed the car making a left turn directly in front of my client and my client having less than a second to react. He collides violently with the car. The camera continues to pan showing the direction where my client came from. It shows many many cars continuing through the intersection clearly indicating that he had a green light. The camera continues to pan and shows the traffic light in the intersection showing that the light was green. It also shows how many seconds were left because it picks up the walk don't walk signal.

This evidence is overwhelming and short-lived. Contacting the Metropolitan Police Department and requesting freedom of information is quick and cheap. You should just Google Metropolitan Police Department freedom of information act and it will take you directly to their website and they are helpful.

Thursday, March 3, 2011

Driver Acquitted of Striking a Bicyclist

Recently I represented a very nice mature lady. She was leaving her doctor's office where she had had work done on her knee. While leaving the parking lot she came to a sidewalk which crossed over the driveway leaving the parking lot. A bicyclist came across the sidewalk and there was a collision. The bicyclist got up and either sat close by on the curb or picked up his bicycle and moved a distance away. My client remained at the scene for at least 3 min. in her car. She was in pain and could not get out. The bicyclist did not come over to her even though he was ambulatory. Thereafter she left and her intent was to go to a local grocery store and call the accident in. The telephone was not available at the grocery store and she went home. A witness took down her tag and the police found her at her house. She told her story to the police and they were willing to let the case go with her going to a driver improvement program and no charges being filed.

Apparently the bicyclist had a bit of a history. When I ran his name on the criminal database search available in Maryland, he came back with two pages of criminal charges. He was apparently incensed that this lady did not suffer criminal charges. He contacted the officer many times requesting that he issue a citation and the officer denied that request. He pulled rank and went to the officer's Sgt. who also denied the request. He went to the lieutenant who capitulated and the officer wrote citations against my client.

My client was charged with the following:

1. Failure to yield to a pedestrian in a crosswalk
2. Failure to stop after an accident

These are somewhat serious charges. They carry jail time and of course points on your driving license.

The case was called for trial and everyone showed up. I told the prosecutor not to drop the charges because I was concerned that the bicyclist would go after this prosecutor going all the way up to John McCarthy, the state's attorney for Montgomery County. At trial the state proved that the victim was riding a bicycle in the crosswalk when he was struck. They also proved that my client remained at least 3 min. and probably more than 5 min. stopped at the scene after the accident.

At the close of the state's case I argued to the judge that a bicyclist is not a pedestrian and that is clearly defined in the Maryland code. A pedestrian is somebody who is "afoot" (is a bicyclist somebody who is "abike"?) The judge threw out that charge immediately. I further argued that the state proved in their case that my client did stop after the accident. Under the statute it requires the driver to stop. It does not say how long the driver needs to stop. Arguably, one second is enough. Clearly at least 3 min. is enough. Again the judge threw out the charge.

Not surprisingly, the bicyclist began haranguing the prosecutor and almost needed to be escorted out of the courthouse by the bailiffs.

All that being said, I do not condone driving away after an accident. My client should have been charged with hit and run and failing to provide proper identification and failing to provide assistance. That would've made the case tougher. For whatever reason, she was not charged with the correct crimes and she is acquitted as she should be. If you have an accident, you should remain at the scene, exchange information, give aid and assistance and just be a decent human being.