Monday, November 11, 2013

Youthful carjacking defendant receives treatment along with incarceration

Youthful carjacking defendant receives treatment along with incarceration

My client was 18 years old when he was accused of carjacking the taxicab of an 86-year-old man.  In this particular case he and his codefendant apparently had no bus money and took the keys by force from a senior citizen.  The senior citizen was not threatened, there was no weapon and he was not injured.  Several hours later the police spotted the stolen car and allege that my client bailed out of the car and ran away.  Several hours later they apprehended him.  He was likely under the influence of PCP at the time.

At the time of this offense my client was on probation for robbery.  He had committed the robbery as a juvenile but his case was put into the adult court.  He may already also have had a conviction for felony theft as an adult.

As a juvenile he had significant contact with the criminal justice system.

I suspect that most people that read this post would have very little sympathy for this individual and perhaps hope that the judge would lock him up and throw away the key.  Before he can be locked up there does need to be proof beyond a reasonable doubt of his guilt.

I began looking at the proof.  The evidence against my client I thought was fairly strong.  The victim gave an immediate statement claiming he could identify my client.  My client had a distinct tattoo on his arm and the victim noticed that.  Also my client gave a confession to the police.  Finally, there were forensics which tied my client to the car: his fingerprints were inside the car including the rearview mirror.  That is a classic when a crook steals a car they put their hands on the rearview mirror to adjust it.  As stated, the evidence was pretty strong.

My client had a lengthy criminal record and was on probation.  Sentencing guidelines called for imprisonment of up to 10 years for this offense.  He owed his probation judge 3.5 years backup time.  He was basically looking at 13 1/2 years of prison time.

I spoke to some of his family members.  He had suffered abuse at the hands of other men from an early age.  He had drug problems.  He was bipolar and was suffering from ADHD.  He had never been to a "normal" school.  He was always in some sort of special needs schools.  His mother referred me to the principal of his last school.  I spoke with the principal but she was not particularly helpful in terms of telling me that my client was making great progress.  He was having significant problems in the school.

This barely 19-year-old young man was in deep trouble and could not seem to get out of this pattern.  Even though he had all this criminal history my thinking was that it was related to the abuse that he suffered, the psychological condition, his drug addiction.  My thinking was that if I could get him into an intensive treatment program he might be able to turn his life around.

Maryland has the Patuxent Institution youthful offenders program.  It applies to men and women 21 years and under.  They want the person there for at least five years so that they can give them intensive therapy, counseling and job training.  It is not possible to exit that program voluntarily.  You either graduate or you are kicked out because of serious behavior violations.  You cannot choose to leave the program.  They apparently have a pretty good success rate.

Armed with this information I negotiated with the prosecutor as well as the trial judge who happened to be the violation of probation judge.  We all agreed that if he received a seven-year sentence at the Patuxent Institute he had the best chance of turning his life around.  My client was sentenced to basically seven years with a recommendation for the Patuxent Institute for both offenses with supervised probation to make sure he is doing well after he is done with incarceration.

When choosing your defense attorney experience counts.  The judge and prosecutor have known me for decades and trust my judgment.  I had the knowledge to find a proactive program that will actually help my client rather than just put him in a warehouse.  I am hoping that he does well. 

Tuesday, October 22, 2013

Bicycle Accident Leads to Lawsuit against Target Inc. and Pacific Cycles, Inc.

I love bicycles.  I have quite a few bicycles.  For me the correct ownership formula for bicycles is your current stock +1.  Usually the acquisition of another bicycle is a happy event.  But not always.

My client was 11 years old when her parents purchased a new Schwinn bicycle from the Target Store.  The store assembled the bicycle.  The family eagerly picked up the bicycle.  It was a smaller mountain bike, shiny and sparkly.  It had fenders mounted on it to keep it clean.  It was very smart looking and the little girl was very pleased.

The little girl use the bicycle without incident until one day several months later she was pedaling on her way home.  While she was just riding along the front fender became disconnected from the front forks.  When the fender became disconnected it fell down forward onto the front tire.  When it made contact with the front tire it grabbed the front tire and locked up the wheel.  When the wheel locked up the little girl was pitched over the handlebars and slammed onto her face causing significant obvious facial injuries, dental injuries and less obvious other injuries.

An investigation into the bicycle revealed that the fender was held on by a regular nut.  Things that move such as bicycles vibrate.  Things that vibrate tend to loosen.  The customer does not know this but the bicycle company certainly does.  They can take steps to prevent critical parts from vibrating loose.  Instead of using a flat washer they could use a split washer.  Better yet, instead of using a regular nut, they could use an aviation lock nut.  An aviation lock nut is not just for airplanes.  Many bicycles have them installed.  An aviation lock nut has a small nylon insert which grabs the threads of the bolt and keeps it from loosening.  This bicycle did not have any sort of proper device to keep that fender on.  Further, many fasteners are kept on by torquing them to the proper tightness.  Using a torque wrench establishes that the fastener is neither too tight nor too loose.  When the bicycle was assembled by Target Incorporated there is no evidence that they used the proper assembly tools.

An aviation lock nut probably costs five cents more than a regular nut.  I can't believe that the manufacturer would be so cheap as to risk the safety and well-being of their customers in order to save a few pennies.

I made a claim upon both the manufacturer as well as the retailer requesting they compensate my client for her terrible injuries.  I thought I laid out her case in a logical and persuasive manner.  I presented the evidence of the injuries.  Without explanation they denied the claim.

My client recently filed suit claiming that both the manufacturer as well as the retailer are liable for injuries under a series of product liability, negligence and breach of warranty.  The case is in early stages of litigation.  In a strict products liability case, the plaintiff does not need to prove that the manufacturer was negligent.  If the plaintiff proves that the product is defective in some way, the manufacturer is strictly liable for the harm.  In my mind, this is a flagrant mistake and the bicycle was defective in a significant way.  I will update how this case turns out in the future.

Robbery Charges Dismissed (wait a minute, didn't I just read that?)

My different client was charged with robbery.  The victim claimed that my client as well as several other men took her iPhone at a party using force.  Several days later the victim was again accosted by the same or a similar group of men and more items were stolen.

Interestingly, her iPhone apparently appeared in Washington DC on some sort of electronic phone market.  The Metropolitan police contacted Montgomery County and they began developing a case.

In this case I had access to a very engaging and disarming investigator.  The investigator was able to find the victim and take a lengthy statement. It seems that my office was able to speak to the victim before the prosecutor did.  This is important because the interview can have an effect on the memory.  My investigator is very neutral and asks open-ended questions trying to get to the bottom of the matter in a fair and balanced way.  Sometimes an interview can be slanted and the witness's memory pushed into a direction it would not normally go.The victim in her statement had a poor memory of the events and was certainly not identifying my client with sufficient detail to prove that he was involved beyond a reasonable doubt.

The prosecutor to her credit saw the problems with the case and dismissed the charges.

When you hire your attorney it is often worthwhile to find out if the law firm has an investigator available.  The investigator may cost additional money but is often worth the expense.

Sunday, October 13, 2013

There is sometimes more than one side to a story, the prosecution should have listened

My client, a Maryland licensee, was stopped in June of 2013 for expired registration.  He explained to the officer that his license had been suspended in the past.  The officer ran a license check and concluded that my client had a license that was revoked in the state of Maryland.  The officer charged my client with driving without a license, driving while suspended and driving while revoked.

These are fairly serious traffic charges.  The maximum penalty is one year in jail and $1000 fine as well as 12 points on your driving record.

My client came to me and I looked at his citations.  He came to me less than one day before the trial date.  I had little to work with but my client explained that although he did not have a physical license at the time he was stopped in June of 2013 he had been to the motor vehicle administration and had applied to have his license reinstated months beforehand.  A few days before the stop he explained that he had called the motor vehicle administration and they advised that his license would be approved.  Based on that knowledge he began driving and we had the problem above.  Several days after he was stopped he did receive a letter from the motor vehicle administration advising him that he could go and pick up his license.

I called the prosecutor the day before trial and tried to explain that my client had taken care of the situation and perhaps we could resolve the case by him pleading guilty to driving with expired registration (a fine only, no points, no jail).  The prosecutor told me that in the police report my client admitted that he knew his license was suspended.  The prosecutor rejected my proposal so we came to court.

In court the prosecutor wanted my client to plead guilty to the offense of driving while suspended which in this case carried one year in jail possibility and 12 points on his license as well as a $1000 fine.  I am duty-bound to make whatever offer I get from the prosecutor but I did not recommend it to my client.  I am also duty-bound to represent my client zealously.  Of course I reviewed the police report wherein my client allegedly confessed to driving on a suspended license.  The report did not say that at all.  What my client admitted to the officer was that he had been suspended at some point in his life.  Not that he admitted to being suspended while driving at the time the officer pulled him over.  The distinction is like the difference between lightning and lightning bug.

The case was called for trial and my client pled not guilty.  The prosecutor put on the officer who testified as to why he stopped my client.  The officer on the stand could not state that my client admitted to him that he was driving while suspended when he was stopped by the officer.  The officer put into evidence my clients driving record which contains some problems for the prosecution.  After my client was initially revoked for an alcohol evaluation some years ago the notice of revocation was apparently mailed to his home address.  The driving record indicated that although the notice of revocation was mailed it was returned by the postal authority.  What that means is that my client may not have known about the revocation.  This is important because one of the elements of driving while suspended or driving while revoked is that you should know that you are indeed suspended or revoked.  You cannot like the ostrich bury your head in the sand and ignore the obvious facts of your life but in this case the prosecution could not prove that he actually knew that he was suspended or revoked at the time of the driving.  Further, the driving record did not demonstrate that my client was suspended at the time of the stop, he was simply revoked.

The burden is on the prosecution to prove every element of every charge beyond a reasonable doubt to the trier of fact.  The prosecution charged my client with driving while suspended in several forms.  They had no evidence to show that he was suspended.  After the prosecution rests, the defense has an opportunity to move for judgment of acquittal and argue that the prosecution failed to make a prima facie case as to the charge.  This motion for judgment of acquittal applies to every crime from murder down to a speeding ticket.  In this particular case there was no evidence of a suspension and the judge dismissed the charges.  The only charge remaining was that of driving while revoked.

I put my client on the stand and he explained that he had sent in his reinstatement application months beforehand.  Several days before he was stopped he had called the motor vehicle administration who advised him that he was once again eligible to drive.  Now I have found that people tend to hear what they want to hear (including myself).  But the motor vehicle administration probably told my client was wait for their letter and then he can go to the motor vehicle administration and get his physical license.  The news he heard was better than the news they actually gave.  Nonetheless, the judge was impressed with my client's testimony and found him to be credible.  The judge thought that my client may have jumped the gun but very importantly the judge thought that my client legitimately thought that he was eligible to drive.

My client was found not guilty of all the charges.

I have been representing people with traffic problems over the past 27 years.  Experience can help when picking your attorney.

Robbery Charges Dismissed

My client and two others were charged with armed robbery as well as conspiracy.  The victim claimed that my client held a knife to his throat and the other codefendants used physical violence and assisted in the robbery and stole various items.  The prosecution's initial evidence was the testimony of the victim.  There were no obvious eyewitnesses.  The prosecution began building their case in a rather sophisticated but a more and more normal fashion in today's technological age.  They used the cell phone signals that were supposedly being emitted from the three codefendants cell phones to locate their position at the time of the robbery.  The prosecution concluded that at least two of the cell phones were close in distance and time to where the victim claimed that the robbery occurred.

My client advised that he was not at the scene of the robbery but was rather with his girlfriend 10 miles away.  I began using the tools that were available to me in this case to establish my client's alibi.

I interviewed the girlfriend at length to get an itinerary of what they did that day.  Her recollection of the day was very detailed.  They were quite a distance away.  They used public transportation to get there.  They used an additional shuttle once they were there.  They went to a restaurant and a doughnut shop.  Again in today's technological age it is not difficult to leave an electronic trail.  They used public transportation to get into Washington DC.  I asked her to produce the smart card which would be date stamped as well as timestamped.  When they were on the shuttle bus I asked for camera footage from the shuttle bus.  The shuttle bus did have a camera but it was not running in this particular case.  I asked for receipts from the restaurant as well as the doughnut shop.  I asked the girlfriend to go down and check and see if she could remember the waiter and if the waiter would remember them.  Besides going on the defensive and I went on the offensive.

I hired an investigator to speak with the victim.  It took some doing because the prosecution did not want to give up the identity, address or telephone number of the victim but we were able to find the victim nonetheless.  My investigator is  a young woman and she is extremely disarming.  I have had much success with her getting the statements from victims and I recommend her highly.  She took a statement from the victim which was not consistent with the statement that the victim gave to the police.  She was also able to find out that the victim spoke with either family members or friends.  The statement that the victim gave to these people was different again from the other statements.

I did something also unique in my practice to date in this case.  It's normal for me to contact the attorneys of the codefendants and have a general idea of what is going on in their cases.  In this particular case I created a Google doc so that we could share information and be more efficient with our resources.  For example, I  shared what my investigator found out with the other attorneys.  Through this collaboration I was able to find out that the victim had show off pictures in Facebook and other social media.  In the show off pictures it shows the victim pointing a handgun at the camera, and otherwise mugging with a handgun.  I wasn't sure what to do with his information so we never provided it to the prosecutor.  Nonetheless, it was pretty clear that the victim was an apparent troublemaker.

By the time this case was ready for trial the prosecution began to realize that they had problems with their victim and consequently with their case.  They ultimately dismissed the charges against my client.  As a footnote, I thought this was very ethical of the prosecutor.  In her opinion she found it to be ethically questionable to prosecute the case where her victim gave several diverging stories about how the robbery happened and what was taken.

When you hire an attorney to represent you, it's worth asking what resources are available for your case.  H

Wednesday, October 9, 2013

Circle Treatment Center PC and Group Presentation

I have been practicing law for 27 years. One of the advantages of acquiring gray hair is invitations to speak before certain groups.

Circle Treatment Center, PC in Gaithersburg Maryland asked that I address their students regarding drug and alcohol education. The teacher there seemed well-informed and interested in his students. He was enthusiastic. I was able to speak to the students about the consequences of drinking and driving and how it affects their lives in the court system and their drivers license.

I spoke for probably one hour dealing with a chronology of the usual case which is the initial stopping by the officer through what happens and what possibly may happen by the time the case is over in the court system as well as for the motor vehicle administration.

Circle Treatment Center PC was kind enough to send me a letter of appreciation. The letter was very nice but it was also somewhat humorous. I quote:

"The information that you covered was precisely what the class needed. The presentation could have been better. As a substance abuse program, we feel it is imperative that the information is conveyed in an accurate and understandable manner, which your presentation undeniably accomplished"

I suppose my presentation could have been better. Do you think they meant to write "could not have been better"? Perhaps my ego is bigger than I think.

Tuesday, August 13, 2013

The Duty to Preserve Evidence in a Civil Case

I received the following e-mail from a very experienced and knowledgeable personal injury trial attorney. I think it bears repeating and I think Randall Ogg, Esquire from Washington DC for this information:

"  The case law is now clear that a party's  duty to preserve evidence commences at "the moment that litigation is reasonably anticipated. "  Victor Stanley, Inc. v. Creative Pipe, Inc, 269 F.R.D. 497, 521 (D. Md 2010)(citations omitted). This standard applies equally to plaintiffs and defendants.  The notion that the duty to preserve does not commence until suit is filed or a document request is received is outdated.  Judge Grimm's opinion in Creative Pipe outlines some of the cases in which parties and counsel have been sanctioned for both intentional and unintentional failures to preserve electronically stored information pre-suit, including evidence that could be lost by routine auto-deletions.  His opinion and those of others recently on the subject also emphasis that the party failing to preserve potentially relevant information better not set themselves up  as an early "judge" as to what is relevant in the case.  In the specific example that has been discussed on this forum - - negative Facebook postings - - it would be extremely risky for any plaintiff to start deleting  postings and then try to claim that they did so because they thought the postings were "irrelevant" to the case.   As several spoliation cases have noted, the fact that the party "deleted" the materials is pretty strong evidence that they believed it to be relevant and negative. Indeed, there are cases which hold that improperly deleted data will be presumed to be adverse to the deleting party.  The presumption may do more harm than the actual photo or comment that was deleted.



                In light of the emerging case law, not only would it be ethically impermissible for any attorney to advise a client with a PI claim to clean-up the existing Facebook postings, it would be negligent not to fully inform the client from the outset of the representation as to the scope of the duty to preserve and the potential ramifications of the client's failure to do so.     The case law makes clear that waiting until  a document request is received  is too late to start the preservation.   Moreover, if you have not told your PI client about the duty to preserve and your client on his or her own begins to clean up the social media accounts   and the defense finds out about this and some sanctions are imposed and a good case is impaired, you may have to answer to a lawsuit from your former client for failing to give proper warning as to what the client was supposed to do.  I would not want to be before any of the local federal Magistrate Judges  and have to argue that they should go easy on my client because my client was  not informed of the preservation duties about social media accounts  until after the first discovery request was served.



                The short of all this is that the emerging case law makes clear that the duty to preserve starts very, very early AND that the law has begun to impose on counsel new obligations to fully educate our clients (both on the defense and plaintiff side) as to the duty to preserve.  For this reason, the number of scary spoliation cases is growing as attorneys are not getting the message.



                Finally, what is sauce for the goose is sauce for the gander.  As plaintiff attorneys, none of us would suggest that  a defendant's duty to preserve does not start until a document request is received  or that it would be permissible for defense counsel to delay implementation of a preservation plan until the first document request is served.  As a whole, it is the plaintiff side that benefits more  from strong evidence preservation obligations being imposed. "





When a .07 Blood Alcohol Content Is Not a .07 Blood Alcohol Content

Recently I was presented with a fairly normal drunk driving case. The officer in his report stated that he saw the defendants vehicle lose control while going around the corner. After coming upon the defendant the officer smelled the strong odor of an alcoholic beverage, the defendant did poorly on the field sobriety tests and when the defendant elected to take a breath test results for .07 blood alcohol content. This is certainly sufficient information to charge driving while impaired in the state of Maryland. It also can have a disastrous consequence on the driving privilege of a driver who is under 21 years of age as my client was.

What is fairly normal on the surface can be different when the facts of the case are explored. In my particular case my client was a type I diabetic and has been such for over 12 years. At the time that my client was stopped by the police he was having a diabetic reaction based on an unusual set of circumstances. We were able to present a physician who had an expertise in diabetes. This physician was able to testify that the "alcohol smell" that the officer noticed was not actually alcohol but a byproduct of the diabetic reaction. Further, she was able to testify that the poor field tests were a result of the diabetic reaction which include dizziness and unsteadiness. Finally, she was able to give the opinion that what the breath machine read was not actually alcohol but ketones which again were a result of the diabetic reaction.

We had this expert in court and in court the prosecution dropped the driving under the influence as well as the driving while impaired charge. My client did not sustain a conviction at all.

Before the motor vehicle administration my client was facing up to a one-year suspension of his license as a result of the allegations. At the motor vehicle administration the expert testified consistent with the above. My client testified very credibly as did his father. At the end of the hearing the judge was persuaded that we had presented sufficient evidence as to cast into doubt the evidence presented by the state of Maryland. No action was taken against my client.

DWI usually means driving while impaired, for your defense attorney it should mean "defending with ingenuity". When you are selecting an attorney to defend you in a drunk driving case choose somebody who has the experience and insight to best represent you.

Friday, August 2, 2013

Defendant Corporation and Individual Workout Successful Settlement



I represented an individual and a Corporation who were in financial trouble.  They were unable to pay a substantial creditor and suit was filed against the president individually as well as his Corporation.  The problem was that the president had guaranteed the debt personally.  It is one thing if the claim were only against the corporation.  The corporation was in bad shape and had no assets.  The corporation was basically judgment proof.  The individual on the other hand would be exposed and whatever assets he had could be taken by the creditor to satisfy the judgment.  This would of course include his house, cars, bank accounts, other items of value.

Based on the economic plight of both the individual and his Corporation we were able to settle this case for substantially less than was originally demanded by the creditor.

If you are sued for debt, contact me.  You need to answer the complaint and defend yourself.

Marijuana Charges Dropped against Juvenile



My client was charged with possession of marijuana in juvenile court.  The state's case was fairly strong.  They observed her with marijuana close to school property.  She was a juvenile who had never had juvenile delinquency charges in the past.  The state had their witnesses available and the evidence was analyzed.  It would not have been a difficult case for the state to prove.  Rather than fight the case we were able to successfully negotiate a resolution wherein the charges would be dismissed if my client attended a drug education class, performed some community service, wrote an apology letter, stayed out of trouble and otherwise did the right thing.

These projects were easy because my client is a good student and a decent person.  Because she did these things the prosecution outright dismissed the charges in juvenile court and the delinquency petition is dismissed and the case is closed.

If you are charged with a drug offense, please contact me.  Since 1986 I have handled all manner of drug cases including possession, distribution, possession with intent to distribute, conspiracy as to all manner of drugs.

Thursday, August 1, 2013

When Is a Hit-And-Run Not a Hit-And-Run?

Answer: when the victim does not show up.  And in this case my client at best tapped the victim's car at a stoplight.  He got out of the car.  She got out of the car.  She was on her cell phone and remained on her cell phone.  He asked if she was okay and she responded that she was.  She kept talking on her cell phone.  My client looked for damage on her car.  Out of habit he took pictures of the back of her car indicating no damage.  She would not get off of her cell phone so my client left.

Apparently the victim contacted the police and complained of injuries and of a hit and run accident.  My client was charged with the crime.  I reviewed the pictures that he had.  They showed no damage whatsoever.  The woman apparently went to the hospital.  I was suspecting that she was basically making a fraudulent insurance claim.  No damage to her car.  Telling my client that she was okay.  I did not share the photographs with the prosecutor because I wanted to trap the woman during cross examination.  I wanted her to testify that my client left the scene of the accident almost immediately after the accident.  My client had at least five pictures.  I suspect it takes at least a minute if not more to take five pictures.  Not to mention his one-sided conversation with her.

The prosecutor kept us there all afternoon waiting for the victim to show.  In this case the victim pressed charges and ran.  My client did not hit and run.  The case was dismissed.

Maryland has a comprehensive scheme regarding hit and run.  Common sense and the law dictates that after an impact, no matter how minor, you should stop and exchange drivers license information as well as insurance information.  If there is injury you should take reasonable steps to help the injured person.  If you have any doubts about the other person's motivation you might call in the police.

Fools Rush in Where Angels Fear to Tread

I was hired at the last minute for a serious traffic case.  My client was from out of town so I never met with him but I had a chance to speak with him for about one half hour not long before court.  He told me that he was charged with possessing and presenting a fraudulent license, having no insurance on his vehicle and falsified registration and plates.  He told me that he was stopped on his way to New York.  He showed the officer his legitimate drivers license, showed him car registration and showed him proof of insurance.  Despite this evidence the officer confiscated the car and put these serious charges against my client.  My client's car was searched for weapons and contraband with negative results.  My client was marooned in Maryland for 10 hours with his passenger and baby waiting for help from out-of-state.  My client was just passing through.  I found my client's story to be compelling and I was outraged at the conduct of the officer.  I was wondering if there was racial motivation and my client was the subject of racial profiling.  I asked my client if there were any facts needed to tell me which might have a negative impact on his case.  Nothing that he knew about.

I met my client at the courthouse.  The courthouse was many miles from where I usually practice.  I did not know the judge nor the prosecutor.  I spoke with my client briefly and reviewed his documentation.  It did indeed appear that his license was legitimate, his insurance was in order, and the vehicle had proper registration.

I approached the prosecutor keeping my indignation in check at the civil rights violations my client suffered.  The prosecutor did not know what was coming.  He was looking to see if my client would pay one of the underlying tickets and the serious charges would be dismissed.  I told the prosecutor that my client was in no mood to deal and that we were inclined to contact the Department of Justice and begin a civil rights investigation against the conduct of the officer.  I wanted the prosecutor to call the case so that the officer would have to testify under oath and I could examine the officer fully as to the events of that day.  The prosecutor was not so interested in my crusade and elected to drop the entire case.  Of course my client was pleased with this result.

Out of habit even after the prosecutor committed to dropping the case I requested to review the state's evidence.  The state's evidence was merely a several page police report.  In the report the officer stated that he stopped the vehicle because it had temporary registration in the back window and he was unable to see the expiration date.  In my mind that is a legitimate reason to stop the vehicle.  The officer further stated that the passenger claimed that she had just purchased the vehicle two days earlier and showed a bill of sale which in my mind was grossly disproportionate to the actual value of the car.  The officer then ran the VIN number and was able to determine that the passenger had actually owned the vehicle for several years and that there was an insurance block from out-of-state on the vehicle.  Further, the passenger then admitted that the registration plate was fraudulent.

The case was done and over and I am certain my client had a legitimate license and did have legitimate insurance on the vehicle.  I have my doubts about the registration plate.  Had I seen the discovery prior to my crusade I might have tempered my approach somewhat.  Fools rush in where angels fear to tread.*

*Fools rush in where angels fear to tread is used by Edmund Burke in his work Reflections on the Revolution in France (1790)

Wednesday, June 5, 2013

Maryland Automobile Insurance and Personal Injury Protection

A question I frequently hear is whether an automobile insurance company in Maryland can raise rates or cancel the policy when a claim is made for personal injury protection benefits. The Maryland Gen. assembly makes it clear in the statute below that the answer is "no".

In case you don't know, PIP in Maryland covers your medical expenses, lost wages and or funeral expenses up to a statutory minimum of $2500. PIP is required to be sold along with the automobile liability policy unless the insured specifically rejects coverage. Even though I am not fond of insurance I always tell my clients to have PIP. It is fairly cheap and very quick and you can usually raise your limits above $2500. Personally I raised it to my maximum of $10,000. I ride a bicycle and the PIP can cover income that I lose up to $10,000 if the car strikes me while I am on my bicycle.

MD Code Ins. 19-507 Personal injury protection coverage -- When benefits payable; coordination of policies; surcharge; subrogation (Maryland Code (2011 Edition))



(a) When benefits payable. -- The benefits described in Sec. 19-505 of this subtitle shall be payable without regard to:

(1) the fault or nonfault of the named insured or the recipient of benefits in causing or contributing to the motor vehicle accident; and

(2) any collateral source of medical, hospital, or wage continuation benefits.

(b) Coordination of policies. --

(1) Subject to paragraph (2) of this subsection, if the insured has both coverage for the benefits described in Sec. 19-505 of this subtitle and a collateral source of medical, hospital, or wage continuation benefits, the insurer or insurers may coordinate the policies to provide for nonduplication of benefits, subject to appropriate reductions in premiums for one or both of the policies approved by the Commissioner.

(2) The named insured may:

(i) elect to coordinate the policies by indicating in writing which policy is to be the primary policy; or

(ii) reject the coordination of policies and nonduplication of benefits.

(c) Surcharge prohibited. -- An insurer that issues a policy that contains the coverage described in Sec. 19-505 of this subtitle may not impose a surcharge or retier the policy for a claim or payment made under that coverage and, at the time the policy is issued, shall notify the policyholder in writing that a surcharge may not be imposed and the policy may not be retiered for a claim or payment made under that coverage.
(d) Subrogation. -- An insurer that provides the benefits described in Sec. 19-505 of this subtitle does not have a right of subrogation and does not have a claim against any other person or insurer to recover any benefits paid because of the alleged fault of the other person in causing or contributing to a motor vehicle accident.

If you have questions about your insurance coverage call me.

Sunday, June 2, 2013

Personal Injury Claims and ERISA Subrogation

Recently the United States Supreme Court held that an employer as an administrator of a self funded  ERISA (Employee Retirement Income Security Act of 1974) plan for its employees could recover the insurance benefits it provided to that employee.

In this particular case, US Airways Versus McCutchen, the plaintiff was involved in a car accident.  He incurred medical expenses of approximately $66,000.  His attorney settled the case for $110,000 (not that it is relevant but I am assuming that the defendant in the car accident had limited insurance coverage).  I am also assuming that the attorney took the usual 40% of the settlement.  If my assumptions are correct the plaintiff was left with exactly $66,000.  He was also left with significant pain and suffering as a result of the accident.

His employer which administered the health insurance plan had a contract between employer and the employee.  That contract provided that the employer was entitled to reimbursement for medical expenses it paid out if a third-party was responsible for the injuries to the employee and the employee collected from that third-party.  The employer sued him for reimbursement of the medical expenses.

The case wound its way up through the federal court system until it ultimately reached the Supreme Court of the United States.  The Supreme Court held for the insurance company/employer.  It held that the terms of an ERISA plan govern in actions brought under that specific portion of the federal law, § 502(a)(3). The Court based its decision, in part, on the idea that subrogation and reimbursement provisions of self-funded ERISA plans are seeking to enforce rights that are based on the contract itself.  Relying on a previous decision, the Court found that proper enforcement of this type of “equitable lien by agreement” is accomplished by holding the parties to their mutual promises as reflected in the plan contract. Accordingly, the Court rejected the application of general principles of equity (e.g., unjust enrichment) where a health plan’s terms contradict those rules.

What this means for those injured (who have self-funded insurance plans ) through the fault of others and their attorneys is that they should look at rights of reimbursement by the insurance company at the outset of the case.  In the instant case, it seems like the attorney made out, the insurance company made out and the badly injured plaintiff not only was left with permanent injuries but an outstanding bill.

If you or someone you know has been injured you need to be aware of the situation and certainly hire an attorney who can deal effectively not only with the tortfeasor but also with the health insurance company.

Thursday, May 30, 2013

Some Personal Observations regarding Ignition Interlock

My client had significant alcohol related driving issues from about 2002 through 2006.  More specifically, he had four encounters with the law regarding drunk driving.  Not surprisingly his license to drive was revoked and remained revoked for many years.  My client began to get his life under control and applied to have his license reinstated.  Because of this history, the Maryland motor vehicle administration required that he installed ignition interlock in his vehicle in order for his drivers license to be reinstated.

Unfortunately for him, while he was going through the reinstatement process he was stopped by police for speeding and charged with driving while revoked which is a 12 point offense and carries a maximum of one year in jail.  After he received this ticket he finally did obtain his drivers license.  He also had substantial proof that he had a successful small business and was also an excellent employee.

It is not particularly difficult for a prosecutor to prove that a driver was revoked for trial purposes.  Normally they call the police officer who made the stop and that officer will testify that the defendant was the driver, the driver was on a public highway, that they have the drivers Maryland record which shows that the driver was revoked.  They must also prove that the driver knew that he or she was revoked but that can be established through either an admission by the defendant who would tell the officer they knew they were revoked or through the driving record itself.  In my particular case the prosecutor was rather hard-nosed and offered my client a guilty plea to the main charge of driving while revoked with the aforementioned penalties and problems.  I will normally not recommend my client plead guilty to the main charge.  My thinking is why have an attorney if the attorney is not willing to negotiate or obtain a better resolution than the client on his or her own.  If I cannot negotiate a better resolution why not put up a fight?  Obviously I cannot guarantee a win for the client but at least the prosecutor will know that I have no problem going to trial for my clients and making them prove their cases.  It is my belief that prosecutors who know that a defense attorney will fight rather than fold will usually end up with better case results.  After some negotiation the prosecutor offered a guilty plea to driving while suspended, which in this case exposed my clients to 60 days in jail and three points on his driving record.

Having obtained that offer I tried to confirm the whereabouts of the police officer whom I knew was missing.  I checked with police liaison who confirmed that the officer was called and was on his way in.  I spoke with another officer who advised that this particular officer is reliable and normally will come to court.  My client and I discussed the pros and cons of taking the offer and ultimately he did accept the offer.

The judge was somewhat conservative and concentrated heavily on my client's history of drunk driving.  I kept pointing out to the court that was many years ago and things have changed and he has ignition interlock on his vehicle now.  The judge ultimately gave my client three days in jail and unsupervised probation.  Not a terrible sentence considering my client's history but a bit of a problem for both of us.

My client had driven his vehicle to the courthouse.  I told my client I could drive his vehicle to my office and leave it there for him to pick up later.  The only problem is his vehicle had ignition interlock.  I have never used ignition interlock and now have a bit of an education.

Don't try to start the car before using ignition interlock.  The device was smart enough to tell me to turn off the ignition.  Thereafter, after the device had warmed up, it told me to blow.  I blew hard for about 12 seconds and it would abort.  I tried this several times and the device would abort.  I tried blowing while humming that did not work.  Fortunately the device had a telephone number on it which I called but the telephone number was wrong.  I had the telephone number for one of the ignition interlock suppliers on my smart phone and called them and they told me that not only must I blow but eventually I must inhale.  It seems that some people will use a balloon to try to trick the ignition interlock into believing that they are providing the breath sample.  I have no idea how that would work.  If I have been drinking and blow into a balloon, I would think that my alcoholic breath would be in that balloon.  After receiving advice from the technician I again tried blowing and again was failing.  Finally, I noticed that there was a hole on the other side of the device.  I plugged that hole with my finger and began to blow and finally was met with success.  The device told me to inhale and I did and I was able to start the vehicle.

After driving for about 4 min. the device started beeping and insisted that I begin blowing into it again.  Again I had a bit of a problem getting it to accept my breath sample but I was finally successful and was able to get the vehicle to my office.

If you get the ignition interlock, make sure you understand the instructions.  Also make sure that your vehicle is in decent shape.  If you have a bad battery for example, it can cause problems with the ignition interlock.  Before accepting ignition interlock, call me to discuss your case.  You may have defenses that you do not know about.

Bicycling and Rules of the Road

Although the below Maryland statute is not new it is worth looking at.  Bicyclists are often told to ride as far right as possible and although this is generally correct it is not always the case.  Further, it is not unusual to hear car drivers tell bicyclists to ride single file.  That is also not always the law.  If you review the below statute you will see that there are exceptions to these general rules.

Paragraph 6 allows a bicyclist to "hold" the lane if the Lane is too narrow for a another vehicle to share the Lane with the bicyclists safely.  My interpretation of that is I can "own" the Lane when it would be unsafe for others to pass me while in my Lane.  This is not only a decent law, it makes common sense.

Subsection (b) specifically permits riding two abreast in limited circumstances.



MD Code Transp. 21-1205 Riding on roadways or on highway (Maryland Code (2013 Edition))


(a) Riding to right side of roadway. -- Each person operating a bicycle or a motor scooter at a speed less than the speed of traffic at the time and place and under the conditions then existing on a roadway shall ride as near to the right side of the roadway as practicable and safe, except when:

(1) Making or attempting to make a left turn;

(2) Operating on a one-way street;

(3) Passing a stopped or slower moving vehicle;

(4) Avoiding pedestrians or road hazards;

(5) The right lane is a right turn only lane; or

(6) Operating in a lane that is too narrow for a bicycle or motor scooter and another vehicle to travel safely side by side within the lane.

(b) Riding two abreast. -- Each person operating a bicycle or a motor scooter on a roadway may ride two abreast only if the flow of traffic is unimpeded.

(c) Passing. -- Each person operating a bicycle or a motor scooter on a roadway shall exercise due care when passing a vehicle.

(d) Walking bicycles on right side of highway. -- Each person operating a bicycle or a motor scooter on a roadway may walk the bicycle or motor scooter on the right side of a highway if there is no sidewalk.

Even though the statute gives certain rights, I will still use common sense.  I would rather be alive than dead right.  If you are involved in a bicycle accident and suffer injury and you believe someone else is at fault, call me and I can help you.

Friday, May 24, 2013

Sometimes It's Better to Be Lucky Than Good

My client was charged with driving without a license and failure to reduce speed to avoid a collision.  The prosecution's case was basically that a state trooper came upon an accident site.  At the accident site trooper claims he saw my client exiting from the driver side of the vehicle after it crashed into the guard rail.  I interviewed my client and he repeatedly told me that he had been charged before with driving without license but that the charges were always dropped.  In other words he had no prior convictions or probation before judgment for driving without a license.  Driving without a license is a misdemeanor in Maryland and carries with it a maximum jail sentence of 60 days and/or a $500 fine for a first offense.  The sentence can be higher for second and subsequent offenses.

I relied on my client's representations.  He came to me less than 12 hours for the trial date.  The prosecution made a plea offer which was plead guilty to the main offense and they would recommend that my client gets 60 days in jail all of it suspended.  I think they believed my client had no prior convictions as I did.  I was 90% certain I could beat the accident charge and at least had some legal arguments why we should beat the driving without a license charge.  I did some background checking on the judge and was under the impression that there was no trial penalty.  The trial penalty is when the judge punishes the defendant for going to trial rather than pleading guilty.  I told my client the offer and we decided to go to trial.

At trial the officer testified on direct examination that he came upon an accident and my client was getting out of the driver side of the car.  My client admitted to falling asleep and running into the guardrail.  My client admitted he had no license.  The trooper had the driving record which showed that my client had no license.  It also unfortunately showed that my client had received a similar charge and was found guilty three years earlier.  This fact was not revealed to me until moments before the trial.  This made the case much worse for my client.

On cross examination the trooper revealed that he did have a dashboard camera and that it was operating at the time that my client was exiting the vehicle.  The trooper did not bring the film from the camera.  The trooper also admitted that there was extensive front-end damage and that the vehicle was smoking.  The trooper also admitted that he had no idea how long the vehicle had been there.

After the prosecution rested I argued to the court that my client should be acquitted of failure to reduce speed to avoid a collision.  The Maryland statute is clear that in order to be guilty you must strike a vehicle, a person or a conveyance.  I argued to the court that a guardrail is not a conveyance.  The court did not have a precise definition of conveyance but I kept arguing that a conveyance is something that moves.  Finally the court relented and granted that motion.  I also argued that my client should not be convicted of driving without a license because the prosecution could not prove that my client was driving.  Yes he confessed to driving but in Maryland the crime must be corroborated by independent evidence.  For example, if there was evidence of injury that would suggest that my client was in the car at the time of the accident and that would corroborate his confession.  If there was evidence that the vehicle belonged to him that might suggest that he was in the car.  There was no such evidence.  The court countered with the evidence that the trooper claimed he saw my client getting out of the vehicle on the driver side.  I argued that the videotape of the incident would be dispositive of that and it was exclusively in the trooper's control and he did not bring it in.  I further argued that nobody would remain in a vehicle that is smoking.  They would be very afraid and get out of the vehicle.  It made no sense for my clients to be in the smoking vehicle for minutes if not an hour.  I thought the argument was a good argument but it did not persuade the court.

Despite good arguments my client was unlucky that he forgot about his earlier conviction.  The prosecution pointed out the earlier conviction to the court.  Rather than walk out of the courtroom he received 10 days in jail.

My client was lucky when at first the prosecution did not know about his prior conviction.  His luck ran out when I tried to be good and beat his case for him.  The prosecution found out about the prior conviction and so did the court.  Sometimes it is better to be lucky than good.

Sometimes It Pays to Be Good Rather Than Lucky

My client was charged with shoplifting.  The event occurred almost one year ago.  At the time of the event neither the store security nor the police apprehended the actual shoplifters in the act.  A video was taken of the perpetrators but they were unknown to store security.  In the interim an unknown informant claimed that they knew who the shoplifters were and accused my client.  Felony theft charges followed which were very disturbing to my client.

My client hired me and as is normal practice I requested discovery from the prosecution.  Discovery is certain information about the case that the prosecution must turn over to the defense.  Certain information must be turned over without request such as information which would tend to exculpate the defendant.  The prosecution cannot sit on information which shows the defendant to be innocent.  Other information is only turned over upon request.  I requested all possible information.

In the information provided there were police reports.  In the police reports there were descriptions of the various offenders.  They named my client and described my client.  What was interesting is that they describe my client with long hair braided in an intricate manner.  My client has had a shaved head since a long time before the alleged shoplifting.

The prosecution had no evidence that my client took the items, there was no confession from my client and the physical description did not match.  I pointed out these various problems to the prosecutor and the charges were finally dropped.

If you are charged with a crime, hire your attorney as early as you reasonably can.  That will give the attorney a chance to obtain the discovery and have enough time to carefully review the evidence that the prosecution possesses.  In this particular case the prosecution's evidence against my client was consistent with not guilty.

Wednesday, May 15, 2013

State Has an Obligation to Prosecute Violation of Probation in a Prompt Manner



My current client was put on 18 months of probation in May of 2007. (He was not my client in 2007 when he was charged and convicted of his crime and put on probation.) In November of 2007 allegations were filed with the court that he had violated his probation. Based on the allegations of violation filed in November of 2007 a warrant was issued for the arrest of my client.Although my client stopped going to probation he did still remain in the Montgomery County Maryland area. Further, he kept in occasional touch with his probation agent on an informal basis. Finally he had other court matters wherein he appeared in the Maryland court system. He was never served with the arrest warrant.

In the spring of 2013 he was stopped for a traffic matter and served with a warrant charging him with violation of probation in November of 2007.

The general rule in Maryland is that if the allegation of violation of probation occurred during the period of probation the state may file this at any time. It can be filed even after probation has ended. In this case the allegations were filed while probation was ongoing. The problem for the prosecution in this case is that they did not serve the warrant until about 5 1/2 years after the warrant was issued. Maryland appellate courts have held that a defendant is entitled to due process rights as guaranteed by the United States Constitution. The touchstone of due process is fundamental fairness. It is unfair to a defendant to let this type of charge linger for such a long time. Memories fade and witnesses disappear altogether. There is the burden of waiting for the other shoe to drop.

I was armed with my case law and ready to argue but it was unnecessary. I suspect the judge knew where I was going to be coming from and closed the probation in a satisfactory manner.

There is an old maxim in equity law, "he who sits on his rights loses them".

Thursday, May 9, 2013

Sometimes Less Is More-Peace Orders



A temporary peace order was placed against my client. The petitioner was claiming that my client had harassed them as well as cause malicious destruction to their property.

My client gave me background information not only as to the event but significant back story regarding matters which were not directly related to the event.

On the trial date I approached the petitioners in an effort to resolve the case to everyone's satisfaction. They wanted the judge to resolve the matter and I let it go.

The case was called for trial and the judge inquired whether the respondent (that would be my client) would be willing to enter into a consent order agreeing not to have any unlawful contact with the petitioners. Even though there is always a risk of going forward with trial my client declined. Consenting to a peace order leaves a permanent record on public websites against you. Also, I have seen where the petitioner after obtaining a peace order fabricates events which then puts the respondent in jeopardy of not only contempt of court but a secondary criminal prosecution. In other words, the petitioner makes things up and all of a sudden my client is looking at jail time. You cannot get jail time for losing at the initial peace order hearing.

The judge began examining the two petitioners as to the basis for the request for a peace order. They told the judge that my client had been shouting at them, had been telling them to leave the premises, had sent rude e-mails and texts. Never did the petitioners bring up the subject of the alleged destruction of their property. Also, at the beginning of the questioning by the judge, he wanted the address of the petitioners. I immediately objected and advised the judge that we did not want to know the address of the petitioners because that was part of our defense. In a peace order hearing the petitioner must prove that past events which are grounds for the peace order are likely to occur in the future. If my client has no idea where the petitioner lives then that reduces the likelihood of such a violation.

When the judge was done, my client through counsel had an absolute right to cross-examine the petitioners as to this story. I declined to ask any questions.

At that point the judge wanted to ask my client questions about the case. Again I objected. My client has a Fifth Amendment right not to incriminate herself and that right trumps the courts right to ask questions. The judge sustained the objection and stopped the questioning of my client immediately. I did not offer any evidence in our case in chief.

When it came time for argument I was able to establish to the judge that no harassment has occurred. In order to prove harassment the petitioner needed to establish several facts including a reasonable request to stop the texts and/or e-mails. The record was completely silent on that matter. Further, the petitioners could not prove that this behavior was going to likely occur in the future.

The judge denied the request for the peace order which was the proper result.

I did not ask a single question and I did not put on any evidence. That is somewhat unusual because we lawyers like to talk. But in this case it was the right call.

Because the peace order petition was denied my client has a right to request that the matter be sealed or shielded. The court does not charge for this request and the court has a form which needs to be filled out. After the form is filled out and assuming that the respondent qualifies under the requirements of law, the court will have a hearing down the road to consider whether to shield the public record.

If you need help with a peace order case I would be happy to help you.

Monday, April 15, 2013

Persistence Pays off



I have a client charged with assault among other things in the District Court.  On the trial date he was locked up and I had received the case one day earlier.  I did not want to postpone the case because he was locked up on this case.  I had as much information as I needed for the trial.  The odds weren't good but he was on probation in another matter so the guilty plea was out of the question.  At the trial the victim testified that my client had assaulted her.  An independent witness was extremely unhelpful to my client.  She was close enough to see what was going on, have good vision, had no interest in the outcome of the case.  At the end of the case my client was convicted.  The judge gave a surprisingly high sentence for the activity involved.  There were no weapons.  Nobody needed medical attention.  It was more of a fracas.  Despite the fairly small nature of the assault the judge sentenced by clients to 10 years in prison with all but two years suspended.

We appealed the case requesting a jury trial.  Between the time of the conviction in District Court and the time that the case came to trial in the Circuit Court the victim apparently became homeless and lost interest in pursuing the case.  All charges were dropped.  Instead of a 10 year sentence was all but two years suspended, my client had the charges dropped against him.

If you need a lawyer who is persistent and always tries to get the best result for you, please call me.

Wednesday, April 10, 2013

Bicycle equipment failure leads to significant settlement



My client was riding his bicycle in the countryside when his seatpost bolt snapped, the saddle fell off and he fell off his bicycle badly breaking his leg.

He had purchased his bicycle new several years earlier. He had taken good care of his bicycle. He had not abused his bicycle. His bicycle was properly maintained.

As an avid bicyclist and former mechanic I do not like making product liability claims without good reason. In this case there was a good reason. A part as important as a bolt holding on the seat should not fail. It is such a critical part. If it fails, the seat must fall off. If the seat must fall off there is a reasonable likelihood that the cyclist will follow. In this case, the cyclist did follow and broke his leg.

Years ago I worked in a law firm that defended automobile manufacturers such as BMW from product liability suits. I had the bicycle mechanical background to analyze the situation. I had the legal background to prosecute the situation. I had an expert metallurgist available to examine the bolt. My client was very sympathetic and credible. His injuries were very real. Combining all of these factors led to a favorable settlement for my client.

Shielding a Protective Order

The state of Maryland has a powerful, far-reaching and very public website.  It basically includes a great majority of the court cases filed in Maryland.  It includes civil, criminal, traffic, special proceedings and many other forms of cases.  It is a well-known and widely used website.  Employers use it for background checks, I use it to look for people or check on witnesses.  Some of those records stay on for years.  If you Google "Maryland Judiciary case search" it will get you write to that website.

Recently I had a high-profile client who some years ago had a protective order issued against him.  That protective order was dismissed but when I was doing some research for my client I found that he was still listed on the Maryland website.  There was his name and his address and a spurious claim that was dismissed by agreement.  I told my high-profile client about this rather public aspect of a long past incident.  He was justifiably upset.  I told him that there is a mechanism in Maryland whereby a protective order that is dismissed or where the petitioner loses at trial and their claim is denied can be shielded or sealed from public scrutiny.

It is not particularly difficult.  We petitioned the court for relief.  The court granted a hearing.  The "victim" would be notified of the hearing and could present their own evidence as to why the matter should not be shielded.  Assuming the victim did not meet that burden of proof the court would shield the record.  That is exactly what happened in this case and my high-profile client can enjoy his anonymity on this website.  In other words, if you go looking for him on this website you will not find him.

If you need help shielding or ceiling your record please contact me.

When Is a Theft Not a Theft

Recently a client came to me accused of theft.  It seems that he and his longtime "friend" had come to an agreement regarding borrowing a truck.  The longtime "friend" agreed to rent the client the truck for one month for $500.  Money exchanged hands and my client put his tools into it and all was good.  At the end of the month my client advises that he agreed to purchase the truck for an additional $1000 (the truck was rather old and used).

The "friend" claims no such agreement took place and preferred theft charges against my client.  My client did not know this until he was stopped by the police during a felony stop.  If you don't know it, a felony stop in Maryland involves police with their guns out ordering you around.  My client was quite surprised and extremely compliant.  During the course of the investigation my client produced the written lease agreement.

The police called the "friend" who did not tell them anything about the lease and claimed that my client was a stranger.

Prior to trial I presented the lease evidence to the prosecutor.  Despite this evidence of a lease, even though the lease was expired by one week when my client was pulled over and arrested for theft, it did not persuade the prosecutor to drop the charges.

My client was charged with theft in violation of criminal law 7-104, theft of a motor vehicle in violation of Maryland criminal law 7-105, and unauthorized use of property.  At trial during cross examination the "friend" testified that he only knew my client through a third person and that my client was somewhat of a stranger.  The officer testified that the "friend" never mentioned anything about a lease or about knowing the client.

When the state rested their case I asked the judge to acquit my client of all of the criminal charges.  I argued that under Maryland law the commission of the theft (the actual taking of the item) must coincide with the criminal intent to take the item.  In other words, when you are stealing something you need to know at that time that you are stealing something.  Clearly, in this case that was not the situation.  My client received the truck with the permission of the "friend".  I had case law to back up my argument.  Despite this argument the judge at that point acquitted my client on only one of the charges.

We needed to put on a defense.  My client took the stand.  My client testified that he knew the "friend" for 17 years and the "friend" had been at the client's home on many occasions.  My client also testified that he had made an agreement to purchase the truck and paid an additional $500 after the lease expired.

At the conclusion of the case the judge acquitted my client of all of the criminal charges.

I told my client that in the future he should get receipts for his cash payments.  A receipt for that purchase payment may have avoided the charges altogether.

Monday, March 11, 2013

Speedy Trial and Drunk Driving

A defendant in a drunk driving case enjoys speedy trial protections from both United States Constitution and article 21 of the Maryland declaration of rights. In this particular case the defendant was charged with drunk driving in August of 2011. His case first came to court in November of 2012. At that time I moved to dismiss the charges against him based on the state's violation of his speedy trial rights. The District Court judge denied that request and we went to trial in the District Court and he was convicted of driving while impaired and acquitted of driving while under the influence of alcohol (the more serious charge).

Rather than accept probation before judgment which would have stricken the conviction we appealed to the Circuit Court for Montgomery County.

In the Circuit Court we again made the argument that his speedy trial rights were violated. Maryland's High Court has decided a case which was almost identical to the facts in my client's case.

In the case of Divver versus state, decided by the Court of Appeals in 1999, the defendant was charged with drunk driving. It took just over one year from the date of arrest until the first trial date for the case to be heard. The defendant argued that his speedy trial rights were violated and at the District Court level and that the Circuit Court level the court found against him. At the highest level, however, in the Court of Appeals, they sided with that defendant. They looked at four factors to determine whether the defendant speedy trial rights were violated:

1. The length of the delay
2. The reason for the delay
3. Prejudice to the defendant
4. Assertion of the speedy trial right

In my client's case the delay was over 15 months. In the appellate case noted above the delay was just over 12 months. In my client's case the reason for the delay was unknown but it certainly wasn't the fault of the defendant. In the appellate case above the reason for the delay was overcrowding of the court docket. In both cases there was no actual prejudice that was obvious to either defendant; neither one was incarcerated, neither one lost the ability to effectively defend themselves (witnesses moving or dying or becoming otherwise unavailable). In both cases the defendant asserted their speedy trial rights. In my client's case I asserted his speedy trial rights before the court had even notified him of a trial date. I asserted his speedy trial right in the District Court, in the Circuit Court at the pretrial and then again at the motions hearing.

The judge in my client's case looked at the various factors, I ask the court to follow established precedent (the cases were almost identical) and the judge dismissed the drunk driving charges against my client because his speedy trial rights were violated.

Whether you are facing a drunk driving charge, shoplifting, possession of controlled dangerous substance or other misdemeanor or sexual offense, drug distribution, first-degree assault or other felony, speedy trial should always be considered in analyzing your case.

Wednesday, March 6, 2013

Car Accident and Montgomery County Juries



I just finished a three day jury trial in a fairly normal car accident case with some unfortunate twists.  My client was involved in a car accident in September of 2008.  The other driver made a left turn in front of him and my client broadsided the car.  The other driver was clearly at fault assuming you are reasonably intelligent and not an insurance company.  My client suffered some injuries to his neck and later on they spread down to his back.  His wife was a passenger in the vehicle and she also suffered some injuries.

Both of them went to the emergency room later that evening complaining of injuries to their neck.  They were referred to see their own doctors if the problems continued.  Both of them went on to see their own doctors for follow-up therapy.  Both were basically diagnosed with whiplash type injuries affecting their neck and back.  They went to conservative treatment which was basically physical therapy.  My client did not resolve after approximately 8 months of conservative treatment.  His doctor, who treats several thousand people annually, did the normal, conservative and intelligent thing and ordered an MRI.  The MRI showed that my middle-aged client had significant degenerative changes to his spine.  His doctor recommended that my client see a pain management specialist.  The pain management specialist gave my client epidural injections over the next year which helped somewhat.

I received the case from another attorney sometime after the lawsuit was filed and seven months before trial.  I found my client to be a decent person and sympathetic if not somewhat forgetful.

His forgetfulness I believe cost him somewhat in the case.  After a lawsuit is filed the parties conduct discovery where they learn about the other party's case.  In this case the insurance company requested that my client answer interrogatories which are formal questions under oath.  My client did so.  Some of the interrogatories somewhat asked if he had prior injuries.  My client did not reveal prior injuries.  Also during discovery depositions are taken.  My client was asked point-blank if he had any prior injuries to his neck or back and he replied he did not remember.  Also during discovery the insurance company tends to subpoena the medical records for approximately the past 10 years from the client's slick medical providers.  I received documentation which seemed to indicate my client had pre-existing injuries.  I asked my client about this but he truly could not remember.  Finally I received actual records showing that my client was in physical therapy with his treating Dr. just five months before this accident of September 2008.  I truly believe my client did not remember that he had been seeing his doctor earlier but it did not look very good in front of the jury.

When the case came to trial I explained to the jury immediately that my client had prior injuries before the accident.  I explained that my client just did not remember this.  I also explained that 2 1/2 years after the accident he had another accident also injuring his neck and back.  My client had $22,000 in medical expenses and was pretty miserable from the time of the accident until the time of the second accident (I was not asking for compensation after the second accident because the doctor could not cleanly differentiate the adverse effect of each accident).

His wife's case was also tried at the same time by a colleague.  She had $16,000 in medical expenses.

Other than forgetting I think my client testified fairly well.  His employer did not like him because he was not able to do his job very well but he couldn't do his job very well because of the injury.  My client's doctor testified quite well.

The defendant testified how the accident happened.

The insurance company for the defendant hired their own medical doctor to review my client's medical records and examine my client.  Of course he would claim that my client injuries were either not related or were fairly minimal.  I subpoenaed that doctor's financial records including his 1099 forms for the past five years and his income taxes.  I was able to show the jury that this doctor received easily $500,000 from insurance companies to testify on their behalf.

At the end of the case I asked that the judge find that the defendant driver was liable as a matter of law for the accident.  The judge granted that request based on the evidence.  The jury was only required to determine the extent of each party's injuries.

The jury awarded $10,000 in medical expenses to my client and $200 in pain and suffering.  For his wife she received $16,000 in medical expenses and only $600 in pain and suffering.

Unfortunately, this result is not unusual and Montgomery County.  I tried to avoid trying the case in Montgomery County in front of a jury but could not.  Everybody lived in Montgomery County and the accident occurred in Montgomery County.  The insurance company knew what Montgomery County juries do and refused to arbitrate the case.  On the morning of trial I asked if they would let the case be tried by a judge but they declined that also.

There is no lesson here.  It is simply worth noting that Montgomery County juries are not usually generous when it comes to whiplash/ soft tissue injuries.

Rape and immigration consequences



I recently resolved a case where the stakes were rather high: incarceration and then deportation.

My client was a lawful United States resident and has been here for many years.  He has an American child.  His girlfriend and mother of the child accused him of raping her.  He was arrested, charged with second-degree rape which is a felony in Maryland and locked up.  Not long after that his girlfriend recanted her story and basically claimed that she accused him of rape because she was jealous that she thought he was seeing someone else.

One might think the case would go away on its own.  Unfortunately my client did not invoke his right to an attorney and the police interrogated him.  The prosecution kept claiming that my client confessed to the rape.  I watched the alleged confession.  If it was a confession it was pretty slim.  Nowhere in the confession did he say "I forced myself upon her" or "I know that I raped her".  At best it was my emotions overcame me.

The physical evidence of rape was also equivocal.  There was some mild injury to the vaginal area which could be consistent with rape or merely rough sex.

The prosecution had a problem.  The victim had recanted and their physical evidence was not particularly strong.  The defendant had a problem, if he was convicted of rape not only would he be a felon, not only would he likely have substantial incarceration, he would thereafter be deported and lose everything he earned in the United States.  I should point out that he has worked here legally for many years at the same job and pays his taxes.

The prosecution wanted a conviction, my client wanted to remain in this country and avoid lengthy incarceration.  The state and the defense were able to resolve this case through a guilty plea to the misdemeanor of second-degree assault.  There needed to be some careful legal maneuvering.  The rape could not simply be amended to second-degree assault.  A brand-new count of assault needed to be added separately so that negative immigration consequences could be avoided.

I am pleased to report that the case resolved, my client is again working and this difficult matter is behind him.  Assuming he lives his life as he always has lived it, within the bounds of the law, there is a possibility that we can even get the misdemeanor assault conviction stricken.

If the client is not a United States citizen and is facing criminal charges, he needs an attorney who can pay attention to the details and provide a vigorous defense so as to minimize not only incarceration but immigration consequences.

Monday, February 18, 2013

Some Tips for Complying with Probation

I can't take credit for the below tips but I think they make a lot of sense. These are tips I would generally give but I found them in one place at a courthouse and I think that somebody on probation would do well to follow them. These tips apply if you are on probation for DWI or driving under the influence of alcohol or for criminal offense or what have you....

TIPS FOR PROBATION
Read and understand your probation order. Do not lose it.
Keep a notebook.
A.    Keep a record of all phone calls, office visits, and appointments (medical,
drug treatment and counseling).
B.    Keep a record of everyone you speak to when visiting or calling (name,
title, date).
C.    Keep a copy of all documents you qive to agents (doctor slips, work slips.
and money order receipts).
Phone calls do not substitute for scheduled appointments.
Do not wait for you agent to contact you. If a month passes, contact the
Department of Parole and Probation.
If you are unable to fulfill a condition of probation, contact your agent before the
deadline.
If you are experiencing any problems, contact [1] Agent [2] Agent's Supervisor [3]
Judge or [4] Attorney.
If you believe you have been violated or will be violated, continue to report.
Pay your cost, fines, or restitution on time. If you are unable to make complete
payments, pay as much as you can.
If you change your residence, notify your agent as soon as possible!
If you pick up new charges, notify your agent immediately. Do not discuss the new
charges.
REMEMBER, YOU ARE ON PROBATION.  IT IS YOUR RESPONSIBILITY TO OBEY THE RULES. PROBATION AGENTS DO NOT GO TO JAIL ...YOU DO!!!

Wednesday, February 13, 2013

Drug Dealers Can Be Liable for Civil Damages in Maryland

Maryland provides statutory law allowing the families of victims who overdose and die from drugs to bring a civil action against the drug dealer. In Courts and Judicial Proceedings 3-1601 etc. the Gen. assembly provides that "a civil action for damages for the death of an individual caused by the individual's use of a controlled dangerous substance may be brought under this subtitle by a parent, legal guardian, child, spouse or sibling of the individual." The plaintiff must prove that the controlled dangerous substance was manufactured, distributed, dispensed, brought into or transported in the state by the defendant drug dealer and was actually used by and was the proximate cause of the death individual.

The Gen. assembly went further.  Under the common law the drug dealer normally could argue that the victim assumed the risk of their injuries or was contributorily negligent. Section 3-1607 specifically prohibits that.




Reduced Suspension at the Maryland Motor Vehicle Administration

My client stopped on Interstate 270 because he had a flat tire. The trooper came up from behind and investigated. The trooper testified that my client had an odor of alcohol and could not remember how my client did on the field sobriety tests. My client gave a breath test which indicated .08 blood alcohol content. The trooper confiscated my client's Maryland license but forgot to give him the temporary license (as is required by law).

At the motor vehicle administration hearing in front of the administrative law judge I argued that my client's due process rights to a hearing before the government confiscated his property had been violated. More specifically, the state of Maryland through the trooper took my client's license to drive (even though it was an oversight, he just forgot to give it to him) without a hearing.

I further argued that the trooper did not have reasonable grounds to believe that my client was operating a vehicle under the influence of alcohol based on merely an odor of alcohol and unknown field sobriety tests.

Unfortunately, the judge did not find that my client had been deprived of his property (interest in keeping his privilege to drive) without due process. The judge argued that my client's license was not suspended even though the officer never returned the license. I argued that his license may not have been suspended but for him to operate a motor vehicle without a license is a crime in Maryland and he therefore suffered prejudice and no action should be taken. The judge rejected that argument claiming that my client was only prejudiced for one day and consequently she would give him credit towards his suspension.

As to the lack of reasonable grounds the judge found that at least a moderate odor of alcohol is sufficient for there to be reasonable grounds for the officer to request that a breath test be taken.

Based on the judge's findings the maximum suspension my client could have would be 45 days. I argued to the judge that if she was willing to let one of the days go let 30 of the days go and only impose a 15 day suspension. Based on my client's excellent driving record, the fact that he had completed an alcohol education course and because the state of Maryland did make a mistake by confiscating his permanent license and not handing him a temporary license the judge reduced the suspension for 30 days to include work purposes, medical purposes, education purposes, and alcohol treatment purposes.

Even something as mundane and everyday as drinking and driving involves principles of constitutional law, statutory law, case law and even regulations. Through hard work and persistence I was able to at least reduce the sting of the suspended license for my client.

Wednesday, February 6, 2013

Ignition Interlock and the Maryland Motor Vehicle Administration

Some months ago my client accepted the ignition interlock alcohol detection device as an alternative to out right suspension of his driving license. He had an old car in not particularly good condition and other problems.

Ignition interlock is a device you put on to your car which requires you to submit a breath sample prior to starting the car and often will ask for a test while the car is running. When you accept ignition interlock you further accept a substantial list of rules which you must follow or you will be found in violation. In the state of Maryland, if you have more than one violation per month over at least four months you will be terminated from the program. My understanding is that if you have several violations in one month that will only count as one violation in that month. The point is, even one violation per month for more than three months will terminate you and your license will be suspended.

In my case my client was alleged to have committed the following violations:

Power disconnect
breath test in excess of .02 blood alcohol content
rolling test refusal

The motor vehicle administration claimed that he had four months where he had violations and they were attempting to suspend his license for six months.

We went to the hearing armed with facts to challenge some of those allegations.

At the motor vehicle administration we were able to refute the rolling test refusal claim. A rolling test refusal is when you are driving along and the ignition interlock alerts you that you need to provide a breath sample. He had three such violations. They give you the date and the time of the violation.

On one of violations we were able to establish that it was a single violation and my client had the radio on so loud he could not hear the ignition interlock requesting that he provide a sample. We argued that there was only one such request and he just could not hear it.

On the second rolling test refusal we were able to establish through auto shop records that the client's car was in the auto shop at the time of the rolling test refusal. We had an invoice from the repair shop stating the date and the time that the car was with them.

On the third rolling test refusal we were able to establish that the client had locked himself out of the car and had summoned AAA. We had a letter from AAA indicating the date and time that they were providing the service.

As to the power disconnect we had evidence from a car mechanic which stated that a low battery and a bad battery connection can interfere with proper functioning of the ignition interlock.

We were not able to refute the breath test findings.

Nonetheless, because the motor vehicle administration was not able to prove more than three allegations the judge found in our favor and declined to suspend my clients license.

If you are having trouble with the ignition interlock and the motor vehicle administration wants to suspend your license, contact me and I'll be happy to help you.

Obtaining an Order of Protection in the District Of Columbia

domestic violence is a serious problem and it crosses all barriers of age and gender and socioeconomic status. Relief is available in Washington DC.

If you are in fear you should obtain an order of protection. A civil protection order is a Court order by a judge which can last up to one year which usually prohibits the abuser from contacting the victim. The civil protection order is delivered by an officer to the abuser. This is a court order. If the abuser violates the court order he can be incarcerated and charged separately with additional crimes. In the District of Columbia you can obtain a civil protection order at the Domestic Violence Intake Center located as follows:

DC Superior Court
Domestic Violence Intake Center
room 4235
500 Indiana Ave. NW.
Washington DC
202-879-0152
also normal business hours

Domestic Violence Intake Center
Suite 311
1328 Southern Ave. SE.
Washington DC
202-561-3000
hours of operation are 8:30 AM through 3:30 PM

If the situation requires immediate attention you need to contact the police at their emergency number 911

If you need to get out the following provide shelter, outlines and counseling:

House of Ruth 202-347-2777

My Sister's Place 202-529-5991




Sunday, January 13, 2013

Use of Medical Marijuana More Liberalized in Maryland

The general assembly has expanded the defense of medical use for marijuana.  Maryland certainly has not legalized the use of marijuana but it has acknowledged that the possession of very small quantities of marijuana for medical use should be taken into consideration by the courts.

More specifically, in a prosecution for the use of marijuana, the defendant may introduce and the court shall consider as a mitigating factor any evidence of medical necessity.  This comes directly from the statute, MD Code Crim. Law. 5-601 Possessing or administering controlled dangerous substance (Maryland Code (2012 Edition).  A mitigating factor is not a defense but if the court finds that there is medical necessity, the maximum punishment upon conviction is a $100 fine.

The general assembly went further and now provides an affirmative defense for the possession of marijuana which states as follows, "(iii) 1. In a prosecution for the use or possession of marijuana under this section, it is an affirmative defense that the defendant used or possessed marijuana because:

A. the defendant has a debilitating medical condition that has been diagnosed by a physician with whom the defendant has a bona fide physician-patient relationship;

B. the debilitating medical condition is severe and resistant to conventional medicine; and

C. marijuana is likely to provide the defendant with therapeutic or palliative relief from the debilitating medical condition.

2. The affirmative defense may not be used if the defendant was:

A. using marijuana in a public place; or

B. in possession of more than 1 ounce of marijuana."

Clearly the use and possession of small amounts of marijuana is not legal in the state of Maryland but for the person who is sufficiently unfortunate to have a debilitating medical condition which is severe and resistant to conventional medicine and marijuana is likely to provide relief then at least the patient has access to what was hereto for illegal relief.  That being said, even the very sick can be arrested, prosecuted and go through the difficulty of a trial with the need to provide a somewhat difficult affirmative defense.  In short, the general assembly has opened the door for the use of small amounts of medical marijuana but clearly have not opened the floodgates.  Do not use or possessed marijuana unless you are willing to suffer through a prosecution and trial.

Driving without a License in Maryland

Defending driving without a license in Maryland has become more difficult.  Several years ago Maryland became one of the last states to prohibit illegal immigrants from obtaining valid Maryland licenses.  Put another way, illegal immigrants could get Maryland licenses.  Several years ago the motor vehicle administration required applicants for licenses to prove legal resident status.

The practical result of this was that people in this country without proper documentation could not obtain valid licenses to drive.  They still had their work obligations or school obligations but could no longer legally drive.  Some people chose to deliberately break the law and either out of necessity or some other reason would drive without a license.

When they were pulled over they would be charged at least with violation of Transportation Article 16-101 (a) driving without a license.  Although it is a misdemeanor punishable with up to 60 days in jail and a $500 fine for a first offense I have seen individuals actually deported from the United States for violating the statute.

The driving without a license statute had several parts.  The first part was a prohibition that you could not drive without a license.  A separate part provided many reasons why you could drive without a Maryland license while in Maryland.  Some of the reasons included fairly sophisticated excuses such as you were a congressman or senator from another state.  Some of the reasons were more mundane such as you were a traveler from another country just visiting or you were in the service and your military installation was in Maryland or you are a student at a Maryland school and simply from another state.  I would argue to the court that the burden of proving the crime is upon the state and the state has the burden of not only proving that the person did not have a license, they needed to negate all of the license exceptions.

In the case of  Tyrone Smith Versus State 40 A.3d 428, 425 Md. 292 (2012) the Court Of Appeals for Maryland, the state's highest court, held that the state only need prove that the defendant did not have a valid license.  The other parts of the statute were affirmative defenses that the defense must raise in their own case.

I have yet to find a client who could legitimately raise the affirmative defense.  By definition an illegal alien cannot hold political office, cannot properly serve in the Armed Forces, etc.

Even though it has become more difficult to defend your attorney can still make a difference.  He can put the state to the test and by having a reputation for taking matters to trial the state might be more inclined to work out a favorable disposition not involving any jail time and perhaps only paying the underlying tickets such as a speeding ticket or a stop sign ticket.