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  Not surprisingly his license to drive was revoked and remained revoked for many years.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It is not particularly difficult for a prosecutor to prove that a driver was revoked for trial purposes.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the driver, the driver was on a public highway, that they have the drivers Maryland record which shows that the driver was revoked.  They must also prove that the driver knew that he or she was revoked but that can be established through either an admission by the defendant who would tell the officer they knew they were revoked or through the driving record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.