Wednesday, December 3, 2014

Ignition Interlock and False Positive Alcohol Readings

I recently defended a violation of probation case for drunk driving.  As part of the probation my client was ordered to enroll in the ignition interlock program.

My client was doing fine on the ignition interlock program for almost 3 years until one dayhe became very ill.  He was ill all day vomiting on frequent occasions.

Unfortunately he needed to go out for a little while to run an errand.shortly before the air and he had thrown up.  After throwing up he drink some orange juice to clean the taste out of his mouth.

When he started the car he needed to blow into the ignition interlock.  It registered .028  blood-alcohol content. The car would not start.  He waited 5 min. and gave another breath sample and this time it was .019 blood-alcohol content.The car started and he was on his way.

One of the functions of ignition interlock is that the device on the car reports all activity to the ignition interlock people.  The ignition interlock company reports the activity to the probation agent.  The probation agent received the report of the interlock device.

Based on this report the agent filed a petition for violation of probation. My client was facing 60 days in jail.

My client advised that he had not been drinking since she had been put on probation.  He was living a clean and sober life.  I had a witness who had been with my client all day and could confirm that he was not drinking and that indeed he was very ill.

More importantly, as it turns out, I researched the code of Maryland regulations which regulates implementation and use of the ignition interlock device.  In the code of Maryland regulations it advises that if a participant provides a sample of .025 or greater they are in violation of the program, however, if within 5 min. they provide a sample which is less than that amount it is considered a false positive and not a violation.

Additionally, on the website of the ignition interlock provider they had a video introducing the participants to the features and other details of the ignition interlock device.  On the website it clearly stated that the device will detect even molecules of alcohol.  It warned against using mouthwash (which contains alcohol), medicine which contains alcohol before taking the breath test.  Further, it advised that eating right fruit, sweet juices, or even eating pizza shortly before using the ignition interlock device could lead to a false positive.  All of these food items could rapidly ferment in the stomach creating trace amounts of alcohol fleeting to the false positive.

In my case, my client drank some orange juice shortly before taking the test.  Waiting 5 min. allowed that temporary alcohol to dissipate resulting in the dramatically lower number.

At trial the probation agent testified he would have violated my client for any positive reading.  The probation agent had no idea about the code of Maryland regulations which stated that anything under .025 blood alcohol content is not to be considered a violation.  The trial judge noted the huge difference between the two results and found that the device is nowhere near as accurate as a normal breath machine used by law enforcement.  Based on this discrepancy and the code of Maryland regulations the judge found that my client was not in violation of probation.

If you have the ignition interlock device installed on your vehicle and you truly are not drinking and you receive a positive reading for blood-alcohol content, there could be an innocent reason for that.  if you are facing these troubles contact me and I can try to help


Saturday, November 22, 2014

Is This How Homeowners Insurance Normally Works?

Recently I handled a breach of contract in a homeowners insurance case.  The facts seemed straightforward enough but the way the homeowners insurance address the matter seem strange.  The insurance company is one of the major players in the American market.  I don't think I need to name them because I believe it could've been any of the companies.

The facts are as follows.  The homeowner was in his 70s and had been with this company for several decades.  He had owned his home for more than 50 years.  He was a veteran who was honorably discharged and he was retired.  He may have been widowed, he was living alone.  Early on in 2014 he had a heart attack.  That heart attack put him in the hospital for several weeks.  After he was discharged from the hospital he was put into a rehabilitation center for several months.  Early on in the hospital one of his relatives told him that the roof of his home it sprung a leak through the roof.  They promptly contacted his homeowners insurance company.  Several weeks after contact the homeowners insurance contracted with a company to put a tarp over the roof.  By that time the water had entered the home and damage was done and there was a mold problem.

Rather than tackle the problem immediately the homeowners company kept dragging their feet.  The man's relatives would give estimates to the insurance company for the work that needed to be done.  For whatever reason they would not pay the estimates.  The home was uninhabitable.  When the man was done with rehabilitation he had to live in a hotel.  The homeowners insurance was paying that but they would not take care of the home.

Finally in September or October of this year the family hires me because the insurance company wants to take an examination under oath of the homeowner.  An examination under oath is similar to a deposition.  It is normally in the insurance policy that the insured has an obligation to reasonably cooperate with the insurance company.  Why they wanted to take this examination of this man was not clear to me.

After I was hired I contacted the insurance company and requested the full policy.  The policy was approximately 20 pages long.  It seemed like a fairly standard policy in that the first couple of pages provided the benefits that the insured would receive in case of a loss and the next 18 pages systematically limited or withdrew those benefits.  There were sections in the policy about lack of coverage if the home is vacant.  There were other sections about lack of coverage if there was lack of maintenance.

I was thinking that they would deny coverage because the home was vacant and he was in the hospital.  I was thinking they would try to deny coverage because perhaps they would argue that he was negligent in maintaining his roof.  In either case I was thinking this is outrageous.  The man pays premiums for decades and has a heart attack and they're going to claim that he had left his property vacant?  They were going to claim that he was negligent in not maintaining his roof?  His roof was watertight, he had no evidence or notice that there was any problem until the leaking began.  I was thinking this was a wonderful case to present to a jury for breach of contract.  Retired war veteran is insured for decades with his company and it takes them more than one half of the year to resolve the problem.

The attorney that took the examination of the insured was decent.  She was just following orders.  She took her information.  When she was done with the examination I made it quite clear that this was outrageous conduct on behalf of the insurance company.  They kept this man many months out of his home because they were looking for ways to deny coverage.

Ultimately they agreed to pay one of the estimates that the homeowners had provided.  It was one of the medium estimates.

Strangely, along with the check payment came a full release.  The full release made no sense to me.  What if during the repair of the home they discovered more damage from the water leak.  My client would be prohibited from making a further claim.  I spoke to a colleague who regularly represents insurance companies and he advised this is quite normal.  It makes no sense to me.  For a contract to be valid there must be consideration.  Consideration is a legal term meaning there needs to be something of value exchanged during the contract.  The insurance company wasn't giving anything extra, they were providing what they were obligated to provide in exchange for the premiums.  They were obligated to provide coverage.  They provided that coverage.  If there was more damage they should be obligated to pay for the extra damage.  My client was tired of fighting and he accepted the release.

I also argued to the insurance company that they must guarantee that they will not cancel his coverage because of the claim.  It is not unusual in a homeowners claim for the insurance company to cancel the policy after the claim.  What a business.  Can you imagine going to a restaurant, ordering the food, receiving the food and then only being able to look at it.  You can't touch the food.  Kind of like homeowners insurance.  If you use it you lose it.  The insurance company would not guarantee that either.

At least I got my client coverage for his loss.  I wish I could've done more.

I think that the take away from this is read your homeowners policy.  You might have much less coverage than you think you really do.

Wednesday, November 12, 2014

Personal injury and subrogation by health insurance

If you have been injured in an accident which is the fault of another and you have health insurance benefits you should be aware that the legal landscape has been changing in favor of the health insurance companies. This blog is more of a heads up rather than a full legal treatise. In other words, it is putting you on notice rather than fully informing you of your obligations to your health insurance company.

1. If you have Medicare or Medicaid there is a detailed and somewhat cumbersome process in terms of reimbursing any payments that they have made on your behalf. If you do not make proper reimbursements it is possible that they can come after you and also your attorney and perhaps even the insurance company of the tortfeasor.

2. If you are self-insured, and sometimes that is not obvious because it seems like an insurance company is administering the self-insurance plan, you are likely required to pay back 100% of any benefits that they paid. A recent Supreme Court case, U.S. Airways, Inc. v. McCutchen, 2013 WL 1567371 (2013), was a unanimous decision where the Court ruled that equitable principles (e.g., the Made Whole Doctrine and Common Fund Doctrine) cannot override the clear terms of an ERISA Plan requiring reimbursement.   If you have a Employee Retirement Income Security Act health insurance plan, you should consider this when resolving your case.

3. If you are not self-insured and you are health insurance is provided by a payor as defined by the Maryland code which I include for your convenience below, generally the subrogation amount is reduced by the same percentage as the attorney fees. In other words, if the payor is claiming $6000 as subrogation that $6000 would be reduced by the percentage attorneys fees (for arguments sake let's say the attorney receives one third of the award) that would reduce the subrogation claim to $4000. Sometimes a payor will argue that they are controlled by federal law which supersedes state law. As you can see this can get somewhat complicated. You should at least be aware of it.

What I find particularly interesting is that the payor has no obligation to advise you that you have the right to have the subrogation amount reduced. Look at the statute below and you will see that in Maryland, "no obligation to advise.-A payor has no obligation to advise an injured person or an attorney for the injured person of the injured person's right to reduction of the subrogation claim described..." In other words, the insurance company is legally allowed to hide the ball from you.

When choosing your personal injury attorney choose one who is aware of the various pitfalls that are part of the case.



Health Gen. Article Section 19-132 Defines Payor As Follows:

(m) Payor. -- "Payor" means:

(1) A health insurer or nonprofit health service plan that holds a certificate of authority and provides health insurance policies or contracts in the State in accordance with this article or the Insurance Article;

(2) A health maintenance organization that holds a certificate of authority in the State; or

(3) For the purposes of this Part III of this subtitle only, a person that is registered as an administrator under Title 8, Subtitle 3 of the Insurance Article.

Courts and Judicial Proceedings 11-112 addresses reduction in subrogation claims by the health insurance company. More specifically:

(a) "Payor" defined. -- In this section, "payor" has the same meaning stated in § 19-132 of the Health - General Article. 

(b) Applicability of section. --

(1) Except as provided in paragraph (2) of this subsection, this section applies to any right of subrogation under a contract or applicable law for payment of health care benefits or services for an injured person paid or payable by a payor or under any system of self-insurance or indemnification for health care expenses, if the amount of the subrogee's claim as determined under subsection (c) of this section is voluntarily paid by the injured person from the injured person's recovery in a claim for personal injury.

(2) This section does not apply to a voluntary reduction of a subrogation claim by a payor that exceeds the reduction of the subrogation claim described in subsection (c) of this section.

(c) Reduction related to attorney's fees incurred. --

(1) Unless a subrogee files a petition to intervene in the personal injury action and is independently represented by counsel, in a subrogation claim arising out of a claim for personal injury, the amount permitted to be recovered by a payor for health care benefits or services paid or payable on behalf of the injured person shall be reduced by the amount that is determined by:

(i) Subject to paragraph (2) of this subsection, dividing the amount of the total recovery in the claim for personal injury into the total amount of the attorney's fees incurred by the injured person for services rendered in connection with the injured person's claim; and

(ii) Multiplying the result under subparagraph (i) of this paragraph by the amount of the payor's subrogation claim.

(2) The percentage under paragraph (1)(i) of this subsection may not exceed one-third.

(d) No obligation to advise. -- A payor has no obligation to advise an injured person or an attorney for the injured person of the injured person's right to a reduction of the subrogation claim described in subsection (c) of this section.

(e) Certification regarding fees incurred. -- On written request by a payor, an injured person or an attorney for the injured person who demands a reduction of the subrogation claim described in subsection (c) of this section shall provide the payor with a certification by the injured person that states the amount of the attorney's fees incurred by the injured person for services rendered in connection with the injured person's claim.

Tuesday, August 12, 2014

Emergency Vehicle Move over Laws

A law that has been on the books for many years seems to be getting fresh use by the police for pulling over vehicles. Police are using this relatively unknown law to stop vehicles and write tickets and check for drunk driving among other offenses.

In the transportation article section 21-405 it addresses "Operation of Vehicles on Approach of Emergency Vehicles."

Now some parts of this law are obvious and generally everybody knows them.

On the immediate approach of an emergency vehicle using audible and visual signals the driver of every other vehicle shall yield the right-of-way;

On the immediate approach of an emergency vehicle using audible and visual signals the driver of every other vehicle shall immediately move to a position parallel to and close to the curb or edge of the road;

On the immediate approach of an emergency vehicle using audible and visual signals the driver shall stop and stay in this position until the emergency vehicle was passed. (Please note I am paraphrasing the statute and this is not exactly what it says but close enough for this blog post)

What is much more subtle and virtually unknown is what is the driver' s obligation when passing an emergency vehicle which is stopped and displaying any visual signal? The law states exactly as follows:

(1) if practicable and not otherwise prohibited, make a lane change into an available Lane not immediately adjacent to the emergency vehicle with due regard for safety and traffic conditions; or
(2) if the driver of the motor vehicle is unable to make a lane change in accordance with item (1) of this subsection, slow to a reasonable and prudent speed that is safe for existing weather, road, and the vehicular or pedestrian traffic conditions."

In plain English this means if you see a police car or other emergency vehicle on the side of the road with emergency lights on you should have at least one lane of traffic between you and that emergency vehicle or risk being pulled over and given a citation or worse.

The suggested fine is $110 and you get either one or two points for this moving violation. If you do get such a citation remember to ask for a trial (and not a hearing) in order to contest the charge.

Friday, May 9, 2014

New Montgomery County Maryland Marijuana Prosecution Policy

I have news which should be of interest to  persons charged with less than 10 g of marijuana and/or possession of marijuana related paraphernalia in Montgomery County. Please bear in mind I am a private attorney. I am in no way related to the prosecutor's office nor am I a spokesperson for the States Attorney for Montgomery County. Nonetheless, I am in court on a regular basis and it appears that the prosecutor's office has taken a new approach to the prosecution of "personal use" marijuana crimes.

It appears that in exchange for a payment of $100 to a general fund the prosecution is dismissing the cases outright. I am not saying this happens in every case. I have no idea what happens if the defendant has prior criminal contacts or convictions in general or even prior marijuana contacts but I can say that I was observing universally that in exchange for a $100 payment made on the trial date the prosecution was entering the cases nolle prosequi (dismissing the cases). In my mind, from a criminal standpoint, that is excellent news to the person charged.  From a medical standpoint, if they have a marijuana problem (in my opinion it is not necessarily a safe drug as many would like to believe) then they are not getting any treatment for the drug use.  From a criminal defense attorney's point of view it substantially reduces one area of income generation. I believe I would be hard-pressed to tell a client to hire me even if the state has a weak case and my client has a very strong defense against the marijuana charge. There is always risk a trial. Why not just pay the $100 and the case gets dropped and the defendant can immediately request expungement of the record.

I will update this post as my knowledge and experience of this situation develops.


Monday, April 28, 2014

Pedestrian Settles Case against the Driver That Struck Her and Her Own Insurance Company



It was a beautiful springlike day and my client was leaving Temple services in Washington DC. She was crossing the street in the crosswalk. Unknown to her a car was approaching and the driver was apparently blinded by the glare of the bright sunlight. He never saw her and struck her putting her on the hood and her face against the windshield. I am thankful that she was not killed or maimed but she did break her nose. She was taken to the hospital and stabilized.

Unfortunately the broken nose was sufficiently bad that it required surgery. The surgery went well but was painful. Moreover, my client began developing extreme anxiety about being in a car and around cars. Whenever she would have a close encounter, near accident experience, it would basically paralyze her from terror. She sought counseling for this.

Of course we made a claim against the driver of the vehicle. Unfortunately, the policy limits on his insurance were minimal. My client was just a pedestrian and had no insurance of her own. Or did she? My client was extremely helpful and we began researching what insurance might be available to her. We were able to determine that she was still on a policy of insurance with her parents and that policy was way beyond minimum limits.

We made a claim against her underinsured motorist coverage. Her company acknowledged that they would provide coverage but they significantly undervalued the claim. Rather than protracted and uncertain litigation I suggested that we try mediation. Her insurance company suggested several mediators. I did not counter with my own mediators because I wanted this to work out. My reasoning was that they would more likely listen to the advice of a neutral mediator that they selected over one but I selected. We were able to agree on the mediator and went forward.

My client had medical expenses of approximately $19,000, obviously some initial pain and suffering from the injuries, mental stress from the accident and potential long-term problems such as increased risk of sinus infection. The mediator was very able and persuasive to both sides. The mediator painted a real picture of the benefits and risks of not resolving the case. The defendant clearly ran down my client in the crosswalk. My client, from outward appearances, looked just fine. The driver did not intend to run down my client. My client was a very sympathetic and well spoken person whom I believe a jury would like very much.

We were able to resolve the case to the satisfaction of my client.

Even though we were done with the mediation I was not done with the case. There is the matter of the competing releases. A release is a contract wherein you forever give up your right to make a claim against the released party. In this case there were two released parties and two releases. The driver of the car sent a release basically stating that once my client signed that release it would prevent her from making claims against anybody in the world. Her insurance company sent a release basically stating that once she signed that release it would release them and everybody else in the world from any claims. Clearly these releases contradicted the mediation agreement. Rather than have my client simply sign the releases I added language making it very clear that she was settling with both parties simultaneously. Further, there was still the matter of reimbursing her health insurance. Most health insurance contracts will have a subrogation clause. In other words, if the health insurance pays out benefits and a third party is involved that caused the injury and pays money through judgment or settlement, the health insurance company gets their money back. In this particular case I was able to negotiate a substantial reduction from the claimed health insurance which put more money into my clients pocket.

When you are involved in an accident remember to consider additional insurance possibilities.  Considering the mediator is critical. I have been practicing in the Rockville area since 1986 and I knew the mediators that the insurance company provided. I picked the mediator that I believe would be most beneficial to my client and I believe that the results speak for themselves.

Section 8 Housing Tenant Defense

A tenant came by recently asking me to defend her from the landlord who claimed that she was a tenant in breach of lease. The tenant was a very nice woman. She was a mother of several children. She was disabled. She was living in a Housing and Urban Development subsidized rent program. She had been in this home for over five years. This is basically a program sponsored by the federal government wherein in exchange for subsidized rent the lease has certain unusual but powerful restrictions. Basically, a tenancy can be terminated could be for the following reasons:

Drug-related criminal activity engaged in work on or near the premises, by any tenant, household member, or guest, and any such activity engaged in or on the premises by any other person under the tenant's control;

Determination made by the landlord that a household member is illegally using a drug;

Determination made by the landlord that a pattern of illegal use of a drug interferes with the health, safety, or right to peaceful enjoyment of the premises by the residence;

Criminal activity by tenant, any member of the tenant' s household, a guest or another person under the tenant's control;

(a) that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents (including property management staff residing on the premises); or

(b) that threatens the health, safety, or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity of the premises;

If the tenant is fleeing to avoid prosecution, or custody or confinement after conviction, for crime, or attempt to commit a crime, that is a felony under the laws of the place from which the individual fleas, or that in the case of the state of New Jersey, is a high misdemeanor;

If the tenant is violating a condition of probation or parole under federal or state law;

Determination made by the landlord that household members abuse or pattern of abuse of alcohol threatens the health, safety, or right to peaceful enjoyment of the premises by other residents;

If the landlord determines that the tenant, any member of the tenants household, a guest or another person under the tenant's control as engaged in the criminal activity, regardless of whether the tenant, any member of the tenants household, a guest or another person under the tenant's control has been arrested or convicted for such activity.

This is in a model lease drafted by the HUD program. If you look at it you will see that virtually any criminal activity is grounds for eviction. This is not an area of law where I specialize but I did a little research and there is the Supreme Court case of HUD versus Rucker which I summarize below:

535 U.S. 125

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
v.
RUCKER ET AL.

No. 00-1770.

Supreme Court of the United States.

Argued February 19, 2002.

Decided March 26, 2002.*
        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

        Title 42 U. S. C. § 1437d(l)(6) provides that each "public housing agency shall utilize leases ... provid[ing] that ... any drug-related criminal activity on or off [federally assisted low-income housing] premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy." Respondents are four such tenants of the Oakland Housing Authority (OHA). Paragraph 9(m) of their leases obligates them to "assure that the tenant, any member of the household, a guest, or another person under the tenant's control, shall not engage in ... any drug-related criminal activity on or near the premises." Pursuant to United States Department of Housing and Urban Development (HUD) regulations authorizing local public housing authorities to evict for drug-related activity even if the tenant did not know, could not foresee, or could not control behavior by other occupants, OHA instituted state-court eviction proceedings against respondents, alleging violations of lease paragraph 9(m) by a member of each tenant's household or a guest. Respondents filed federal actions against HUD, OHA, and OHA's director, arguing that § 1437d(l)(6) does not require lease terms authorizing the eviction of so-called "innocent" tenants, and, in the alternative, that if it does, the statute is unconstitutional. The District Court's issuance of a preliminary injunction against OHA was affirmed by the en banc Ninth Circuit, which held that HUD's interpretation permitting the eviction of so-called "innocent" tenants is inconsistent with congressional intent and must be rejected under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843.

        Held: Section 1437d(l)(6)'s plain language unambiguously requires lease terms that give local public housing authorities the discretion to terminate the lease of a tenant when a member of the household or a guest engages in drug-related activity, regardless of whether the tenant knew, or should have known, of the drug-related activity. Congress' decision

Page 126

not to impose any qualification in the statute, combined with its use of the term "any" to modify "drug-related criminal activity," precludes any knowledge requirement. See United States v. Monsanto, 491 U. S. 600, 609. Because "any" has an expansive meaning — i. e., "one or some indiscriminately of whatever kind," United States v. Gonzales, 520 U. S. 1, 5 — any drug-related activity engaged in by the specified persons is grounds for termination, not just drug-related activity that the tenant knew, or should have known, about. The Ninth Circuit's ruling that "under the tenant's control" modifies not just "other person," but also "member of the tenant's household" and "guest," runs counter to basic grammar rules and would result in a nonsensical reading. Rather, HUD offers a convincing explanation for the grammatical imperative that "under the tenant's control" modifies only "other person": By "control," the statute means control in the sense that the tenant has permitted access to the premises. Implicit in the terms "household member" or "guest" is that access to the premises has been granted by the tenant. Section 1437d(l)(6)'s unambiguous text is reinforced by comparing it to 21 U. S. C. § 881(a)(7), which subjects all leasehold interests to civil forfeiture when used to commit drug-related criminal activities, but expressly exempts tenants who had no knowledge of the activity, thereby demonstrating that Congress knows exactly how to provide an "innocent owner" defense. It did not provide one in § 1437d(l)(6). Given that Congress has directly spoken to the precise question at issue, Chevron, supra, at 842, other considerations with which the Ninth Circuit attempted to bolster its holding are unavailing, including the legislative history, the erroneous conclusion that the plain reading of the statute leads to absurd results, the canon of constitutional avoidance, and reliance on inapposite decisions of this Court to cast doubt on § 1437d(l)(6)'s constitutionality under the Due Process Clause. Pp. 130-136.

        237 F. 3d 1113, reversed and remanded.

In the above case apparently the tenants may have been completely innocent, unknowing of the problems brought on by drug users on their premises and the tenants may have been completely disabled to boot. Regardless, the Supreme Court held that the language was proper and the right of the landlord to have this type of extreme authority was necessary to promote the peace and proper enjoyment of the property.

In my case the allegations were that one of the tenants was charged with serious allegations including illegal possession of a handgun, possession with intent to distribute many pounds of marijuana. The allegations were that the police stopped a vehicle wherein the tenant's child was a passenger. The driver admitted to having some drugs upon him. The police searched the trunk and there were several pounds of marijuana. The police searched the glove box and there was a handgun. The passenger was charged with the serious crimes but upon review the prosecution decided they did not have sufficient evidence to prove that this passenger knew about any of these seriously illegal items. The cases were either dropped or prosecution was diverted. Regardless, the landlord found out about the charges and as you can see above a conviction is not necessary.

The landlord brought a suit to evict the tenant. I defended the claim arguing that the landlord was unable to prove that the plantlike substance that was found was marijuana. Landlord did not bring the chemist who had analyzed the plantlike substance and concluded it was marijuana. That probably did not carry the day. What did carry the day ultimately was the technical argument that prior to initiating eviction proceedings the landlord is required to notify the tenant and advised the tenant that a meeting is required between the tenant and landlord to further discuss the eviction at the tenant's option. In this case the landlord did notify the tenant and the tenant requested such a meeting in writing immediately. The landlord never complied with this request and the judge ultimately dismissed the case for failure to comply with the procedural requirements of a lease termination.

I would like to think that the landlord cannot come back on the same claim because in my mind we had a full hearing on the merits and a decision was made. We will see what happens.

Meanwhile, I advised my client to make certain that anybody on her premises or uses her home stay away from any form of crime anywhere. The way I read the lease, if somebody lives in her home and is smoking marijuana in Oklahoma, that would be grounds for eviction in the state of Maryland. Bottom line, if you are in section 8 housing, not only do you need to scrupulously obey criminal laws but anybody else who associates with your home must also.

Monday, March 10, 2014

Five point speeding ticket eliminated



My client made the unfortunate choice of speeding in excess of 90 mi./h while on the capital Beltway. He made the further unfortunate choice of having tinted windows. What was not his choice but his birthright was his skin color. After being stopped in a normal manner for speeding by a Maryland state trooper the trooper rushed up with his hand on his gun but demanding that my client show his hands. My client is a young African-American male. He is also a gainfully employed electrical engineer. He has no criminal history. The trooper took my client license and registration and returned to his unit (police talk for a police vehicle).

My client began keeping track of the time and from the time that he was first stopped and the trooper approached until the time that the trooper came back one half hour elapsed. At that point two other troopers came on the scene. They ordered my client out of the car for safety reasons. My client had a substantial pile of cash which was to be used for purchasing a birthday present. I suspect that based on the cash they thought him to be dangerous. They handcuffed him and began searching his pockets. He objected and told them he did not consent. They began searching his car and again he objected. They did not seem to care. They searched the passenger compartment, the glove compartment, the trunk, the gas cap and underneath the battery under the hood of the car! All the while my client is telling them that he is an engineer and that he goes to the gym. They found absolutely nothing incriminating. They broke the battery cover and a portion of his seat. After approximately one hour from stop to the release they let him on his way with the five points speeding ticket.

He went to court on his own and attempted to put the above information into evidence to alert the judge what was going on in her jurisdiction. My client reports that this fell on deaf ears and he was convicted of the five point offense.

When my client came to me he had appealed the case to the circuit court. I am sympathetic to what happened but it does not negate the speeding offense. The trooper was ready to prove my client's excessive speed. Even my client, should he have chosen to take the stand, would've testified that he was speeding. I did not see how I could win the case even with this egregious treatment of a decent tax paying engineer. I referred my client to the ACLU as well as the NAACP and left the politics out of the case (at least on the record). I negotiated with the prosecutor to reduce the case to a two point offense and if my client completed driver improvement they would strike the conviction and he would have no points. I did advise the prosecutor of the back story. I am not certain if I was able to generate any sympathy for my client.

In front of the judge I spent tops 60 seconds and said very little about the case. The judge did not know the back story but the five points were reduced to zero points.

Although I am satisfied with the results in the traffic case, the fact that "driving while black" is a real situation in Maryland and probably other jurisdictions and does not seem to be improving.

Multiple drunk driving client has charges dropped



I represented a gentleman with two prior convictions for drunk driving. In 2013 he was charged with his third drunk driving as well as driving while revoked, driving while suspended, fraudulent tags, no insurance, failure to produce registration among other traffic charges. Total points would be 12 points and he had exposure, in theory, to several years in jail.

After speaking with my client I reviewed the police alcohol incident report. He was apparently stopped because the police scanner showed that his license plate was suspended. Further investigation after the stop was that the license plate did not go to his vehicle. Further investigation revealed that his license was not only revoked because of points for alcohol convictions but also suspended for failure to pay child support. The officer had my client perform field sobriety test which were not done to his satisfaction. My client took the breath test.

It was important to my client to remain out of jail and win as much as he could. He was the foreman on a work crew and people were relying on him. If he was in jail not only would he likely lose his job but his crew would have problems. He was also a father with four children.

On the trial date I was able to successfully negotiate a guilty plea to one count of driving while suspended for failure to pay a ticket which is a three point offense with a maximum jail sentence of 60 days. My negotiation tactic was to give more jail time to get rid of more charges. This jail time was actually pretty easy jail time. Montgomery County has a weekend work-release program. In that program you show up Saturday morning and work all day and go home. You show up on Sunday morning and work all day and go home. You actually never see the inside of a jail. Each weekend counts for two days. Negotiation was for five weekends.

Based on the successful negotiation my client keeps his job, he only has an additional three points on his driver's license and he does not go to jail.

Tuesday, January 7, 2014

Is Your Lawyer Willing to Try Your Case?

That may seem like a dumb question.  Of course your lawyer should be willing to try your case.  But not all lawyers are willing to go to the mat for their client.  Don't get me wrong, many cases should be settled whether they are civil or criminal.  The facts aren't favorable to the client.  The law is favorable to the other party.  There is too much uncertainty in the outcome and a bad settlement is better than a worse verdict.

Nonetheless, it is my belief that when a client comes to me I look at the merits of a trial first.  In other words, can my client win this case at trial?  I don't initially look at it as can we settle this for a compromise.  Often after my analysis I will tell my client that the facts or the law may be against them and the case is worth settling.  But that is only after a careful analysis.  Even at that point I will tell the client that it is her case and her decision.  I simply make the recommendation.

Case in point, my client was charged with drunk driving.  The police report stated that the police were dispatched to a suspicious parked but running car properly parked on a residential street blaring music.  The officer observed my client behind the wheel (it was daytime) and my client was either unconscious or sleep.  The officer banged on the window for 5 to 10 min., shook the car and could not rouse my client.  The officer took his tactical baton and smashed the passenger window.  Still my client did not wake up.  Finally the officer started shaking my client at which point my client woke up.  The report stated that my client smelled of alcohol and admitted to drinking way too much alcohol and that he admitted that he had totally messed his life up.  Further, there was an ignition interlock device in the car and my client told the officer that he had his friend blow into the device so that the car could be started.  The officer saw a 12 pack of beer in the car.  My client did not do a field sobriety test because of a leg injury.  He refused the breathalyzer test.

When I saw these facts I immediately thought that the case was worth a trial.  The issues I saw were whether my client was in actual physical control of the vehicle (it was my theory of the case that my client was using the vehicle as a shelter and Maryland has recognized that it is better for public safety for a person to "sleep it off in the car" rather than drive away in the car.  It is a limited and narrowly defined exception but it does exist.)  Further there was limited evidence as to my client's intoxication.

On the day of the trial the prosecution offered a reasonable deal dropping the main charge which exposed my client to one year in jail to a charge which exposed my client to only 60 days in jail.  Even though it was a reasonable offer I was still looking at this case as a trial.  My client went to trial and was acquitted of all counts.

In Maryland you can somewhat look up a lawyers court performance.  Google Maryland Judiciary case search and put in the attorney's name.  That will pull up most if not all of the cases that the attorney has had in the past 20 years.  You can look and see whether the attorney tries the cases, as the cases dropped, gets acquittals or just pleads the client guilty.  You want a lawyer that can go to trial if necessary.

My Next Blog Will Be Following a Dog Story

Most of my practice is criminal defense, traffic defense and personal injury.  Nonetheless I do consider myself to be a general practitioner of the law.  Having a general practice by definition means getting involved in unusual fact patterns.

In this particular case my client had acquired a puppy.  She had purchased a puppy, an identification chip was inserted in the puppy, she took the puppy to the vet and was by all rights the proper legal owner of the dog.

She was a new owner of the puppy.  Puppies may be sweet but they really don't have discipline or develop ownership ties.  For whatever reason the puppy wandered away from the home.  My client was incredibly distraught at the loss of the dog and made great efforts to find her puppy.

The dog had the identification chip.  Somebody found the dog and took the dog to the vet.  The vet apparently scanned the dog found the chip and contacted the facility which had inserted the tip.  The facility was in Colorado.  That facility in turn contacted the client who contacted the vet.  The vet asserted privacy rights over the person who brought in the puppy.  In other words, the vet would not tell the owner who brought in the dog.

At this point my client came to me.  Maryland has a fairly broad and comprehensive theft statute.  One possible form of theft is recovering lost property and refusing to return it to the rightful owner.  Maryland considers that theft.

I telephoned the vet and they revealed that they knew the name of the people who brought in the dog but they would not release that name to me citing privacy concerns.  I did not threaten the veterinarian with claims of conspiracy to commit theft.  Rather I worked on the sympathies and advised that the owner was very much interested in getting back the dog.  I found out from the vet that there was a lawyer who is representing the people who found the dog.

I telephoned the lawyer and fully expected not to receive any information.  Frankly I would've done the same thing.  The lawyer has an ethical obligation not to divulge any of his clients secrets and one of the secrets was the identity of the client.  Nonetheless I worked on the lawyer's sympathies.  I did discuss with him later my theory of theft for refusal to return the puppy.  I was hoping that the lawyer might contact his client and that the client would contact me.

Finally I contacted the police in the hope that they would begin a theft investigation and bring legal process so that the veterinarian might be compelled to reveal the people that brought in the dog.

To my client's delight the fact that I was stirring the potcause the people who found the dog to return the dog.

From being hired to getting the dog back  four days or less and three hours of work or less.

It's strange work that somebody has to do it.