Friday, December 11, 2015

Avoiding a DWI Conviction through Proper Preparation

Recently I was retained to represent a young man charged with DWI. Everything about the case was fairly normal except for the breath test. The results were .25 g of alcohol per 210 L of breath. That's almost 4 times the legal limit in Maryland.

Of course my client is presumed innocent unless the prosecution can prove his guilt beyond a reasonable doubt. I look at a DWI case from two perspectives. The legal side, can the prosecution prove their case beyond a reasonable doubt? The human side, what can my client do to mitigate punishment and maybe address a problem if he has one.

From the legal side the paperwork seemed in order. The client was stopped for weaving among several lanes. When he was stopped he showed signs which would give an officer probable cause to arrest for drunk driving. There read him his advice of rights form in Spanish and he appeared to understand them and he took the test. On the trial date they had all the necessary officers present. They had the officer who made the stop, the officer who provided the translation service, they had the breath test technician. The technician had his necessary documents to establish that the breath test machine was functioning properly.

From the human standpoint, I had my client obtain an alcohol evaluation and also participate in Alcoholics Anonymous. Those small reasonable steps were important in obtaining a favorable outcome. It is important that your attorney know who the judges are. Based on that extremely high breath test, there are many judges who would enter a conviction and even quite a few judges who would impose incarceration. I have been around long enough to realize that the particular judge that we drew had a reputation for being more lenient. Based on my experience I concluded we should go forward with a guilty plea. The results were as anticipated, my client received the benefit of probation before judgment (not a conviction under state law), did not receive any points on his license and he did not receive any incarceration. He did receive substantial probation including total abstinence from drinking, some community service, fines and costs, and continued enrollment in his alcohol classes. Nonetheless, nested not have a motor vehicle administration effect on his license and did not jeopardize his liberty.

When selecting your attorney, experience is a factor you should consider.

Successful Automobile Accident Mediation

My clients are successful and intelligent individuals. He is logical and well reasoned. Some years ago he was involved in a significant rear end car accident. Before the accident he and his wife had no back or neck problems. Ever since the accident he has been suffering from back problems. He is a fairly stoic fellow and did not seek abundant medical attention. Specifically he went to the emergency room the day after the accident and received some anti-inflammatory pills. That did not help fully resolve the problem and several weeks later he went back and they recommended some home exercises. That did not help and several months later he went back and they recommended acupuncture treatment and he did that for five sessions. That helped a little bit but not fully. Almost 8 months postaccident he saw an orthopedic surgeon who recommended an MRI. Almost 1 year postaccident he had the MRI and again saw the orthopedic surgeon who recommended he see a specialist surgeon. The specialist surgeon reviewed the MRI saw that there were problems but thought that the risks of surgery outweighed the benefits of the surgery. After that my client went to a chiropractor for a while and this was two years postaccident.

The man had almost $8000 in medical expenses and his wife had almost $800 medical expenses. As I stated, he was well educated, thoughtful, logical and tried to resolve the case on his own. He sent a well written demand letter to the insurance company. He included pictures of the damage to the car, all of his medical expenses, some of the doctors reports. The insurance company offered him $2500 to settle both cases.

He came to me several days before the statute of limitations ran asking for assistance. Other law firms had turned him down. It is a significant risk taking a case several days before the statute of limitations runs. The lawyer may not have the correct name of the defendants, may not include all of the causes of actions, or not have all the facts, or other gaps in information. The point is that everything important must be pled by the running of the statute of limitations for the additional claims are usually barred. My client seem to be at wits and and I wanted to help so I took the case.

I filed a lawsuit and was able to chase down the owner of the car (I have a good process server). I was not able to find the driver because I think he had left the country.

I made an effort to look at the case objectively. Clearly my client was having back problems and he did not have them before the car accident. He clearly deserved compensation for his injuries. On the other hand, the burden is on the plaintiff (my client) to prove his injuries to a jury. He must get evidence together which shows that his injuries were a result of the accident. The problem is that the doctors were not clear in relating his problems to the car accident. My client was also not inclined to pay for the cost of an opinion from the various doctors (it is not unusual for a doctor to charge several hundred dollars or more for a written opinion).

Given these limitations and the fact that the accident happened in Montgomery County it was my opinion that our best results could be had through mediation. I chose someone who was a very experienced insurance defense attorney. I was certain that the insurance company lawyer would agree with that mediator. My hope was that the mediator would help educate my client as to the value of the case (lowering my client's expectations somewhat) and simultaneously putting credible pressure on the insurance company to make a fair settlement.

The mediation took just over two hours. The initial offer that my client received on his own was $2500 for both cases. By the time we were done I was able to obtain a settlement of seven times that original offer for both clients.

In my mind this was a pretty good result. I think the result was based on various factors including my ability to present my client's case in the best light, my reputation in the legal community (I try to be reasonable and make things work out but I am also perfectly willing to try a case), my ability to get along with the defense attorney and the insurance adjuster and finally the choice of the mediator.

If you are hurt in an accident, feel free to contact me and I will do my best to get you maximum value for your case.

Oath of Office of a Police Officer

The oath of office of the police officer is somewhat similar to the oath of office of an attorney. You can compare for yourself:

From the Maryland Constitution:

Section 9. Every person elected, or appointed, to any office of profit or trust, under this Constitution, or under the Laws, made pursuant thereto, shall, before he enters upon the duties of such office, take and subscribe the following oath, or affirmation: I, ..........., do swear, (or affirm, as the case may be,) that I will support the Constitution of the United States; and that I will be faithful and bear true allegiance to the State of Maryland, and support the Constitution and Laws thereof; and that I will, to the best of my skill and judgment, diligently and faithfully, without partiality or prejudice, execute the office of .............., according to the Constitution and Laws of this State, (and, if a Governor, Senator, Member of the House of Delegates, or Judge,) that I will not directly or indirectly, receive the profits or any part of the profits of any other office during the term of my acting as .................. (1977, ch. 681, ratified Nov. 7, 1978.)

I believe that this is the oath that a police officer takes. They are appointed to an office of trust. In my opinion if the police officer take such an oath he or she should at least be somewhat familiar with the Constitution of the United States as well as the Constitution of the state of Maryland.

This observation is relevant because sometimes during trial a question is asked of an officer if he or she is familiar with something as general as the fourth amendment. This will often draw an objection from the prosecution where they claim that the officer is not a lawyer and has no reason to know the laws. I think a proper response is that the officer took a solemn oath to support the Constitution of the United States as well as the Constitution of Maryland. How can the officer support these constitutions if he has no idea of their content? I think it's a fair argument.