Recently I represented a very nice mature lady. She was leaving her doctor's office where she had had work done on her knee. While leaving the parking lot she came to a sidewalk which crossed over the driveway leaving the parking lot. A bicyclist came across the sidewalk and there was a collision. The bicyclist got up and either sat close by on the curb or picked up his bicycle and moved a distance away. My client remained at the scene for at least 3 min. in her car. She was in pain and could not get out. The bicyclist did not come over to her even though he was ambulatory. Thereafter she left and her intent was to go to a local grocery store and call the accident in. The telephone was not available at the grocery store and she went home. A witness took down her tag and the police found her at her house. She told her story to the police and they were willing to let the case go with her going to a driver improvement program and no charges being filed.
Apparently the bicyclist had a bit of a history. When I ran his name on the criminal database search available in Maryland, he came back with two pages of criminal charges. He was apparently incensed that this lady did not suffer criminal charges. He contacted the officer many times requesting that he issue a citation and the officer denied that request. He pulled rank and went to the officer's Sgt. who also denied the request. He went to the lieutenant who capitulated and the officer wrote citations against my client.
My client was charged with the following:
1. Failure to yield to a pedestrian in a crosswalk
2. Failure to stop after an accident
These are somewhat serious charges. They carry jail time and of course points on your driving license.
The case was called for trial and everyone showed up. I told the prosecutor not to drop the charges because I was concerned that the bicyclist would go after this prosecutor going all the way up to John McCarthy, the state's attorney for Montgomery County. At trial the state proved that the victim was riding a bicycle in the crosswalk when he was struck. They also proved that my client remained at least 3 min. and probably more than 5 min. stopped at the scene after the accident.
At the close of the state's case I argued to the judge that a bicyclist is not a pedestrian and that is clearly defined in the Maryland code. A pedestrian is somebody who is "afoot" (is a bicyclist somebody who is "abike"?) The judge threw out that charge immediately. I further argued that the state proved in their case that my client did stop after the accident. Under the statute it requires the driver to stop. It does not say how long the driver needs to stop. Arguably, one second is enough. Clearly at least 3 min. is enough. Again the judge threw out the charge.
Not surprisingly, the bicyclist began haranguing the prosecutor and almost needed to be escorted out of the courthouse by the bailiffs.
All that being said, I do not condone driving away after an accident. My client should have been charged with hit and run and failing to provide proper identification and failing to provide assistance. That would've made the case tougher. For whatever reason, she was not charged with the correct crimes and she is acquitted as she should be. If you have an accident, you should remain at the scene, exchange information, give aid and assistance and just be a decent human being.
Thursday, March 3, 2011
Montgomery County public library has many online resources
This is an unusual blog and has nothing to do with legal content but I thought that someone out there might be interested in this powerful resource. The Montgomery County public library website has Consumer Reports as well as many other publications online. If you need to find Consumer Reports online all you need is your library card. I hope that the below directions are understandable. I received them from the librarian and they work for me.
Go to www.MontgomeryCountyMd.gov. At some point it will ask for your library card number, put that in.
Go to the most popular page
click on a-Z electronic resources
click on M
click on Masterfile Premier
Go to the Blue Bar and Click on Publications
in the second search box type in Consumer Reports
click on Consumer Reports
you can search within this publication or each individual year
When you find your general topic look to the left and open up the PDF. You will have the complete article.
Bonus points to the individual who finds the article that describes how to rate a law firm.
Go to www.MontgomeryCountyMd.gov. At some point it will ask for your library card number, put that in.
Go to the most popular page
click on a-Z electronic resources
click on M
click on Masterfile Premier
Go to the Blue Bar and Click on Publications
in the second search box type in Consumer Reports
click on Consumer Reports
you can search within this publication or each individual year
When you find your general topic look to the left and open up the PDF. You will have the complete article.
Bonus points to the individual who finds the article that describes how to rate a law firm.
Saturday, February 19, 2011
Tree Sap Acquits My Client
Sometimes nobody gets it including yours truly. The prosecutor did not get the case, the judge did not get part of the case, I did not get the whole case. My client was charged with theft of a Kawasaki all-terrain vehicle in Charles County. The facts were that the victim had his all-terrain vehicle stolen from his house in February of 2008. In July of 2009 my client along with three other Hispanic males was inside of his van and was parked in a remote area in Charles County. Somebody saw that and called the police because it seemed suspicious. The police came and saw that there were four Hispanic males inside of the van and that there was an ATV in the van also. The officer thought this was suspicious. The officer ordered the men out of the van and ordered them to remove the all-terrain vehicle and began checking the vehicle identification number. Initially, it came back negative-it was not stolen. Not long after that communications contacted the officer and advised that the vehicle was indeed stolen.
My client was charged with theft of the all-terrain vehicle even though the theft had occurred 17 months earlier.
The prosecutor refused to drop the case. The defendants appeared three times in District Court and each time the case was continued for one reason or another. Finally we requested a jury trial. Still the prosecutor would not drop the case. I could not understand how they would prove this case? They provided the discovery information and there was nothing else in it. My client did not admit to stealing the all-terrain vehicle. There were no witnesses who could prove that he stole it from the house. My client had told the police officer that he and his friends had seen deer in the woods and followed the deer into the woods and came upon this vehicle. The vehicle appeared to be abandoned and in a ditch and so they took it. There was no license plate on the vehicle. There was no evidence that the vehicle had recently been driven. The ignition had not been popped.
At trial the owner of the vehicle testified that his vehicle was stolen from his home in February 2008. In July of 2009 he was contacted by the police and he went down to identify his vehicle. He took his keys along. When he saw the vehicle. On cross examination I want to establish that the vehicle was abandoned. The owner admitted that the vehicle was covered in tree sap. The owner admitted that the engine was cool to the touch which would suggest that the vehicle had not recently been started. It was determined that my client and his friends had no riding gear with them-no motorcycle helmets, boots, etc. All of this was consistent with what my client had told the officer that they had found it and it seemed abandoned.
The officer testified that the situation seemed suspicious. I could not figure out how this was suspicious. The license plate on the car was legitimate. My client's driver's license was legitimate. I think what seemed suspicious is that you had four Hispanic men in a van. Strangely, the judge found this to be sufficiently suspicious to allow the officer to further investigate. The judge was troubled with the officer's order to remove the van because the judge could not see how the officer had probable cause at that point.
They called two other witnesses and I do not believe they added anything to the case. One of them lived in the area and I was able to establish that there was a large woods where the ATV was found. The other one I did not even bother cross examining.
After this evidence the state rested.
I did not even have to put on a defense. The judge granted our motion for judgment of acquittal. The evidence was completely consistent with people finding an abandoned vehicle in the woods. He could not see how the state could prove that my client intended to steal the vehicle. There was no evidence that he stole the vehicle. My client was found not guilty of the charge.
After the trial the prosecutor still did not get it. She was arguing to me her theory of the case which had just been completely debunked. I finally did get it, the prosecution had no case and never could make a case.
My client was charged with theft of the all-terrain vehicle even though the theft had occurred 17 months earlier.
The prosecutor refused to drop the case. The defendants appeared three times in District Court and each time the case was continued for one reason or another. Finally we requested a jury trial. Still the prosecutor would not drop the case. I could not understand how they would prove this case? They provided the discovery information and there was nothing else in it. My client did not admit to stealing the all-terrain vehicle. There were no witnesses who could prove that he stole it from the house. My client had told the police officer that he and his friends had seen deer in the woods and followed the deer into the woods and came upon this vehicle. The vehicle appeared to be abandoned and in a ditch and so they took it. There was no license plate on the vehicle. There was no evidence that the vehicle had recently been driven. The ignition had not been popped.
At trial the owner of the vehicle testified that his vehicle was stolen from his home in February 2008. In July of 2009 he was contacted by the police and he went down to identify his vehicle. He took his keys along. When he saw the vehicle. On cross examination I want to establish that the vehicle was abandoned. The owner admitted that the vehicle was covered in tree sap. The owner admitted that the engine was cool to the touch which would suggest that the vehicle had not recently been started. It was determined that my client and his friends had no riding gear with them-no motorcycle helmets, boots, etc. All of this was consistent with what my client had told the officer that they had found it and it seemed abandoned.
The officer testified that the situation seemed suspicious. I could not figure out how this was suspicious. The license plate on the car was legitimate. My client's driver's license was legitimate. I think what seemed suspicious is that you had four Hispanic men in a van. Strangely, the judge found this to be sufficiently suspicious to allow the officer to further investigate. The judge was troubled with the officer's order to remove the van because the judge could not see how the officer had probable cause at that point.
They called two other witnesses and I do not believe they added anything to the case. One of them lived in the area and I was able to establish that there was a large woods where the ATV was found. The other one I did not even bother cross examining.
After this evidence the state rested.
I did not even have to put on a defense. The judge granted our motion for judgment of acquittal. The evidence was completely consistent with people finding an abandoned vehicle in the woods. He could not see how the state could prove that my client intended to steal the vehicle. There was no evidence that he stole the vehicle. My client was found not guilty of the charge.
After the trial the prosecutor still did not get it. She was arguing to me her theory of the case which had just been completely debunked. I finally did get it, the prosecution had no case and never could make a case.
Monday, February 14, 2011
Just because the police officer says you're drunk does not necessarily mean that you are drunk
My client was just acquitted on all charges for drunk driving after a trial on the merits. The police officer stopped my client for speeding. He smelled a strong odor of alcohol, claimed that my client's speech was slurred, his eyes were bloodshot and watery, that he put his foot down five times on the one leg stand test and raised his arms too high and that he took too many steps on the walk and turn test and missed heel to toe. Also my client admitted drinking two shots of alcohol and one beer. The officer was of the opinion that my client was intoxicated.
On cross examination the officer admitted that other than speeding my client was driving the car in a normal manner. My client was able to produce his license from his wallet without any problems. My client communicated accurately with the officer. The officer wasn't positive as to the surface where the Field sobriety tests were done. The officer could not remember if there was anybody else in the car (my client had a very drunk woman in the car who smelled of alcohol). The officer could not remember if he himself lost his balance showing the Field sobriety tests.
We had a witness who stated that he was the DJ at the bar where my client was. He saw my client come in and thought my client was sober. My client was there one hour. When the bar closed my client felt the DJ unload all of his equipment including two 150 pound speakers which were on telescopic stands. My client wrapped up the electrical cables in a neat fashion. My client peeled tape off the floor. My client had no trouble doing these things and left right after that and within five minutes. By the officer. The DJ thought that my client was sober.
My client testified that he had had one shot and had ordered two beers but realized he was on antibiotics and only drink the shot and half of the beer. My client thought that he was sober.
The judge could not find beyond a reasonable doubt that my client was intoxicated or under the influence or even impaired and acquitted him of these charges.
The point is, just because the state claims something is so, does not mean that the trier of fact will believe that beyond a reasonable doubt.
On cross examination the officer admitted that other than speeding my client was driving the car in a normal manner. My client was able to produce his license from his wallet without any problems. My client communicated accurately with the officer. The officer wasn't positive as to the surface where the Field sobriety tests were done. The officer could not remember if there was anybody else in the car (my client had a very drunk woman in the car who smelled of alcohol). The officer could not remember if he himself lost his balance showing the Field sobriety tests.
We had a witness who stated that he was the DJ at the bar where my client was. He saw my client come in and thought my client was sober. My client was there one hour. When the bar closed my client felt the DJ unload all of his equipment including two 150 pound speakers which were on telescopic stands. My client wrapped up the electrical cables in a neat fashion. My client peeled tape off the floor. My client had no trouble doing these things and left right after that and within five minutes. By the officer. The DJ thought that my client was sober.
My client testified that he had had one shot and had ordered two beers but realized he was on antibiotics and only drink the shot and half of the beer. My client thought that he was sober.
The judge could not find beyond a reasonable doubt that my client was intoxicated or under the influence or even impaired and acquitted him of these charges.
The point is, just because the state claims something is so, does not mean that the trier of fact will believe that beyond a reasonable doubt.
Tuesday, January 4, 2011
New Maryland Procedure: Drivers Must Notify the Court after a Moving Violation
As of January 1, 2011 drivers receiving a moving violation in Maryland have a different procedure. In the old days, the court would automatically send them any notice of a court date. This is no longer the case.
Drivers who receive a moving violation ticket must now affirmatively act within 30 days after receiving the ticket by either paying the ticket for requesting a trial date. If they do neither their license will be suspended. They must do one or the other to protect their driving privilege.
Drivers who receive a moving violation ticket must now affirmatively act within 30 days after receiving the ticket by either paying the ticket for requesting a trial date. If they do neither their license will be suspended. They must do one or the other to protect their driving privilege.
Thursday, December 9, 2010
A Good Lawyer Knows the Judge
There is a saying that a good lawyer knows the law but a great lawyer knows the judge. Allow me to toot my own horn.
Recently I represented one of four codefendants in a massive shoplifting spree. All four codefendants had lawyers and all four cases were set on the same trial date. The prosecution offered guilty pleas to two counts of theft and would recommend probation to the judge. Three of the defendants on the advice of their attorneys took these guilty pleas expecting to get probation.
I investigated the evidence further and was very concerned with what this particular judge would do with a shoplifting spree of this nature. The three defendants who were pleading guilty would admit to going through no less than four different stores in a one-hour time span stealing over $1500 worth of merchandise. Even though the prosecution was recommending probation I was concerned that the judge would incarcerate these other defendants. My client was also a green card holder and a felony conviction, which was offered, would have exposed him to immigration consequences including deportation.
Based on my investigation and uneasiness I elected to go to trial. Before my client's trial began the other defendants actually pled guilty in front of the judge and each defendant received either six months in jail or three months in jail and the judge set an appeal bond of $50,000. This basically guaranteed that these defendants would remain in jail while the matter worked its way through the system. I was very pleased not to take the guilty plea on behalf of my client.
Based on the fact that the judge had now heard three guilty pleas and was quite familiar with the "facts" of the case it was decided that this judge might not be able to fairly hear this case. Because we elected a trial we were sent to a different judge for the trial.
In my case my client was charged with six counts of various forms of theft. After the trial my client was acquitted of five of the six counts. On the only count upon which he was convicted in my case, he was sentenced to 30 days of jail which is certainly much better than three months or six months in jail. Further, my client's appeal bond was only $4000 instead of $50,000. Knowing what the judge might do and fighting for my client saved my client a great deal of jail time.
Wednesday, December 8, 2010
False Peace Order Accusation
My client was accused of stalking a stranger. She claimed that my client was following her for approximately 10 minutes at 12:20 PM on November 29 in Silver Spring. She gave a very detailed description of the stalking and harassing activity. She stated further that the next day she saw him at the convenience store and again he was staring at her and bothering her. On cross examination I pinned her down as to exactly the time and place where the original stalking and harassing occurred.
My client testified that he was in a staff meeting at that date and time in College Park. I had his boss and the secretary also testify that he was there. Clearly the judge found in our favor and in his written decision stated that "there was no evidence of anything" that the respondent did. I don't think that the petitioner was mentally unstable or lying but clearly made a case of mistaken identity. It cost my client money, time and potentially reputation.
There may be a mechanism to clear his reputation. If you knew my client's name you could find him on the Maryland Judiciary case search website. My client is an important man with national security clearance. Maryland's Gen. assembly ennacted a statute which took effect on October 1, 2010 providing for sealing or shielding of cases of this nature which result in either dropped charges or a dismissal. If you have a peace order or domestic violence petition against you and it is dismissed or you win in court, you should look into having the case sealed were shielded from public view. I would be happy to assist you.
My client testified that he was in a staff meeting at that date and time in College Park. I had his boss and the secretary also testify that he was there. Clearly the judge found in our favor and in his written decision stated that "there was no evidence of anything" that the respondent did. I don't think that the petitioner was mentally unstable or lying but clearly made a case of mistaken identity. It cost my client money, time and potentially reputation.
There may be a mechanism to clear his reputation. If you knew my client's name you could find him on the Maryland Judiciary case search website. My client is an important man with national security clearance. Maryland's Gen. assembly ennacted a statute which took effect on October 1, 2010 providing for sealing or shielding of cases of this nature which result in either dropped charges or a dismissal. If you have a peace order or domestic violence petition against you and it is dismissed or you win in court, you should look into having the case sealed were shielded from public view. I would be happy to assist you.
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