Bicyclist Cut off by DC Motorist Settles Case

My client is an avid bicyclist. He is used to riding in traffic. On a nice bright Saturday he was pedaling along in Washington DC when a subcompact car made a left turn darting through traffic in front of him. My client tried to stop but could not and struck the side of the car. He fell off damaging his shoulder.

The defendant denied liability. The defendant claimed that there was no contact between my client and the vehicle. There was no crash damage to the side of the car. My client merely lost control of his bicycle and fell off. Further, the defendant claimed that the rotator cuff tear, the injury to the shoulder, which is a very painful injury, had nothing to do with the accident. This injury did require extensive surgery.

I was a bicycle mechanic. I asked to examine the bicycle. I learned that the fork was bent backwards. The fork is one of the weaker parts on the bicycle. The wheel assembly generally absorbs the blow and then bends back the fork which may bend back the frame. In this case, the fork was bent back clearly demonstrating that there was an impact between the bicycle and the car.

The insurance company initially offered $6000 to settle the case. I filed suit on behalf of my client. I took the deposition of the defendant and on the record and under oath forced him to admit that he did not look further up than approximately 15 feet up the road before making the turn. In other words, he turned without looking for the bicyclist. My client was sympathetic and credible in his deposition. We were able to settle his case at over 12 times the original offer.

Lack of courtesy can lose a case

Lack of courtesy can lose a case

I tried a case last week where the police had a search warrant for a house. They knocked on the door at about 6 AM, waited less than 10 seconds, and then used the SWAT team to bang through the door and enter the home. In the home they found women, children, and my client. My client was searched without consent and six bags of marijuana were found upon him. He later on confessed to possessing marijuana.

Things look pretty bad for my client. He was on probation. The police had a warrant signed by a judge. They found the marijuana on him. He confessed that the marijuana was his. It sounds like a certain conviction.

The fourth amendment to the Constitution of the United States reads as follows, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

I argued to the judge that the search was unreasonable. Yes the police had a warrant. But under the common law of Maryland, the police are generally required to knock and give a reasonable amount of time before they enter a home. There are of course exceptions to this general rule, but this case did not fit into that exception. The court agreed with the argument, found the search to be unreasonable, consequently all evidence including the marijuana and the confession was suppressed and my client was found not guilty.

Had the police been courteous and waited a reasonable amount of time for someone to answer the door, this would not have happened.

Legal Poetry

John W Davis (April 13, 1873 – March 24, 1955) was an American politician, diplomat and lawyer. He served as a United States Representative from West Virginia (1911–1913), then as Solicitor General of the United States and U.S. Ambassador to the UK under President Woodrow Wilson. Over a 60-year legal career, he argued 140 cases before the U.S. Supreme Court.

Davis is best known as the Democratic Party nominee for President of the United States during the 1924 presidential election, losing to Republican incumbent Calvin Coolidge. Obviously he had a long and distinguished career. I like him for a poem that he wrote:

The lawyer's a man of sorrow, and acquainted with grief;

among all the sinners, he's considered the chief.

His friends all admire him when he conquers for them;

when he chances to lose, they're quick to condemn.

They say, "he is bought!" If he loses a case;

they say, "ah! He is crooked!" If he wins in the race.

If he charges big fees, they say he's a grafter;

if he charges small fees, "he's not worth going after."

If he joins the church, "it's for an effect;"

if he doesn't join, "he's as wicked as heck."

But here's one fact we all must admit:

when we get into trouble, our lawyer is IT!

With thanks to Jacob a Stein for making me aware of this poem.

Conflicting police testimony leads to an acquittal

My client and his girlfriend ran out of bus money and called a friend to pick them up in the middle of the night. The friend picked them up and was stopped for weaving outside of his lane and almost striking the police officer's vehicle. The officers approached on both sides of the defendant's vehicle. My client was in the passenger seat and with the help of his flashlight the officer immediately noticed flakes of marijuana on his jacket. Everybody was taken out of the car and the car was searched and half an ounce of marijuana was found in a bag in the car as well as cigars allegedly used for smoking marijuana.

At trial I sequestered all the witnesses which means that they could not hear what the other one said on the stand. The officer that came up on the driver side testified that the 11 g of marijuana was found under the driver seat in a plastic bag. The cigar paraphernalia was found in front of the passenger seat where my client was sitting. This was consistent with his police report. Nowhere in his report did it state that there was a smell of marijuana. Nowhere in his report did it state that the backseat passenger claimed ownership of the marijuana. The officer testified that he could smell marijuana from the car and that it smelt of freshly burned, perhaps burned in the last hour or so. The officer also testified that there were tobacco crumbs on the floorboard in front of the passenger.

The officer who came on the passenger side where my client was sitting testified that the other officer found the cigars and that the package was open and that at least two of the cigars had been hollowed out to receive marijuana. He also testified that the 11 g of marijuana was found on the passenger side of the vehicle. Dissemination he admitted that he was not the one who found the marijuana and that he was mistaken and that the marijuana was found under the driver seat. I showed him the evidence of the cigars. The cigar package was completely sealed. It had never been opened and none of the cigars were taken apart.

My client testified that he had called his friend to pick him up and borrowed his friend's jacket. He put the jacket on in the car. He did not notice that there was any marijuana on it. The marijuana was not his and he had no idea that it was in the car.

At the close of the evidence the judge had trouble with the testimony from the police. The officer testified that the cigar package was open and that the cigars had been tampered with. The evidence clearly showed that the package was sealed and the cigars were intact. The person in the back claimed ownership of the marijuana. It was not clear whether the marijuana was under the driver seat or under the passenger seat. It was not clear about the smell of marijuana. It was not clear whether there was a burnt marijuana cigarette in my client's pocket. The judge had a reasonable doubt in my client was acquitted.

With respect, I do not believe that the police officers were as ready as they could have been. They left many important facts out of the report which I brought to light. In other words, they testified to things that were not contained in the report. These were important matters such as the officer who had my client claimed that there was the remains of the marijuana cigarette in the jacket. That was nowhere in the report. They also tried to testify what my client said. That was nowhere in the report and because they did not turn over this information prior to trial the judge excluded using that information. They had a videotape of what happened that the arrest scene but that was not used by the prosecution. Experienced cross examination brought out the conflicts and problems in the state's case and led to an acquittal.

Drunk Sleeping Driver Wins at Motor Vehicle Administration

After becoming intoxicated my client talked to the designated driver and told the designated driver that she was going to go into the car and wait for him to drive her home. She entered her legally parked car, started the car to keep warm and was listening to the radio. She fell asleep and the next thing that she noticed was the police officer knocking on her window. She failed field sobriety tests and her breath test was .12 blood-alcohol content. The officer charged her with drunk driving and took her Maryland license.

She hired me and we requested a hearing at the motor vehicle administration to avoid a license suspension. The above facts were revealed at the motor vehicle administration. My client further testified that she had told the officer that she was waiting for her designated driver and she had no intent of driving home. Even though she was in the car, behind the steering wheel, the engine was running, the radio was on, the headlights were on, and she was legally under the influence of alcohol, the motor vehicle administration judge sided with our position, which was supported by the case law, that she was merely using the vehicle as a shelter and therefore she was not driving the vehicle as defined under Maryland law. The judge credited her honesty with the police officer-she had admitted to drinking many specific drinks. Based on that honesty the judge believed my client at the hearing.

The judge took no action, my client was able to keep her license.

Cross Examination Reveals Lies at a Protective Order Hearing

Washington, DC Protective Order Hearing-Judge Keeps an Open Mind

My client was recently served with a notice of a protective order hearing in Washington, DC. The complaint was vague-in it it claimed he made threats of violence, was harassing the victim, was stalking her, caused her to lose her job. There was not a single specific fact alleged. He received a notice the day before the hearing. He told me he had never done anything wrong with this victim and had no idea what it was all about. He did not send her nasty e-mails or leave awful voice messages which could be used against him, he told me. He had no witnesses because he did not know what she was alleging. He gave me some background on the victim and with that we went the next day to the trial.

The case was called and the victim testified that my client had called her on the telephone approximately 17 times in approximately 10 days. She had taken pictures of her cell phone showing his number on the cell phone. I could tell the judge was getting annoyed at my client.

After that she claimed that while she was at church with her cousin and her baby her cousin went outside with the baby. My client was there and pointed a gun at the baby and threatened the cousin. At this point, the judge became alarmed and called on security. Things were not looking good for my client. The victim testified further that she spoke with my client's wife. His wife told the victim that she had better not pursue the felony gun assault charges because my client threatened to kill his wife if the victim pursued the matter. His wife and the victim were sisters.


The victim then called on her mother who testified that she went down to my client' s place of business. My client went outside with the mother and pulled a gun on the mother and pointed it at her and threatened her. The mother testified that a police car drove by and then my client ran away.

One of the greatest writers on evidence, John Henry Wigmore stated, “Cross-examination is the greatest legal engine ever invented for the discovery of truth." On cross examination I used the police report that the victim brought against her. The victim testified that she had identified my client to the police. She had given the police his name, she had spelled his unusual name. The police report was quite detailed. Nowhere on the police report did it include his name. Further, on hard questioning, it appeared ridiculous that she would drop the charges especially when he is making death threats against his own wife. It would've been much more logical for both of them to go to the police at that point and have him arrested immediately. The victim admitted on cross examination that she was convicted of felony possession with intent to distribute drugs. Several months earlier she admitted to being involved in a custody dispute and admitted that the defendant testified at the dispute. She testified that his testimony was not against her. In that dispute she lost legal custody of her child.

On cross examination the mother also lost all credibility. That the mother would not go to the police immediately after being threatened with the gun when the police had just rolled by was preposterous.

I put my client on the stand and he explained that he shared the cell phone with his wife who was the sister of the victim. He explained he never threatened anybody with a gun. At the time that the threat was made he was at work. He testified that at the custody dispute he told the judge that the victim had acted inappropriately as a parent to her children.

At the end of the case the judge found the mother to be completely incredible and gave no weight to what the victim had said. The felony conviction discredited her. Her testimony about the custody battle discredit her. He dismissed the order against my client.

I was pleased that the judge was able to keep an open mind after he had ordered and security. My client, decent man, was able to survive lies and false accusations due to the power of cross examination.

Maryland Motor Vehicle Administration Hearings

Recently motor vehicle administration hearings before the Office of Administrative Hearings have advanced technologically. Instead of a paper file, the administrative law judge will present the evidence via computer screen. Besides saving trees, there is an upside because you can magnify the documents. Often the documents are hard to read at best and illegible at worst.

An additional upside is that they now appear to have printouts of their findings. The printouts are much easier to read but more importantly, they give you of the issues that are before the judge. Below is a sample computer printout. Please call me if I can give you advice on any motor vehicle administration hearings that are upcoming. Remember that usually there is a very short amount of time in which to request a hearing once you have notice of a problem. Call me to discuss this.

Licensee 04-12-2011
drivers license number DOT-APS-case number
FINDINGS OF FACT - APS
After considering the evidence and testimony presented in this case, I find by a preponderance of the evidence the following facts:
1) The police officer who stopped or detained the Licensee had reasonable grounds to believe that Licensee was driving or attempting to drive a motor vehicle while under the influence of or impaired by alcohol, drugs, a controlled dangerous substance, or any combination of the aforementioned, or in violation of an alcohol restriction, or did drive, operate, or be in physical control of a commercial motor vehicle while having any alcohol concentration in their blood or breath based on the following:
2/8/11 23:16 pm; drove on the wrong side of the double yellow line; ran a stop sign.
2) There is evidence of the use of alcohol, drugs, controlled dangerous substance or any combination of the aforementioned based on the following:
strong odor; told officer had 4 beers; performed poorly on the standard field sobriety test indicaiting clues of
intoxication on the horizontal gaze nystagmus; walk and turn and one leg stand.
The officer fully advised the Licensee of the administrative sanctions that could be imposed: Yes 0 No d
The officer requested that the Licensee take a test as defined under Md. Code Ann., Transp. § 16-205.1 (a) (1) (iv):Yes E Nod
The Licensee drove or attempted to drive a motor vehicle and took the test as requested, indicating an alcohol concentration of :
Yes E Nod 0.09 grams of alcohol per 210 liters of breath at the time of testing: Yes d NoE grams of alcohol per 100 milliliters of blood at the time of testing:
The Licensee refused to take the test: Yes d NoE
The Licensee was driving a commercial motor vehicle: Yes D NoE
OTHER FACTS [IF NEEDED]
WK: Construction as a Laborer; works at various job sites in VA, DC and MD; Takes two children to school; takes young child to doctor's appointments A/E: never been evaluated for alcohol education or treatment;
D The Licensee failed to appear after due notice to address on record.
CONCLUSIONS OF LAW
E Based on the foregoing, I conclude that the Licensee did violate Md. Code Ann., Transp. § 16-205.1 D Based on the foregoing, I conclude that the Licensee did not violate Md Code Ann., Transp. §
MODIFICATION OF DETERMINATION
I have weighed the adverse effect upon Licensee's need to drive for employment or alcoholic prevention purposes versus the State's need to maintain safety on the public highways.
Licensee has had a license suspended under Md. Code. Ann., Transp. §16-205.1 in the past 5 years: Yes D NoE
Licensee has been convicted under Md. Code. Ann., Transp. §21-902 in the past 5 years: Yes D NoE
Licensee needs a license for employment purposes: Yes E Nod
Licensee needs a license to attend alcohol prevention or treatment program: Yes D NoE
DECISION
Driving privilege is:
Suspended for: 45 DAYS
Revoked
Revocation Extended for:
CDL Disqualified for:
License Refusal Upheld
License Refusal Not Upheld
Cancelled
D Any suspension imposed shall run D concurrent with D consecutive to any existing suspension .
D Any suspension imposed shall be retroactive to:
D Above suspension is not modified
D The above suspension is modified. The licensee shall participate in the MVA's Ignition Interlock Program.
B Above suspension is modified to a restrictive license.
D No action
D Reprimand
D Other:


The Licensee's temporary license was retained by the ALJ at the hearing.
The Licensee's photo driver's license class - (issue date) was retained by the ALJ at the hearing.

Judge from the motor vehicle administration

APPEAL RIGHTS
Pursuant to the Transportation Article of the Annotated Code of Maryland, §10-209: the Administrative Procedure Act, State Government Article, §10-201 et seq., and the B Rules of the Maryland Rules of Procedure, any aggrieved party to a hearing may appeal from a decision or order of the Administration as follows:
WHERE:
If the matter concerns the license of a party to drive and the party is a resident of this State, to the Circuit
Court for the county in which the party resides;
If the party is a non-resident motorist, to the Circuit Court for the county in which the party was convicted of
the violation to which the matter relates; and
If not otherwise provided in this section or elsewhere in the Maryland Law, to the Circuit Court for Anne
Arundel County.
WHEN:
An appeal must be filed within thirty (30) days from the date of the decision or order.
FFD-APS 2
2 O1O-O9-O1
Licensee 04-12-2011
drivers license number DOT-APS-case number
LICENSE RESTRICTION ORDER
Suspension of the license has been modified to a restrictive license for: 45 DAYS
Employment purposes
Alcoholic prevention or treatment program purposes
Educational purposes
Employment and educational purposes
Obtaining health care treatment pursuant to Md. Code Ann., Transp. § 16-205.1 (n).
Alcohol
2O1O-OS-O1