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.
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.
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.
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.
Monday, November 11, 2013
Youthful carjacking defendant receives treatment along with incarceration
Youthful carjacking defendant receives treatment along with incarceration
My client was 18 years old when he was accused of carjacking the taxicab of an 86-year-old man. In this particular case he and his codefendant apparently had no bus money and took the keys by force from a senior citizen. The senior citizen was not threatened, there was no weapon and he was not injured. Several hours later the police spotted the stolen car and allege that my client bailed out of the car and ran away. Several hours later they apprehended him. He was likely under the influence of PCP at the time.
At the time of this offense my client was on probation for robbery. He had committed the robbery as a juvenile but his case was put into the adult court. He may already also have had a conviction for felony theft as an adult.
As a juvenile he had significant contact with the criminal justice system.
I suspect that most people that read this post would have very little sympathy for this individual and perhaps hope that the judge would lock him up and throw away the key. Before he can be locked up there does need to be proof beyond a reasonable doubt of his guilt.
I began looking at the proof. The evidence against my client I thought was fairly strong. The victim gave an immediate statement claiming he could identify my client. My client had a distinct tattoo on his arm and the victim noticed that. Also my client gave a confession to the police. Finally, there were forensics which tied my client to the car: his fingerprints were inside the car including the rearview mirror. That is a classic when a crook steals a car they put their hands on the rearview mirror to adjust it. As stated, the evidence was pretty strong.
My client had a lengthy criminal record and was on probation. Sentencing guidelines called for imprisonment of up to 10 years for this offense. He owed his probation judge 3.5 years backup time. He was basically looking at 13 1/2 years of prison time.
I spoke to some of his family members. He had suffered abuse at the hands of other men from an early age. He had drug problems. He was bipolar and was suffering from ADHD. He had never been to a "normal" school. He was always in some sort of special needs schools. His mother referred me to the principal of his last school. I spoke with the principal but she was not particularly helpful in terms of telling me that my client was making great progress. He was having significant problems in the school.
This barely 19-year-old young man was in deep trouble and could not seem to get out of this pattern. Even though he had all this criminal history my thinking was that it was related to the abuse that he suffered, the psychological condition, his drug addiction. My thinking was that if I could get him into an intensive treatment program he might be able to turn his life around.
Maryland has the Patuxent Institution youthful offenders program. It applies to men and women 21 years and under. They want the person there for at least five years so that they can give them intensive therapy, counseling and job training. It is not possible to exit that program voluntarily. You either graduate or you are kicked out because of serious behavior violations. You cannot choose to leave the program. They apparently have a pretty good success rate.
Armed with this information I negotiated with the prosecutor as well as the trial judge who happened to be the violation of probation judge. We all agreed that if he received a seven-year sentence at the Patuxent Institute he had the best chance of turning his life around. My client was sentenced to basically seven years with a recommendation for the Patuxent Institute for both offenses with supervised probation to make sure he is doing well after he is done with incarceration.
When choosing your defense attorney experience counts. The judge and prosecutor have known me for decades and trust my judgment. I had the knowledge to find a proactive program that will actually help my client rather than just put him in a warehouse. I am hoping that he does well.
My client was 18 years old when he was accused of carjacking the taxicab of an 86-year-old man. In this particular case he and his codefendant apparently had no bus money and took the keys by force from a senior citizen. The senior citizen was not threatened, there was no weapon and he was not injured. Several hours later the police spotted the stolen car and allege that my client bailed out of the car and ran away. Several hours later they apprehended him. He was likely under the influence of PCP at the time.
At the time of this offense my client was on probation for robbery. He had committed the robbery as a juvenile but his case was put into the adult court. He may already also have had a conviction for felony theft as an adult.
As a juvenile he had significant contact with the criminal justice system.
I suspect that most people that read this post would have very little sympathy for this individual and perhaps hope that the judge would lock him up and throw away the key. Before he can be locked up there does need to be proof beyond a reasonable doubt of his guilt.
I began looking at the proof. The evidence against my client I thought was fairly strong. The victim gave an immediate statement claiming he could identify my client. My client had a distinct tattoo on his arm and the victim noticed that. Also my client gave a confession to the police. Finally, there were forensics which tied my client to the car: his fingerprints were inside the car including the rearview mirror. That is a classic when a crook steals a car they put their hands on the rearview mirror to adjust it. As stated, the evidence was pretty strong.
My client had a lengthy criminal record and was on probation. Sentencing guidelines called for imprisonment of up to 10 years for this offense. He owed his probation judge 3.5 years backup time. He was basically looking at 13 1/2 years of prison time.
I spoke to some of his family members. He had suffered abuse at the hands of other men from an early age. He had drug problems. He was bipolar and was suffering from ADHD. He had never been to a "normal" school. He was always in some sort of special needs schools. His mother referred me to the principal of his last school. I spoke with the principal but she was not particularly helpful in terms of telling me that my client was making great progress. He was having significant problems in the school.
This barely 19-year-old young man was in deep trouble and could not seem to get out of this pattern. Even though he had all this criminal history my thinking was that it was related to the abuse that he suffered, the psychological condition, his drug addiction. My thinking was that if I could get him into an intensive treatment program he might be able to turn his life around.
Maryland has the Patuxent Institution youthful offenders program. It applies to men and women 21 years and under. They want the person there for at least five years so that they can give them intensive therapy, counseling and job training. It is not possible to exit that program voluntarily. You either graduate or you are kicked out because of serious behavior violations. You cannot choose to leave the program. They apparently have a pretty good success rate.
Armed with this information I negotiated with the prosecutor as well as the trial judge who happened to be the violation of probation judge. We all agreed that if he received a seven-year sentence at the Patuxent Institute he had the best chance of turning his life around. My client was sentenced to basically seven years with a recommendation for the Patuxent Institute for both offenses with supervised probation to make sure he is doing well after he is done with incarceration.
When choosing your defense attorney experience counts. The judge and prosecutor have known me for decades and trust my judgment. I had the knowledge to find a proactive program that will actually help my client rather than just put him in a warehouse. I am hoping that he does well.
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