Field Sobriety Tests

Historically, guilt was established by observed driving symptoms, such as weaving; administering field sobriety tests, such as a walking a straight line heel-to-toe or standing on one leg for 30 seconds; and the arresting officer’s subjective opinion of impairment. The officer must correctly perform the Field Sobriety Tests that are approved by the National Highway Transportation Safety Administration (NHTSA). The US Department of Transportation explains the Field Sobriety Test as, “a battery of three tests administered and evaluated in a standardized manner to obtain validated indicators of impairment and establish probable cause for arrest.” Starting with the introduction in Norway in 1936 of the world’s first per se law which made it an offense to drive with more than a specified amount of alcohol in the body, objective chemical tests have gradually supplanted the earlier purely judgmental ones. Limits for chemical tests are specific for blood alcohol concentration or concentration of alcohol in breath.

The Miranda warning (also referred to as Miranda rights) is a warning given by police in the United States to criminal suspects in police custody (or in a custodial interrogation) before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings. In other words, a Miranda warning is a prophylactic criminal procedure rule that law enforcement is required to administer in order to protect an individual who is in custody and subject to direct questioning or its functional equivalent from a violation of his or her Fifth Amendment right against compelled self-incrimination. In Miranda v. Arizona, the Supreme Court held that the admission of elicited incriminating statement by a suspect not informed of these rights violates the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to counsel. Thus, if law enforcement officials decline to offer a Miranda warning to an individual in their custody, they may still interrogate that person and act upon the knowledge gained, but may not use that person’s statements to incriminate him or her in a criminal trial.

In Berghuis v. Thompkins, the Court held that, if a suspect waives this right and interrogation begins, the right to halt further interrogation by the police must be exercised explicitly, by revoking the prior waiver.

Congratulations to Jason Shapiro in recognition of being awarded “Super Lawyers” and “Best Lawyers In America” in 2012 for a fifth consecutive year!

BY: Jason A. Shapiro

Last month, I went on my very first European vacation, specifically to Italy.  I spent 11 days touring the country, seeing its beauty and learning a bit of its history.  I particularly enjoyed learning about the Italian Renaissance, and gazed in amazement at the masterpieces of Rafael, Carravaggio, Leonardo Da Vinci and especially the works of Michelangelo.   These artists and their works, as well as the impetus behind the Renaissance, made me reflect on my clients, my role as their attorney, and how to best serve them.

The word “Renaissance” (Rinascimento in Italian) means “rebirth.”  The Renaissance came and the conclusion of the Dark Ages, and it was an era in which Italians/Europeans were re-born.  The Dark Ages were a time of intellectual and cultural stagnation.  This gave way to the Renaissance period whereby people could and were encouraged to think freely, to write their thoughts and philosophize.  People were encouraged to be creative and to express their creativity through architecture, crafts and art.  Perhaps if not for people’s thoughts to be stymied in the Dark Ages, could the creativity of the geniuses of the Renaissance be fully expressed?

So what does all of this have to do with criminal law?

A large percentage of our clients need to see us because they were arrested for an offense involving alcohol or drugs.  Some see us because of mental health issues that are not properly treated or that are not treated for at all.  For many of our clients, issues with alcohol and drugs (and mental health issues) are the norm; they do not know or remember what life is like without them.  For all intents and purposes, these clients are living in their own Dark Age.  Their maximum level of creativity, achievement, and standard of life is not reached because they are weighed down by such issues.  Then they are arrested or charged with a crime.

When our clients come to see us, we not only try to win their case and get them the best result possible, but we also try to get them to rise above their own Dark Age and seek their own Renaissance.  We try to get them to view their life from above, to re-think certain decisions that they made that led to their arrest, and how to make more productive and responsible choices in the future.  Our list of contacts of drug and alcohol counselors and mental health professionals is quite extensive.  Thus, should our clients need an extra helping hand, we can assist them with a referral to such counselors and professionals.  All in all, we try to have our clients, not just look at their arrest as the worst thing that ever happened to them.  We ask them to view their arrest as a chance to have a fresh start at life.  Just like the Renaissance period could not have happened without the Dark Ages, so too could some of our clients not reach their maximum potential without a setback set as their arrest.  It is up to us to make sure that the arrest is just a setback and a chance to be re-born, and not a permanent blot upon our clients’ records, or worse.

Thus, we all can improve.  We all can strive for re-birth and to walk the continuum to our own Renaissance period and away from our own Dark Ages.  Here at Shapiro and Mack, we are constantly trying to better ourselves to better serve our clients.  Hopefully, our clients will also keep trying to walk away from their own Dark Ages and to improve as people, thus allowing them to better enjoying life’s bounties.

PRESS RELEASE:

FOR IMMEDIATE RELEASE

CONTACT: Shapiro & Mack

PHONE: (410) 884-6100

EMAIL: davidz@shapiroandmack.com

SEPTEMBER 30, 2011

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State of Maryland v. Wael G. Ali,  District Court of Maryland for Howard County

On behalf of the family of Wael and Wasel Ali, it is with extreme sorrow that this message is delivered to the community – the community that the Ali family has been a part of, and loved, for well over 20 years. In 2007, Wasel Ali’s life was brutally ended at the hands of another.  The loss of Wasel was, and still is, unbearable for the Ali family.  Wael Ali, being the identical twin brother of and best friend to Wasel, took his brother’s death the hardest.  As lifelong residents of Howard County, the familiar landscape of Columbia, Maryland was a constant reminder of times past and Wasel’s demise.   After four years of unanswered questions, unanswered prayers, and unanswered pleas for help, Wael moved to Atlanta, Georgia, along with his mother, to attend college, start a family business, and begin anew.

Dreadfully, after Wasel’s case had gone cold for years, Wael was torn from his new community in Georgia and falsely accused of the most heinous crime imaginable. The Ali family firmly stands behind Wael. The Ali family believes in Wael’s innocence; they believe in the justice system; they believe in their community; and they believe that Wael, in due time, will be completely exonerated.

It is not indicative of guilt that Wael has been denied bond. In fact, the frequent denial of bond in cases involving serious allegations is common in the United States justice system. Wael Ali stands innocent of all charges. To that effect, the legal team of Jason A. Shapiro, Paul E. Mack, and David Zwanetz has been retained to fight for justice and the liberty of Wael Ali. Mr. Shapiro, Mr. Mack, and Mr. Zwanetz wholeheartedly believe in Wael’s innocence and intend to aggressively pursue his absolute vindication.

By nature, a parent should never outlive a child. The parents of Wael Ali were forced to endure the most unnatural of circumstances in 2007 with the tragic loss of their son, Wasel Ali. They will not tolerate the loss of Wael Ali, their other son, in 2011 on false accusations or baseless allegations.

During this difficult time for the Ali family, they sincerely request that their privacy be respected and they be given time to grieve. At this time, the family is not available for additional comments or interviews. The Ali’s have requested that all inquiries into this matter be directed to Jason A. Shapiro, Paul Mack, or David Zwanetz at the Law Firm of Shapiro & Mack.

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By: Jason Shapiro

A few years ago, I had a client, a young man, who recently graduated from Wilde Lake High School, in Columbia.  He was back at the school where he was visiting his old football coaches and team mates during the summer try-outs.  There, he met an attractive young girl who was trying out for the cheerleading squad.  They flirted, began seeing each other, and eventually had consensual sex.  The girl’s mother, finding condom wrappers in the trashcan, demanded the girl tell her the identity of the boy with whom she had sex.  The girl did, and when the mother found out that he was a high school graduate, called the police.  The police found that young man playing a pick up game of basketball.  They told him that they were investigating him for rape.  They told him he was not under arrest and that the police just wanted to talk.  He denied any rape.  He admitted to consensual sex.  He said that he was dating this girl and that he really liked her.  He explained that she told him she was almost 16 (a statement of which the girl says she did tell this young man) and that he thought it was ok for he, an 18 almost 19 year old, to see a girl 3 years younger.

It turns out that the girl lied about her age.  She was 2 years younger than stated, as she was a freshman, 13 going on 14 years of age.  As a result, the young man was charged with Felony Second Degree Rape.

Here is worst part:

1. Second Degree Rape is a “strict liability offense.”  This means that even though the girl lied about her age, and even though the young man thought that he was doing no wrong, he can still be convicted of the offense by the mere fact that he is more than four years older than he young lady.
2. A probation before judgment disposition is precluded by law for this offense. Therefore, if the presiding judge feels that the young man was duped into a sexual compromising position by a lying “victim” that judge cannot right the wrong by striking out the guilty finding and offering the young man a probation before judgment disposition. Without a probation before judgment disposition, the young man cannot expunge this charge from his record, and he will need to live the rest of his life with a felony conviction for second-degree rape on his public record.
3. That young man was required to register on the Sexual Offender Registry. Because the “victim” was underage, the young man is now classified as a “Sexually Violent Predator.”  He is required to be on the sexual offender registry for life.

Since the legislature has mandated no probation before judgment dispositions may be imposed, and mandated this young man’s participation in the sexual offender registry, no judge and no government official can exercise any discretion regarding “making the punishment fit the crime.”

In my opinion, the State of Maryland has become very conservative regarding these kinds of offenses to the point that certain individuals, such as the client portrayed above, have not been treated fairly and justly by the criminal justice system.

I don’t believe that anyone who reads this blog, or anyone who dwells in the State of Maryland for that matter, believes that true sexually violent predators should be dealt with in any other manner than harshly. However, the young man profiled above could be many an 18 or 19-year-old young man who is not thinking clearly when an attractive young lady is consenting to sexual relations.

It is my belief that since we appoint judges for their intellect and experience, we should rescind the mandatory penalties in this cases to allow such judges to use that intellect and experience to determine which young men should be required to go through life with a felony conviction and a listing on the sexual offender registry, and which young men should have the opportunity to expunge the blot of these kinds of offenses from their public record.

By: Paul Mack, Esq.

WORSE THAN JAIL!

If someone in Maryland is arrested for driving under the influence of alcohol, driving while impaired by alcohol or driving while impaired by drugs or drugs and alcohol, there is almost always a civil administrative action that may be held that deals with the person’s license to drive or privilege to drive in the State of Maryland. If a driver takes the breath test and the result is 0.08 or higher, or if someone refuses to take a breath test, the driver will be given the opportunity to request an MVA hearing. It is only when the driver is over 21 years of age and takes a breath test and the result is 0.07 or lower that there will not be an MVA hearing. However, if that same individual has an alcohol restriction on his or her license, this means that they cannot refuse to take a breath test or if they take a breath test and the result is 0.02 or more, then the MVA may take action against that person’s license or privilege to drive.

The MVA hearing is a civil administrative action held before an administrative law judge, more commonly referred to as an ALJ. There are approximately 60 different ALJ’s who travel throughout the State of Maryland to hear MVA hearings at either the Office of Administrative Hearings in Hunt Valley, Maryland, or at the various full-service MVA locations throughout the State of Maryland. The Fourth Amendment to the United States Constitution that deals with unreasonable and illegal searches, stops and seizures does not apply to MVA hearings. In addition, hearsay is admissible at the MVA hearing. Customarily, the MVA presents their case through documents and not through live testimony. It is only if the defense attorney or MVA feel that there is an issue that requires the officer’s presence that a request to subpoena the officer is filed with the Office of Administrative Hearings. If the subpoena request is granted, a subpoena is issued to the officer and he or she is ordered to attend the MVA hearing. Occasionally, the specified officer fails to appear and the hearing is then usually held without the officer’s presence. In District or Circuit Court, hearsay is not admissible, and generally the officer’s presence is required. There are times in District or Circuit Court where defense counsel might agree to a plea agreement before the trial date, and in that case, the arresting officer is not required to attend. The results of a preliminary breath test, or PBT, is admissible at an MVA hearing. At District or Circuit Court, the taking, refusing and the results of a preliminary breath test are not admissible at trial unless the defendant introduces that information to the Court.

At the MVA hearing, there are very limited issues that may be raised under Maryland Transportation Article Section 16-205.1(f)(7). The only issues that can be raised are:

1) whether the police officer who stops or detains a person had reasonable grounds to believe the person was driving or attempting to drive while under the influence of alcohol, while impaired by alcohol, while so far impaired by any drug, any combination of drugs, or a combination of one or more drugs and alcohol that the person could not drive a vehicle safely, while impaired by a controlled dangerous substance, in violation of an alcohol restriction, or in violation of Section 16-813 of this title;

2) whether there was evidence of the use by the person of alcohol, any drug, any combination of drugs, a combination of one or more drugs and alcohol, or a controlled dangerous substance;

3) whether the police officer requested a test after the person was fully advised, as required under subsection (b)(2) of this section, of the administrative sanctions that shall be imposed;

4) whether the person refused to take the test;

5) whether the person drove or attempted to drive a motor vehicle while having an alcohol concentration of .08 or more at the time of testing;

6) whether the person drove or attempted to drive a motor vehicle while having an alcohol concentration of .15 or more at the time of testing; or

7) if the hearing involves disqualification of a commercial driver’s license whether the person was operating a commercial motor vehicle or held a commercial driver’s license.

The ALJ only has the authority to suspend, restrict or revoke one’s driver’s license or privilege to drive. On a first offense with a breath test result of 0.08 through 0.14, the administrative law judge has the power to grant a restricted or modified license to permit the driver to drive for work purposes, to attend an alcohol prevention or treatment program, for school purposes, and for the purpose of obtaining health care treatment including a prescription that is necessary for the driver or a member of the driver’s immediate family and the driver and the driver’s immediate family have no alternative means of transportation available to obtain the health care treatment. Alternatively, the ALJ may suspend the license outright for a period of 45 days. On a second or subsequent offense with a reading of 0.08 through 0.14, the ALJ only has authority to grant a restricted or modified license as noted immediately above if the licensee has not been convicted of or been suspended for driving under the influence of alcohol, driving while impaired by alcohol, driving while impaired by drugs or drugs and alcohol or driving while impaired by a controlled dangerous substance. If the person has been convicted or suspended within five years, the ALJ has authority to allow the licensee to drive under the ignition interlock program. Alternatively, the ALJ may suspend the license outright for a period of 90 days. If the licensee takes a breath test and it registers 0.15 or higher, the ALJ has authority to suspend for 90 days on a first offense and 180 days on a second or subsequent offense. The only modification that the ALJ has authority to order would be the ignition interlock program. If the licensee refuses a breath test and it is the first such time, the ALJ has authority to suspend the license for 120 days for a first offense, and for a year for a second or subsequent offense. The only restriction that can be given is for the ignition interlock program, and it is for a minimum of one year.

It is crucial to retain an attorney who knows how to competently and effectively represent you. The attorneys at Shapiro & Mack,are ready to provide the highest level of representation at your MVA hearing.