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.

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.

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.

The Serenity Prayer reads: “God, grant me the serenity to accept the things I cannot change, the courage to change the things I can, and the wisdom to know the difference.” This prayer is often repeated 12 step meetings such as Alcoholics Anonymous and Narcotics Anonymous. However, it is also a wonderful mantra to live our lives by.

The Law Firm of Shapiro and Mack also has adopted this prayer for guidance. We understand that in some cases, the facts of those cases are so insurmountable that we cannot secure a not guilty verdict on behalf of our clients. We accept that we cannot win every case. However, we try to exercise the courage to change the things that can be changed such as the outcome of our client’s cases. In other words, although sometimes we know that we cannot secure a not guilty verdict, however, we can still get our clients a good result as to the outcome of their case. Further, our experience has allowed us to exercise the wisdom to know which cases should be tried and which cases should be plead. Either way, I give you our assurance that the attorneys of Shapiro and Mack will fight our hardest to secure our clients the most favorable result possible.

What allows us to get our clients good results is a combination of several factors. The first is experience. I served as an assistant state’s attorney for 4 years. During that time, I tried hundreds of court trials, dozens of jury trials and attended all sorts of continuing legal education schools and seminars. Paul Mack learned his litigation skills from being trained by some of the area’s best trial attorneys when he was associated with a large Baltimore law firm. David Zwanetz started as Shapiro and Mack’s first law clerk and has been trained by both Jason and Paul. All three of us continue to attend the finest trial schools and seminars in the country which helps us keep our edge in doing what we do.

For those of you who have experience as a client of our firm, I want to thank you for your continued referrals of your friends, coworkers, relatives and acquaintances. We are honored to have a referral rate of approximately 90%. Further, I pledge that we will honor your referrals by giving it our all in fighting hard on their behalf for to consistently attain the most favorable result possible.