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.

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.

Daniel Brannon fought back tears as he spoke of going from childhood addiction to recovery in his 40s. He recounted those along the way who never gave up on him through countless stints of rehabilitation, homelessness, imprisonment and failed attempts at sobriety.

Now sober for nearly five years, Brannon, 48, graduated from Anne Arundel Community College in May with an associate’s degree in applied science focused on addiction counseling; he now works at Right Turn of Maryland in Owings Mills. Brannon’s triumphs have made him a finalist for the Pearson Prize for Higher Education, a national award honoring college students who serve their communities.

We tip our hats to Mr. Danny Brannon for all that he has achieved – despite having many road blocks in his path. He is living proof that with hard work, persistence, and dedication one can get over any hurdle. Mr. Brannon works out for Right Turn of Maryland in Owings Mills and has assisted the legal team at Shapiro & Mack with many cases. We simply wanted to take a moment to recognize his achievements as he dedicates his life to recognizing the achievements of others. For more information on Right Turn or Mr. Brannon’s services, feel free to contact Shapiro & Mack at 410-884-6100 or email at info@shapiroandmack.com.

STEP OFF!!!

HEADNOTE: Hannah v. State, No. 151, September Term, 2009

EVIDENCE; CROSS-EXAMINATION; IMPEACHMENT OF A CRIMINAL
DEFENDANT WITH “RAP” LYRICS WRITTEN BY THE DEFENDANT THAT
DESCRIBE ACTS OF VIOLENCE:

The trial court does not have discretion to permit cross-examination that is harassing, unfairly prejudicial, confusing, or unduly repetitive. In the case at bar, the Circuit Court abused its discretion by permitting the State to cross examine Petitioner about each and every one of ten violent “rap” lyrics that Petitioner hadwritten. As the ten “Your lyrics?” questions served no purpose other than the purpose ofshowing that Petitioner has a propensity for violence, he is entitled to a new trial.

– The rate of driving-related deaths for male baby boomers is rising, in sharp contrast to a decline in driver-related deaths for every other male and female age group, recent federal data shows.

An Edmunds.com analysis of driver fatality data from the National Highway Traffic Safety Administration found that the number of annual traffic fatalities for men between the ages of 51 to 65 rose by nearly 25% between 2000 and 2009.

During the same period, annual fatality figures for all male drivers regardless of age declined by more than 20%. Fatality figures for all females also declined 20% during the same ten-year period.

Meanwhile, drunk driving fatalities among men and women ages 51 to 65 increased by 37% between 2000 and 2009, while overall drunk driving fatalities among all drivers fell by nearly 7%, Edmunds.com said.

“We spend a lot of worthwhile energy teaching younger generations about the virtues of staying safe on the road — especially when it comes to the dangers of drinking and driving,” said Edmunds.com CEO Jeremy Anwyl, in a prepared statement. “But the baby boomer generation is not heeding the same advice they’re giving to their children.”

The data analyzed by Edmunds also shows that men are twice as likely to be intoxicated when getting into a fatal accident as women, and that drivers between the ages of 26-35 are more likely to be intoxicated when getting into fatal accidents than any other age group.

Edmunds.com has planned a car safety conference next month, to be held in Washington.

BUT IT'S 4/12 NOT 4/20...

An amended version of Maryland SB 308 has been approved by the state’s House and Senate and now goes to the desk of Governor O’Malley, whose aids have indicated he plans to sign the bill. While not as robust as the original, SB 308 still allows for qualified medical marijuana patients to present an “affirmative defense” if they are being prosecuted for possessing and consuming their medicine. Here is an excerpt from a Marijuana Policy Project email alert:

“With the passage of this bill, the General Assembly has let seriously ill patients know they are not criminals for seeking relief from their pain and suffering,” said Senator David Brinkley, the primary sponsor of the Senate bill.” It will also establish a framework to build on in moving forward with more comprehensive solutions so that some day soon patients will be able to obtain their medicine in dignity and not on street corners. I thank my colleagues in both chambers for today’s compassionate vote.”

In its current form, the bill, SB 308, allows individuals diagnosed with debilitating medical conditions, such as cancer or multiple sclerosis, to avoid conviction if charged with the non-public use or possession of one ounce or less of marijuana. An existing sentencing mitigation would remain part of the law, meaning patients who don’t qualify for the full affirmative defense would still have the opportunity to present evidence of medical necessity and have their sentence reduced to a $100 fine. In addition, a work group consisting of medical, legal, and law enforcement experts would be convened to recommend more comprehensive legislation next year. The bill represents a compromise after the Secretary of the Department of Health and Mental Hygiene objected to a more robust proposal calling for state-regulated dispensaries due to the cost of implementation.

“Today’s vote is a move toward compassion for those who might benefit from this drug,” said Delegate Dan Morhaim, the bill’s House sponsor and the General Assembly’s only licensed physician. “A growing body of evidence suggests marijuana is helpful in treating certain conditions, and seriously ill people who use marijuana to treat such conditions on the advice of their physician should not be considered criminals.”

“Under current law, patients using medical marijuana in Maryland face criminal arrest, prosecution and conviction,” said Sen. Jamie Raskin, one of the sponsors in the Senate. “Although judges can reduce the penalty to $100 in these cases, we heard testimony from patients who said they have lost their jobs and were haunted for life by being branded as criminals. This legislation declares that severely ill people using medical marijuana are not criminals and will have the opportunity to establish medical necessity as a defense to a possession charge. The removal of this threat and the creation of a work group to develop a Maryland model for a comprehensive medical marijuana regime moves us closer to the broader goal of giving patients in Maryland a legal way to obtain doctor-recommended medicine.”

Advocates appear to be  encouraged by the compromise. “This isn’t a permanent solution, and it’s not everything that patients need, but it allows people suffering from debilitating conditions to sleep a little easier tonight while they wait for full protections,” said Dan Riffle, a legislative analyst with the Marijuana Policy Project.

Maryland could very well becomes the 16th state to remove criminal penalties for medical marijuana patients and next year maybe a full medical marijuana bill can be introduced and make its way through the legislature.

The legalization of medical marijuana is very interesting topic that most people have a strong opinion about. Those of us at Shapiro & Mack plan to stay on top of the news relating to this bill so that we can zealously defend our clients and pursue every conceivable defense.  We would love to hear your comments on this topic.

"Instruction begins when you, the teacher, learn from the learner; put yourself in his place so that you may understand . . . what he learns and the way he understands it." Soren Kierkegaard

A Howard County police officer was arrested early this morning in Southeast Baltimore after police say he punched a female officer in the head then yelled, “I’m a cop!” as officers placed him in handcuffs.

According to court records, officers were attempting to disperse a crowd at Canton Square in the 2900 block of ODonnell St. at 2 a.m. when someone yelled “[Expletive] the police,” who the officer believed to be Casey Robert Lechter. Another man, Kary Williams, said he was the person who made the statement, and the officer told him to leave the area, according to records.

He refused, and the officer told him he was under arrest, officers wrote. While she was placing handcuffs on him, she said Lechter punched her in the head from behind and pushed her away. Police records say a private citizen grabbed Lechter and pinned him against a parked vehicle as additional officers arrived at the scene to help.

Police say Lechter yelled, “I’m a cop” but continued to resist arrest. Williams, meanwhile, suffered a cut to his head and was bleeding heavily, “covering both police officers in his blood,” officers wrote in court documents. Medics were called, and Willliams “continued to flail and spray his blood in the area,” records show.

Electronic court records indicate neither Lechter nor Williams had not been charged as 2 p.m. Sunday, though the police report said both were taken to a hospital and would be charged after they were released.

According to the Howard County police web site, Lechter served in the U.S. Marine Corps Reserves and was deployed for a tour of duty in Afghanistan. His unit recovered thousands of pounds of heroin, and days later some of the unit’s soldiers were injured or killed in a bombing.

Sunday morning’s fight, which officials say happened outside Coburn’s Tavern, was originally put out by the city firefighters union over Twitter as a stabbing, due to the large amount of blood from Williams. Police say no one was stabbed during the altercation.

This news update is brought to you by the Howard County’s Premier Boutique Criminal Defense & Personal Injury firm SHAPIRO & MACK