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In Maryland, DUI/DWI Attorneys are often confronted with cases in which a client was found not to be driving while impaired or under the influence, but instead was found to be sleeping in his or her vehicle while under the influence of alcohol. This situation implicates the so called “shelter defense” in Maryland. Unlike in some other states, Maryland legislators have chosen not to make sleeping in one’s vehicle an absolute defense to DUI/DWI charges. Some states have decided that as a matter of public policy, they want to encourage people who are driving under the influence to pull over and “sleep it off” so to speak, rather than continue to endanger the public by continuing down the road while under the influence. In these States, it matters not where the person was parked, how long they had been there or whether or not they admit to driving the vehicle to the location while under the influence. If the person made the decision to pull over and park their car rather than continue to drive under the influence, they simply may not be prosecuted for DUI/DWI in these states. Not so in Maryland.

In Maryland, the law essentially states that a person may use his or her car as a shelter while under the influence of alcohol so long as he makes no attempt to control the vehicle and does not present an imminent danger of doing so. A person in this situation can only be prosecuted for DUI/DWI if the facts and circumstances under which the person was discovered in the vehicle indicate that the person operated the vehicle while under the influence prior to using it as a shelter or that the person is imminently going to operate the vehicle in that condition. The leading case on this issue is Atkinson v. State. In that case the court laid out a 6 factor test to determine whether or not the person had driving the vehicle while under the influence or was simply using the vehicle for shelter.
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Breathalyzer machines, commonly used by Maryland police, detect and measure the alcohol present in air that is breathed out. During the consuption of alcohol, the alcohol crosses from the intestine into the bloodstream. When the blood circulating around the body gets to the lungs, some of the alcohol in the blood crosses into the air contained in the tiny sacs of the lungs. This same air, that is breathed out of the lung, contains alcohol that can be measured by breathalyzer machines.

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I recently filed a multi-million dollar case against the Baltimore City Police Department involving an illegal and unwarranted body cavity search. Having received many inquiries since than on the law in this area, I will explain the nuts and bolts of the legality of strip searches in Maryland.

The key Maryland cases regarding the reasonableness of a strip search are State v. Nieves, 383 Md. 573 (Md. 2004) and Paulino v. State, 359 Md. 341 (Md. 2007). Both cases reiterate that it is well established both that the State has the burden of proving the legality of a warrantless search and that warrantless searches are per se unreasonable under the Fourth Amendment absent some recognized exception. Although a search incident to arrest is a recognized exception to the warrant requirement, a strip search incident to arrest is held to a much higher standard.

The Nieves court held that the reasonable, articulable suspicion standard applies in the strip search incident to arrest context. Nieves, 383 Md. at 596. While strip searches for felony arrests may always be justifiable, strip searches following arrests for minor offenses are generally ‘found wanting’, unless the officer had information that would have led to a reasonable suspicion that the person was carrying weapons or contraband at the time of the arrest. Id. at 592. Nieves was arrested for traffic offenses that included driving on a suspended license, negligent driving, failure to control speed, and giving false accident information. The court found that a strip search following Nieves’ arrest was not reasonable because the nature of the traffic violations for which he was arrested failed to create a suspicion that he was carrying weapons or contraband. Id. at 596. The justification for the search of Nieves based on his prior drug offenses and the fact that he was driving a car whose owner was associated with drugs was also found lacking. The court held that allowing a strip search based on prior drug arrests would amount to allowing a search based on a person’s status, rather than an individualized assessment of the circumstances. Id. at 597.
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Maryland Criminal Attorney – Does a sentence of life without the possibility of parole for a 13 year old constitute cruel and unusual punishment and therefore violate the 8th Amendment to the Constitution? That is exactly the question that the United State’s Supreme Court may consider in a 20 year old case from Florida. There was an article about this case in the New York Times today explaining the basic facts as well as the possibility that the Supreme Court will hear the case. http://www.nytimes.com/2009/02/03/us/03bar.html?em.

Although the facts of the case are not technically relevant to the 8th Amendment issue, I think they are worth a brief description. The Defendant in the case, Joe Sullivan, was one of three boys who admitted to burglarizing a 72 year old Florida Woman’s home in 1989. Several hours after the burglary, someone entered the home and raped the 72 year old owner. At trial the woman could not identify him but after the court made the defendant repeat something that the rapist had sad to her she testified that “it’s been six months. It’s hard but it [ his voice] sounds similar”. One of his co-defendants also testified against him but it is not clear from the Times’ story what exactly he testified to since he did not claim to have been present during the rape. Additionally, Mr. Sullivan’s attorney did not give an opening statement in the one day trial and his closing argument apparently lasted only a few minutes. The attorney was later disbarred and is still ineligible to practice in Florida. Biological evidence was recovered but was apparently destroyed prior to the advent of DNA evidence. The judge sentenced Mr. Sullivan to life without the possibility of parole and he has now served 20 years of that sentence. The Florida Court of Appeals just rejected a request to review the case and the case was appealed to the Supreme Court.
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Any experienced criminal attorney in Maryland will tell you that the answer to this question is yes, at least in cases where the State has evidence other than the testimony of the alleged victim. In fact, in a non-domestic violence assault case that was recently decided by the Court of Appeals, Edmund v. State, the Court held that the State need not even identify the victim by name. The only requirement, according to the COA is that the victim be “substantially identified”. http://mdcourts.gov/opinions/coa/2007/94a06.pdf In the Edmund case, which incidentally I tried in the Baltimore County Circuit Court for the trial of this case, the defendant was alleged to have fired 5 shots from a handgun at nearly point blank range at a man whom the defendant claimed had been bullying him for some time. Remarkably, the victim was apparently not hit and he fled the scene. The police canvassed the area and checked the local hospitals with negative results. The police recovered the gun and shell casings and my client and his brother (a correctional officer) both gave written statements describing the incident. My client was indictment on attempted first degree murder, first degree assault and various handgun offenses.

In the charging document the alleged victim was only identified as a black male, five feet eight inches tall with a beard and a mustache. The COA held that there was simply no requirement that the victim be named or even identified beyond the vague description contained in the indictment and upheld his conviction. The good news for my client is that he was facing life in prison but I secured him a sentence of just eight years. He’ll be home in four.
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Maryland DUI Attorney. I had a somewhat interesting DUI/DWI case with a client who was repeat offender yesterday in the District Court for Baltimore County. My client, who is from West Virginia, was charged with DUI and DWI. The facts of the case were that he was travelling Westbound on Pulaski Highway in Baltimore County, Maryland at approximately 12:15AM on the morning of September 12, 2008. He and a friend were visiting other friends in Maryland and were staying at a motel on Pulaski Highway. They had gone out to dinner and then to a “Gentleman’s Club” and were returning back to the motel.

The motel was located on the East side of Pulaski Highway which is a divided four lane road with two lanes in each direction and a cement barrier separating the lanes. My client and his friend were not intimately familiar with the area and it was dark. They inadvertently passed by the motel and had to proceed approximately a half mile further West on Pulaski to reach the first break in the median. Here, there was a dedicated left turn lane and no signs prohibiting either a left turn or a u-turn.
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Driving on a Suspended License is one of the most common charges that causes people to appear in the District Court in Maryland. I appear as a criminal defense attorney almost on a daily bases in these cases. Many first offenders are surprised to find out that a person can actually go to jail for driving while suspended, even if suspended for what seems to be a relatively minor reason. Before I get into what a person should do prior to court if they are charged with driving while suspended in Maryland, let me first describe the most common reasons why a person’s license might be suspended and the penalties associated with each type.

By far the most common reason that a person may end up having his license suspended is for failure to appear in the District Court for a minor traffic violation. Anyone who has ever been to minor traffic court knows that many people fail to appear for their court date. When someone fails to appear in court, even for something as minor as a seat belt ticket, the Motor Vehicle Administration is notified and the person’s license is suspended. In Maryland the maximum penalty for driving while suspended for this reason is 60 days in jail and a fine of $500. A person’s license can also be suspended for failing to pay a fine or failing to appear in court for a ticket received in another state. This did not used to be the case. It used to be that the person’s privilege would only be suspended in the state in which that person failed to pay the fine. Today under what is known as the Interstate Compact, the state in which the person is licensed will be notified of the failure to pay the fine or of the failure to appear in court by the state where the violation occurred and the person’s license is suspended.
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Rarely does a day go by during which I don’t have one of my clients or potential clients complain of police brutality or excessive force by the police. In fact, the opposite is almost true. That is it is rare these days when clients tell me that the police effected their arrests in a professional and respectful manner and without resorting to the use of unnecessary excessive force.

So it came as no surprise to me to read in today’s edition of USA Today a survey of 315 emergency room physicians found that an astounding 98% percent of them believed that some of their patients had been the victims of excessive force at the hands of the police. Think about that – 98%? You can’t get 98% of people in a survey to agree that the Earth is round and here we have almost unanimity amongst a large group of emergency physicians across the country that the police use and more often than not, get away with using, excessive force.
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Theft is one of the most common crimes, if not the most common, charged in Maryland and tried by Maryland Criminal Attorneys. Excluding complicated fraud and white collar thefts, most of these cases are run of the mill in terms of the facts, the law and the outcome and rarely pose much of an intellectual challenge for the attorneys handling the case. I had a theft case this morning, however, in Baltimore City Circuit Court that had a rather unique issue that posed a bit of a challenge and made the case much more interesting that the average theft case. First the law.

There are only two elements to the crime of theft and they are both simple and logical. The elements are that property must be taken from another and that it must be taken with the intent to permanently deprive the owner of that property. The issue in the case went to element number two, whether or not my client intended to permanently deprive the owner of the property in question. The specific issue involved, and was ultimately resolved upon, a somewhat arcane legal concept known as asportation. Essentially what it means is that there must be an attempt by a would be thief to carry the property away from the area where the property was originally taken in order to complete the crime of theft. In other words it is not sufficient for the State to prove that the alleged thief merely took possession of the property that did not belong to him without the permission of the owner; there is the additional requirement that the State prove that the alleged thief moved the property from its original location or at least made an attempt to do so. More on the law in a moment but first, here are the facts of the case:
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Many people with certain “old” convictions in other states often ask if he/she has a legal requirement to register in Maryland under the current sexual offender registration laws. As former prosecutors and current defense attorneys, we are very familiar with the issue. Often times persons who were required to register in other states are not required to register in Maryland.

Criminal Procedure Subtitle 7 Registration of Certain Offenders provides that citizens of Maryland do not have to register for offenses committed before July 1, 1997. This is also confirmed by case law. The statute specifically holds that out of state offenders who committed their offense before July 1, 1997 must still register. This provision treats out of state offenders differently then in state offenders violating Article IV, Section 2 of the Constitution. The Interstate Privilege and Immunities Clause.

If he had committed this act in the State of Maryland he would not have to register. This is discussed in the editors note to Criminal Procedure § 11-704.

“Section 4, ch. 754, Acts 1997, as amended by § 1, ch 21 Acts 1998, and as amended by ch. 317, Acts 1999, provides that “except as provided in §§ 5 and 6 of this Act, this Act shall be construed only prospectively to apply to offenses that are committed on or after July 1, 1997, and may not be applied or interpreted to have any effect on or application to any individual who commits an offense before July 1, 1997.”

This position was also affirmed by the Court of Special Appeals. “A court cannot require a defendant to register in accord with former Art. 27 § 792 where all the acts in question took place before the effective date of the law. Maslin v. State, 124 Md. App. 535, 723 A.2d 490 (1999)

§ 11-704 Section 5 specifically excludes out of state convictions.

“Section 5, ch 754, Acts 1997, as amended by ch. 317, Acts 1999, provides that “a child sexual offender who is subject to the requirements of chapter 142 of the Acts of the General Assembly of 1995 and who committed the sexual
offense before October 1, 1997, is subject to the requirements of this act.”

This creates the position that if you committed your act in Maryland before July 1, 1997 you don’t have to register, but if you committed your offense outside of Maryland you have to register.
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Trademark Counterfeiting is usually seen by Maryland Criminal Attorneys in Baltimore and throughout the State in the form of counterfeited movies and compact discs. Many people are surprised to hear that it is not only a serious criminal offense but can even be a felony depending upon the total retail value of the counterfeited merchandise possessed by the defendant.

I have a new client who was recently charged with possession of counterfeited movies in Baltimore County Maryland. He is a resident of Connecticut and was merely passing through Maryland when he was profiled by a Maryland Transportation Authority Police Officer just prior to entering the Harbor Tunnel. The client, who is a young African American man, acknowledges that he was speeding as alleged by the police officer but everyone knows that he wasn’t really pulled over for travelling 62 in a 55.
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Maryland Criminal Attorney What exactly does it mean to be in “constructive possession” of contraband such as drugs or illegal weapons in Maryland? I was faced with this fairly common legal issue in a case in the District Court for Baltimore County in Catonsville this week. The facts of the case were as follows:

My client was operating a motor vehicle in the Catonsville area of Baltimore County one day this past summer. The police noted in their report that the car caught their attention because the operator was not wearing his seat belt. (I’m sure that the fact that he was a young black male had nothing to do with it). The officer’s turned around and followed the vehicle and made several other observations such as speeding and frequent lane changes. They pulled the vehicle over and identified my client as the driver and sole occupant of the vehicle. My client produced a valid driver’s license as well as the registration which confirmed that the car was registered to his father.
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Maryland Criminal Attorney I had this issue in a case in the District Court in Baltimore City today. (The case was ultimately postponed so I will have to update the blog regarding the disposition of case). The facts of the case are that a police officer was travelling behind my client in her marked patrol unit. As my client approached a red light the officer noticed that the center brake light did not illuminate when the other two did. She activated her emergency equipment and pulled my client over for the purpose, according to her report, of issuing a repair order. She also ran my client’s license through the MVA computer and determined that his license was suspended at which time she placed him under arrest. Was this a legal stop?

The problem with the stop as I see it, is that under Maryland law, all motor vehicles are required to have TWO operating brake lights, not three. So the question is, does an officer have probable cause to pull someone over because the vehicle that that person is operating has an non-functioning but clearly optional equipment. In my view the answer is no. Unfortunately, the Court of Appeals has not ruled yet on this precise issue but we can learn something about how they may rule by their rulings on some similar cases.
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I recently won a significant victory for a federal criminal client in United States District Court for the District of Maryland in a re-sentencing under Booker. https://www.silvermanthompson.com/lawyer-attorney-1301200.html In the Booker case, the Supreme Court of the United States ruled that the federal sentencing guidelines that apply to all criminal cases prosecuted in federal courts were no longer mandatory. The Court in Booker held that federal judges should consider the sentencing guidelines in fashioning a sentence, but that the guidelines were just one of many factors to be weighed in sentencing. These factors are laid out in federal law at 18 U.S.C.§3553(a) & (b). They include the nature and circumstances of the person, the need to protect the public from further crimes by the defendant, as well as the nature and circumstances of the offense.

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