Will I Go to Jail for Second DUI in Maryland?

Jail Second DUIWe are Maryland DUI attorneys who regularly represent clients facing a second, third or more DUI charge. The first question we are asked by new clients is whether they are going to jail because they have been convicted of prior DUI’s. Clients want to know whether jail is certain and if so for how long.

This blog is intended to address this very real concern and share some of the important proactive steps that make a significant difference in eliminating jail exposure or significantly reducing the length of jail in cases where there have been multiple prior DUI convictions.

The first thing we advice clients is not to despair and surrender to fear. As DUI lawyers, we are always proactive. In this regard, one of the most important decisions that have to be made is whether the DUI charge is defendable. Remember, a second, third, or whatever DUI charge is still nothing more than an accusation by a police officer. The evidence is not stronger simply because the client has priors. We do our normal aggressive trial preparation. In a prior blog I explained the steps in defending a person in Maryland charged with DUI. Those steps apply regardless of how many priors exist!

Beating the charge to avoid jail.

1. What was the basis of the traffic stop?

Did the officer make a traffic stop because he observed the client simply leaving a bar near closing time? Yes, there are police officers in Montgomery County that “sit on bars” meaning that they actually hang out around bars waiting and watching individuals leaving late at night for their precarious drive home.

A number of DUI cases that we have successfully defended are where the traffic stop is based upon a momentary crossing of the white edge-line, to check on the benefit of the driver for failing to drive in a single lane. The law under cases like Rowe v. Maryland, is that a minor traffic violation that causes no danger to either the driver or others is insufficient as a basis for a traffic stop. Importantly, police officers in Maryland are no longer permitted to make traffic stops to check on drivers’ welfare.

Similarly, traffic stops due to equipment failures often create opportunities. The non-functioning third light is a good example. While cars are equipped with a third brake light, it is not required that this light actually function. Older cars frequently have a broken tag light. But the illumination of the license plate only requires that one of the tag lights function. Most vehicles are equipped with two tag lights.

2. How did the client perform on the field sobriety tests?

A thorough understanding of the filed sobriety testing is vital in evaluating the quality of the officer’s testing and assessing the accuracy of his conclusions. In this regard, our long-term membership and active involvement with the National College of DUI Defense is vital.

In a prior blog I addressed the importance of getting a detailed understanding of all the facts surrounding the traffic stop. In Montgomery County, police officers are trained to follow a specific protocol in administrating field sobriety tests. Opportunities are generated to attack the quality of the testing when a police officer deviates from these required protocols.

Environmental factors are incredibly important. For example, performance on filed sobriety testing will be adversely affected by factors such as weather, lighting, temperature, and physical conditions such as a sloping roadway. One of the most common mistakes made by police officers is conducting testing in front of their vehicles with the flashing emergency lights directed at the driver. There is ample evidence of the dilatory effects caused by “strobe effect”.

3. Is the Breath Test valid?

There are a number of important issues presented in assessing the validity of the breath test.

i. Did the officer observe the client for 20 minutes prior to administrating the breath test? This is an absolute requirement as part of the Code of Maryland Regulation (COMAR) governing the admissibility of breath tests.

ii. Is the certification of the testing equipment and testing sample valid, up to date and present in court?

iii. Does the breath-testing officer have all his required certifications and are they present in court?

iv. Did the defense lawyer make a proper pre-trial demand for the presence of the testing police officer and any other qualified testing personnel?

v. Does the client have any health conditions that can cause the presence of mouth alcohol? Frequently, we discover that a breath test reading may be unreliable due to the client suffering from Gastroesophageal reflux disease (GERD). This is a condition in which food or liquid travels backwards from the stomach to the esophagus (the tube from the mouth to the stomach). GERD often causes mouth alcohol to be present which will result in a high breath test result.

These and other issues are present in every Maryland DUI case. So, whether it’s a first, second or third DUI case, these issues need to be carefully and thoroughly investigated. Often, through effective trial preparation, a case can be won and jail and possible consequences are avoided.

Alteratives to Jail in Maryland DUI Cases

However, there are cases where the evidence is such that we must prepare or the consequences of being found guilty of DUI. In this regard, the most important guide I give to clients and if you take nothing else from this blog please appreciate importance of the following: “If you can present a solid plan to a judge that makes sense and the plan is already working, then the judge won’t feel a compelling need to try to fix the problem himself.”

Many of our clients have been suffering, sometimes for years with the devastating disease that is alcoholism. In fact, one of the most challenging aspects of our practice is that most of our clients facing DUI charges are incredibly successful, highly educated and wonderful members of our community.

Our clients are great parents with loving and caring spouses and have the support of family and friends. We bring these important qualities into the courtroom.

Another important rule that should always be followed is that our clients may have a problem, it may even be a significant but we never let the prosecutor define the client by the problem!

One of our objectives is to present a full three-dimensional picture of whom our client is. We always come to court with a sound and reasonable plan that appropriately and comprehensively addresses the alcohol issue. Again, if the plan makes sense, and is actually working, it becomes much easier for a judge to endorse it.

Sometimes, it becomes necessary to delay a case. We may need time to fully create and implement the plan.

We have forged effective and close relationships with wonderful organizations such as, Right Turn of Maryland, The Alcohol Program for Evaluation & Education and Alcoholics Anonymous.

We take the time to strategize and create a comprehensive program with our clients designed to address what may be significant problems. We then give the client time to fully implement and integrate the program into their lives. By the time we actually do go to court, we can demonstratively show the court that we have a credible, intelligent and transparent plan that addresses our clients issues without the need for jail.

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Hiring A Good DUI Attorney in Maryland

Hiring a Good DUI LawyerThis blog follows a prior blog about what makes for a great Maryland criminal defense lawyer. A large part of our DWI/DUI practice consists of representing people who never thought that they might themselves be charged with an alcohol related driving offense.

A lawyer that specializes in DUI defense makes the biggest difference. The reason is that the law is constantly changing. And just as importantly, the attitudes and practice styles of individual prosecutors and judges also change. It is the knowledge and experience coupled with constant contact and interaction with these players that makes a difference in the successful resolution of a client’s DUI case.

Our firm has represented thousands of people over the years and in this time we have devolved a number of guiding principles that I will address in this article.

First. Every case is unique. Often clients are initially pessimistic towards their situation. Perhaps they have met with other lawyers and were told that their case was hopeless – conviction and jail were certain.

Some lawyers, unfortunately, use scare tactics to induce clients to retain them. In this regard, their case assessment may be less than impartial. With this in mind, understanding and fully reviewing the exact facts of a client’s case is absolutely essential. The client is always a great source of telling what happened. It is the job of the defense attorney to fully and sensitively question the client. In many cases, the client may have had passengers who can provide their own perspective of what happened. Finally, there may be witnesses that with good investigation can be identified, questioned and if appropriate, subpoenaed to appear in court for the defense.

Second. Each case requires that all police reports, officer notes and any police video be obtained and reviewed. Under Maryland law, a defense attorney is entitled to police reports, investigative notes and audio & video recording of the entire traffic stop. Amazingly however, not all lawyers commit to the formal discovery process. It is time consuming and can require demand motions and sometimes discovery hearings. These materials provide a clear roadmap of the prosecutor’s case. In addition, it is important to physically review the area of the traffic stop. There are instances where surveillance video cameras have inadvertently captured an entire traffic stop.

Third. A lawyer must have a solid grasp of the relevant statute and case law. I cannot emphasize enough that a DUI lawyer must keep up with the ever changing law. Cases are constantly being decided by Maryland appellate courts with decisions that alter and modify previously prevailing positions in the law.

And now an example taken from case files of the Law Offices of Gary H. Gerstenfield:

Weaving Within Lane Leads to Traffic Stop for Suspected DUI

“John” a client I have known for many years was on his way home from an after-work social gathering. It was late; he had eaten little and had consumed in his opinion about 3 beers. John’s car, according to a Montgomery County police officer, was weaving, touching but not crossing the white lines marking the lane. The officer noted that the weaving went on for an observed distance of 1 mile. A traffic stop ensued and ultimately John was arrested on suspicion of DUI.

John holds a high tech supervisory position that requires a security clearance. An alcohol related driving conviction could cost him his job. When John met with me he was understandably concerned. I carefully reviewed the facts and noted that John was absolutely sure that the officer had told him that the stop was based on John’s weaving within his lane. A defense was quickly emerging. Would the officer agree in court that the weaving occurred solely within a lane?

The officer’s incident report would be essential. In John’s case, it formed the critical basis of our defense. True, according to the officer, John’s car did weave more than a mile. But, as the police report noted, the vehicle never left its lane.

A Maryland Court of Appeals 1999 case, Rowe v. State, held that a police officer did not have probable cause to stop the driver upon a momentary crossing of the white edge-line, to check on his benefit for failing to drive in a single lane. The Court held that the officer lacked the requisite reasonable articulable suspicion necessary to detain and search Mr. Rowe, thereby uncovering controlled dangerous substances.

At trial I came prepared to argue this case. But, as important as my legal preparation, it was equally important to appreciate the attitude of the trial judge, an individual for whom I had appeared before many times.

Initially, the judge opined that the fact that the weaving went on for more than a mile created reasonable suspicion for a traffic stop. Based upon my experience before this judge I have learned it seldom beneficial to outright disagree with him. I took a different tack.

I conceded that the officer may have had reasonable suspicion that John might not be feeling well but, weaving within a lane is not a violation of Maryland traffic law. The stop therefore would have to be based upon what used to be referred to as, “a welfare check”. In other words, the officer was making a traffic stop to check on the health and condition of the driver.

I made this argument because I had discussed this point before with this judge. I knew that he was sensitive to the fact that Maryland law had specifically found “welfare checks” as violative of the 4th Amendment, which prohibits unreasonable search and seizure. Once the judge realized that this was the basis of the traffic stop he quickly granted my motion finding the traffic stop invalid.

John was acquitted.

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The Continuing Hunt for Jimmy Hoffa

Jimmy HoffaAs a criminal defense lawyer, I am fascinated about the 38-year-old mystery surrounding Jimmy Hoffa’s disappearance in 1975 and the ongoing search for his remains.

It is all but presumptive that Hoffa’s disappearance was on orders of the Mafia. This contention is based upon the notion that Hoffa, desperate to get back into Teamster politics and relevance, was prepared to blackmail Mafia operatives.

I have never been entirely satisfied with this theory.  For one thing, Hoffa had been in prison and was effectively banned from Teamster activity.  Moreover, the Teamsters had moved on to a more corporate identity and wanted to shed its larger than life Hoffa persona.  Mafia help or not, the Teamsters by the mid ‘70’s were done with Hoffa.  A more likely but banal theory is that Hoffa himself got into debt with the Mafia and was either unwilling or unable to pay back.  Like the Teamsters, the Mafia was done with Hoffa too.

The pressing urgency in tracking down the body is no doubt due to the fact that anyone with particularized knowledge on the subject is very old and if a successful discovery of Hofffa is not made soon, the secret will remain so for the ages.

The current “tipster” of the moment is the son of gang boss Joseph Zerilli who once allegedly controlled Detroit.  Now, he’s not talking on account of the fact that he died in 1977 of natural causes. But his son, Tony Zerilli a spry 85 year old claims that Hoffa was buried in a vacant field in a suburb of Detroit.  Interestingly, Tony can only base his contention on heresy.  Tony was incarcerated in 1975.  But, credibility notwithstanding, the FBI is prepared to dig.

This will not be the first time that the Federal Government has taken serious representations regarding Hoffa’s whereabouts. Once before, on a farm in Milford, Michigan, efforts to uncover Hoffa’s final resting place resulted in a failure.

What makes Jimmy Hoffa such a curious individual is the duality that in my view defined his life.  On the one hand, his desire to create a union for truckers was truly born from an altruistic desire to enhance the quality of their lives.  But, in terms of how he would get there was through the active engagement, cooperation and entanglement of acknowledged gangsters.

Hoffa, ultimately is a tragic hero, himself the victim to the philosophy of consequentialism, that is, “The end does not justify the means”.

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Hiring a Top Criminal Defense Attorney in Maryland

google-top-lawyer-in-marylandA frequent internet search involves individuals typing into the Google browser the following: Top Maryland criminal defense attorney.  But what exactly are we seeking?  The truth is most people have no idea what qualities make for a good lawyer and they are hoping that by making this type of inquiry, someone else, perhaps with greater knowledge and experience will have done the homework and created a ready list of the best attorneys in town. The purpose of this blog is to identify what qualities an individual should be looking for when hiring a criminal defense attorney.

While there are many factors that make for a good lawyer, in broad brush strokes, there are only 3 items that need to be addressed.  I will explore each of the three in detail.  When meeting with an attorney, keep these 3 in mind:

  1. First, the lawyer must be hard working.
  2. Second, the lawyer must be passionate about his clients.
  3. And finally, and this is the one that always surprises people: the lawyer is always looking for luck in every case.

Often people think, “I want a smart lawyer!”  That’s easy and therefore largely meaningless.  In order to be a lawyer, a person somehow managed to obtain a college degree, score well on the Law School Aptitude Test (LSAT) and graduate from an accredited law school.  The final hurdle, and the most challenging was that he had to pass a state bar exam.  If a person can do all that, he or she is smart, or at least, smart enough.  So intelligence, as a distinguishing factor, does little to differentiate one lawyer from another.

But some lawyers are lazy.  They rely on their acquired skill set but otherwise shoot from the hip.  The first analysis of a case is their only analysis of the case.  If their one strategy falters, they and their client are done.  The difference being the lawyer gets to leave the courtroom the same way as he came in; often the client, not so much.

So, with this in mind, let’s explore the first item.  A lawyer must be willing to work hard.

attorney_garyHard working lawyers follow certain rules:  They listen to their clients and do not interrupt.  They take notes, but not obsessively.  Hard working lawyers don’t brag about past exploits.  Hard working lawyers do not need to self-aggrandize. It doesn’t matter how many times a lawyer has handled a particular case, he always examines and reads the relevant statutes and case law. After all, law is not static.  Things are ever changing – sometimes for the good and often for the bad.  A good lawyer strives to keep up.  Therefore, a top criminal lawyer worth his salt is always engaged with his bar association and attending as well as conducting legal seminars.

Now, for the second item, being passionate about clients.  When people are seeking help from a criminal defense lawyer, they are generally either at the lowest point in their lives or certainly, at least feeling like they are at their lowest point. A criminal defense lawyer is not a sociologist. His sole concern is the interest of his client.

A frequent question that I am asked is how can I represent a person I know to be guilty.  The truth is my opinion is irrelevant.  I cannot care.  A legitimate justice system depends not on the prosecutor.  Nancy Grace apparently was a prosecutor.  And to some extent, it depends less on the court.  A system of justice that is truly honest and legitimate relies upon the integrity, idealism and effectiveness of its defense attorneys.

Recall the classic novel we all read in school: Harper Lee’s To Kill A Mockingbird. When Atticus Finch accepted the representation of “Tom”, a black man accused of raping a young white girl, he had no idea whether Tom and committed the rape. He didn’t even consider the issue.  He responds to his daughter when she asks, “your defendin’ him, then why are you doin’ it?” Atticus explains, “For a number of reasons the main one is, if I didn’t I couldn’t hold up my head in town, I couldn’t represent this county in the legislature, I couldn’t even tell you or Jem not to do something again.”

Consider countries like China.  Does anyone really believe that a criminal conviction from a Chinese court is truly legitimate?  After the Iranian Revolution, trials were conducted at midnight.  Executions followed at dawn and notices of the condemned were posted in the morning.  The accused had no lawyer.  The tribunals were intended to terrorize and immobilize the people.  It worked.  In the absence of zealous and passionate criminal defense lawyers, our democracy would quickly devolve into tyranny.

And now, the third item; luck.  Nothing sets fear in the hearts and souls of clients as when I say, “we will be looking for some luck along the way”.  By nature, I am no gambler.  I subscribe to the rule of tireless inquiry, hard work and being conscientious.  I do not expect manna from heaven.  There are few shortcuts in defense. However I’ll take a good break in a case whenever I find one.

The ancient Roman statesman and philosopher Lucius Annaeus Seneca wrote, “Luck is what happens when preparation meets opportunity”.  A defense attorney is always looking at the government’s case in terms of its frailties.

The best criminal defense attorneys are masters of the Rules of Evidence and criminal procedure.  The government is obligated to establish each and every element of a crime.  Failure to do so is fatal to the prosecution.  A good practice tip is that whenever a prosecutor uses the term “totality of the evidence”, either in their closing or in trying to survive a motion to suppress, it is a ringing endorsement that one or more elements was not satisfied.

In many cases, there are opportunities that are only exposed after careful and tedious investigation.  Perhaps they may initially appear as something relatively minor, but recognition and exploitation of these opportunities can generate huge benefits that lead to acquittal for your client.

And now an example taken from case files of the Law Offices of Gary H. Gerstenfield:

An Allegation of Child Sex Abuse

“George” was accused by a neighbor of molesting her 4-year daughter.  I found the accusation curious as George worked during the week in construction.  He left very early in the morning and returned late in the evening.  His wife who baby-sat the child was the sole caretaker.  I also observed that George and his wife had 3 children, all girls, aged five, seven & ten.  The girls were happy, well-adjusted and good students in school.  They were all quite fond of their father.  There was no indication that they had been abused.

There was no physical evidence that supported the prosecutor’s case.  In fact some months after the allegation, the child was unable to explain what, if anything, had actually occurred with George.  However, a county social worker had interviewed the child and had prepared a report containing numerous statements.  The social worker would be the prosecutor’s star witness.  Notably, the social worker had testified in previous cases involving allegations of child sex abuse.  She had a reputation of being effective.

These cases are always difficult with severe consequences for any misstep on my part.  In preparation for trial, I confirmed her credentials.  What I found was a bombshell.

It was true that she had graduated from an accredited school with a master’s degree in social work.  But, she had never passed the examination through the Sate’s Association of Social Work Boards.  Simply put, she was unlicensed. She called herself a social worker, which under Maryland law constituted a misdemeanor crime punishable by up to 90 days in jail.  Only a licensed social worker can use the title.  The same rule applies to lawyers.  A law school degree does not impart the title – lawyer.

I filed a motion to strike her testimony.  The motion was granted and without their star witness the prosecutor ultimately dropped the case. For purposes of this discussion, I have simplified George’s case.  There were in fact many motions and issues presented throughout George’s defense.  Seneca would agree though that George’s case benefitted from luck.  By careful scrutiny of the prosecutor’s case, knowledge of relevant law, we were able to identify opportunity.

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Do I Have To Talk With Police?


talk-to-policeA recurring and troubling theme in my practice is that clients come to see me seeking advice after having spoken with police. In most cases, they have given both recorded and written statements. In some cases, my initial meeting comes after my clients have had multiple sit-down conversations with investigators. On several occasions, my introductory meeting takes place in a jail cell.

Once it has become apparent that the curtain of hopeful denial has finally lifted, prospective clients seek help. On such occasions I attentively listen, remind myself not to become angry, and offer the most basic of advice. No more talking to police without the presence of counsel. Belatedly, I tell them as politely as I can muster, “Shut up, you’re not helping”. But often, too often, the damage is done.

The message I wish to get across is simple and easy to remember. I will explore the details momentarily. But, if you get nothing more from this blog than this and if you truly get it, read no further. The rest as I said, is mere detail.

Here is the message: If you are the target in a criminal investigation, or if you think you might become the target in a criminal investigation, do not speak with an investigator without having your criminal defense lawyer present.

It is so simple. You’re willing to cooperate, you’re being nice, heck, you can sing Kumbaya around a campfire with police officers for all I care. But, you will not, absolutely, under no circumstances, answer questions regarding anything without having your criminal defense lawyer present.

Here is an important point on the matter that surprises most civilians. Police officers have a “Police Officer’s Bill of Rights ”. It commands that in questions of wrongdoing a police officer cannot be questioned for 48 hours. In other words, police officers enjoy greater protection from investigative techniques than the rest of us. And why? Because police officers belong to very effective unions who look out for the rights of their members. And police unions know, that in a moment of extreme stress, people, including police officers, say things that later they regret.

Now the why. Why do people talk to police officers when they have been advised that, “Anything you say can and will be used against you”.

The FIRST reason is that it’s surprisingly hard to keep quiet. We’re Americans. It is part of our psyche. As a people, we proud and arrogant. If someone asks us a question, we are naturally disposed to answer. Even if by providing answers we only worsen our situation.

The SECOND reason is fear. Police officers go to school to learn investigative techniques. Among those techniques is the art of questioning suspects. And police officers are good at it. Remember, it’s their job, getting people to talk. Do not succumb. Do not participate, simply invoke your right to counsel and say nothing more.

The THIRD reason is a false sense of control. “I’ll tell them only what I want them to know. Or, “I’ll lie to them, and send them in a wrong direction”. My favorite is when clients say, “look, I was there, but I had nothing to do with it.” In sex crime cases, the most popular statement is, “Yea, we had sex, but it was, ya know, consensual”. This is followed by the second most popular statement, “No, I did not have sex with her”. The later statement didn’t work with President Clinton, and it doesn’t work in a criminal investigation.

The FOURTH reason is urgency. Police exploit it but it’s also presumptive. Questioning appears so formal. This is your moment. Everyone wants to know what you have to say. You’re suddenly important. The investigation can go no further until you answer questions. All of this is total nonsense. Do what the police officers do. Keep your mouth shut until you consult with a lawyer.

A typical criminal investigation can take anywhere from months to years. Your demand and insistence to consult with an attorney causes no real delay.

The FIFTH and final reason is the foolish and misconceived notion that if you refuse to speak to police officers it reflects consciousness of guilt. You wouldn’t be the target if they didn’t think you did it. Do not attempt to extricate yourself. Remember, you’re willing to talk; you just want your lawyer present.

And now some examples taken from case files of the Law Offices of Gary H. Gerstenfield:

The Banker and the Transgender Prostitute

A young and married credit union manager found himself being questioned by police officers in connection with a recent break-in at the local credit union.

The theft had taken place at night and the alarm never sounded. Money was missing. The police concluded that it was an inside job. The manager had the keys, the codes and the ability. He was suspect number one. Interestingly, the exact time of the theft was known. It was recorded electronically. What the police wanted to know from the earnest appearing manager is his exact whereabouts at 11:00 p.m., Sunday evening.

An investigator contacted the manager and invited him to drop by the police station to get some additional information on the credit union’s security system. This was of course a ruse. The police already had that information. The manager was led to an interview room and told to have a seat. He was left alone for almost an hour. This, by the way, is a standard investigative technique. Leave a suspect alone for a while to contemplate and worry about his situation.

The questioning began friendly enough. But soon the interest turned to where the manager was on Sunday evening around 11:00 p.m.. His answer appeared credible. He was at home, then he got hungry and around 10:30 went to a nearby 7-Elleven for a chilly dog. His story was confirmed by his wife.

What the manager didn’t realize and what the police were banking on was the fact that all 7-Ellevens have $50,000 worth of surveillance equipment watching $50.00 worth of Twinkies!

The police obtained the camera footage for the relevant time period. Attentively, they watched the video. And no banker was to be seen. The banker lied. Conclusive proof of guilt. He was arrested and charged with felony burglary. His career and reputation all but destroyed.

The truth was that on that particular Sunday evening at 11:00 p.m., the banker was nervously walking into the local Holiday Inn to see a certain transgender prostitute. Interestingly enough, she had walked into the same hotel only 10 minutes earlier.

All of this was also captured on the hotel’s internal security system, which easily rivaled the quality of the convenience store’s surveillance system. Approximately an hour later the same banker could be observed exiting the hotel lobby followed by the prostitute, again by about ten minutes.

Ultimately, with the assistance of the hotel surveillance video, charges were dropped. But, the banker’s unfortunate transgression, as it were, was out. So too was his marriage and job.

If the manger had simply demanded the presence of counsel, the case would have been handled for more delicately. The police were interested in solving a burglary, not in exposing the personal life of a possible suspect. A knowledgeable criminal defense attorney would have been instrumental in clearing his client without traumatically destroying his career and reputation.

The Soldier and His Best Friend’s Girlfriend

As is often the case in allegations of sexual assault, alcohol plays a prominent role. In this case it was two bottles of wine. A romantic interlude followed by painful regret led to a terrible accusation.

“Mike,” affable and rugged, was an E5 in the U.S. Army. He was a veteran of the 2nd Iraq War. He was house sitting for his best friend who purchased the small home, the enjoyment of which was interrupted by a recent deployment to Afghanistan.

The friend’s girlfriend showed up one evening bearing gifts of wine along with her company. Both individuals were young, attractive and lonely. The obvious transpired. Regret, at least on the part of the girlfriend followed.

Mike received an unexpected call from a police officer three days later wanting to discuss something with him. The officer assured Mike that he wasn’t in trouble and the purpose of the meeting would be explained when Mike met him at the police station. Although the telephone conversation appeared ominous, at least initially, Mike prepared to drive to the police station.

Mike had an older sister and fortunately for Mike, his sister happened to be a paralegal. She lived in California but he decided to call her. His sister was concerned and told him to first speak with a lawyer. Mike didn’t know any lawyers. The sister didn’t know any lawyers in Maryland but she did know how to use the Internet.

As it happened, she contacted me. After explaining what she understood of the situation, I quickly informed her that I wanted to speak with her brother – and right away. The next call I received was from Mike.

Mike never made it to that meeting with the police officer. Instead, I did. Later I subpoenaed cell phone records as well as the video surveillance from the local beer & wine store where the bottles were purchased. Through the cell phone records, we discovered a friend who the girlfriend had called that evening in whom she confided what had happened and most importantly, that everything that did happen was consensual.

Mike was never charged. The documentation and the friend’s statement satisfied both the police and the prosecutor. Mike remained in the Army for another four years. Later he graduated from college using his G.I. Bill. He works in finance and he has no criminal record.

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Maryland DUI License Suspension

Understanding the Impact of a DUI Charge to your Maryland Driver’s License

The purpose of this blog is to provide and easy guide in explaining the driver’s license ramifications of being charged with a DUI. For additional information, please visit our Maryland DUI website.

maryland-drivers-licenseA somewhat unique aspect of Maryland law is that the Maryland Motor Vehicle Administration (MVA) is solely and exclusively in charge of a Maryland issued driver’s license and driving privileges within the State of Maryland by non-Maryland drivers.   While it is beyond the scope of this blog, it is noteworthy that other states use the term “Department of Motor Vehicles” which, among other things, denotes less authority.

Collateral Consequences of DUI

When a police officer makes an arrest for DUI, he actually is working under a statutory scheme by which he is performs services for two different agencies.  First, he is operating as a police officer with the attendant authority to make an arrest.  But, he also acts as an agent of the MVA.

And, as an agent of the MVA, he is authorized to confiscate a Maryland driver’s license and issue a temporary paper license.  The paper license also includes a notice of proposed suspension.  The officer cannot confiscate a non-Maryland license.  However, he will issue a notice of proposed suspension to a non-Maryland licensed holder.  The effect of the proposed suspension to a non-Maryland driver is limited to the jurisdiction of Maryland.

Breathalyzer-testShould I Consent to Breathalyzer?

In order to take this action a police officer must assert under oath that he believes that there are “reasonable grounds” that a driver is under the influence of an intoxicant.   The officer must give the driver a written form that explains the rights in taking or refusing an intoximeter test for alcohol.  (The breath test is given at a police station and can be admissible as evidence of intoxication at a criminal trial and administrative hearing.  This differs from a preliminary breath test (PBT) sometimes given at the roadside, which is inadmissible).  At this point, the driver either elects to provide two breath samples or refuses. Note: you will not lose your license for declining to take the preliminary breath test – only refusal of the breath test at the police station will result in Maryland license confiscation and order of proposed suspension.

Consequences of failing or refusing the breath test:

Submitted   to the test and: Blood Alcohol Content 0.08 though 0.14
  • 1st offense – 45-day suspension
  • 2nd or subsequent – 90-day suspension
Submitted to the test and   failed – Blood Alcohol   Content 0.15 or more:
  • 1st offense – 90-day suspension
  • 2nd or subsequent offense –   180-day suspension
Operating a commercial   motor vehicle at the time:
  • 1st offense – 1-year Commercial Driver’s License (CDL) disqualification
  • 2nd or subsequent offense – lifetime CDL disqualification
Operating a commercial   motor vehicle carrying hazardous materials at the time
  • 1st offense – 3-year CDL        disqualification
  • 2nd or subsequent offense – lifetime CDL disqualification

So, should an individual arrested for suspected DUI take a breath test?  The answer is mixed.

If a person is stone cold sober or has had only a small amount of alcohol, then it is advisable to take the test.  If a person is highly intoxicated, probably little good will come from a high breath test result.  The devil is the “in-between” situation.

Perhaps, it would be instructive to look at the options resulting from a breath test that exceeds .08 but is less than .15.  Once a person has been arrested and elects to take a breath test that exceeds .08, a Maryland issued license will be confiscated.  However, a hearing opportunity is available.  At hearing, presided by an administrative law judge, a restrictive license can be obtained.

However, if the breath test results in a .15 or higher, no restrictive license is permitted.  Rather, a 1-year interlock option is all that is available.  Interestingly, this is the only option on a refusal or a second offense DUI.  The difference lies only with the length of suspension.  But, for most drivers, any extended license suspension is unacceptable.  In other words a 90 day or 120 day suspension ultimately makes no difference.  Neither is acceptable.  So, if an individual believes that that his “in-between” is likely higher then lower or this is more that a first offense, refusal may be the better decision.

The Interlock Exception for Employment Use of Vehicle

DUI_interlock_deviceA reoccurring issue is where an individual must operate an employer’s vehicle as part of their job.  The MVA permits an interlock exception for employment.  However, the MVA still expects that the personal vehicle will have the interlock installed and that that vehicle will average 50 engine starts per month.

A regular judge cannot “take away your license”; nor can a judge extend a work privilege license.   The judge issues a sentence and depending on the nature of the conviction, the MVA imposes points and can take administrative action against a Maryland license.  The MVA will also notify the National Driving Registry of convictions to non-Maryland license holders and pursuant to a cooperative agreement among the participating states, action may be taken by the issuing state.

Challenging A Drivers License Suspension

This whole category of impact can be viewed as collateral effect. The Court imposes a conviction, and the MVA takes administrative action.  In other words, a person can be found guilty of DUI and legally get in their car and dive home.

Once the conviction is received by the MVA however, notice will be mailed to the Maryland driver advising that a suspension or revocation will result unless a hearing is timely requested or under certain circumstances an agreement to participate in the interlock program is made.  The notice is time sensitive.  Action must be taken or the right to a hearing will expire.  If you’re facing license loss due to a DUI conviction, never procrastinate: call our office immediately and speak with an experienced Maryland DUI attorney.

An important point is that if an individual is convicted of a DUI, make sure that the address with the MVA is current.  MVA mail is never forwarded – even with an active forwarding order with the US Mail.



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Maryland Court of Appeals Strikes Retroactive Sex Offender Registration

In John Doe v. Department of Public Safety and Correctional Services, issued March 4, 2013, Maryland’s Court of Appeals strikes down one of the most controversial components of the Sex Offender Registration Statute.

Maryland’s highest court, in a stunning rebuke, overturned the retroactive application of its Sex Offender Registration Statute.  The decision in large part is based upon a broadening of the Court’s interpretation of Article 17 of the Maryland Declaration of Rights, which prohibits the imposition of ex post facto laws.

In so doing, Maryland joins Alaska, Indiana, and Ohio in finding that requiring registration for sex crimes committed prior to the enactment of the sex offender registration statute is unconstitutional.

The prohibition against ex post facto laws essentially means that the Maryland’s Constitution specifically forbids punishment of acts committed in the past whose conduct is subsequently declared criminal.

The petitioner, John Doe, was a junior high school teacher who during the 1983-84 school year had inappropriate sexual contact with a thirteen-year old student.  Approximately 20 years after the incident, the student contacted the law enforcement and in 2005, the former teacher was charged with various sex related offences.

In 2006, a binding plea agreement was reached in which, among other things, the former teacher pled guilty to a single count of child sex abuse.  The binding plea agreement called for a period of incarceration and supervised probation upon release but did not address registration as a sex offender.

During the time period that the crime was committed, there was no sex offender registration law.

The first sex offender registration statute was enacted in 1995 and was applied prospectively.  However, in future amendments to the statute, notably in 2001 and again in 2009 a much larger net of mandated registration came into existence.  The amendments required individuals convicted of committing sex crimes prior to its enactment to register of sex offenders.

One of the most important points raised in the John Doe decision is the Court’s reliance solely upon Maryland law.  The Court noted, “[w]e conclude. . . that requiring Petitioner to register as a sex offender violates Article 17’s prohibition against ex post facto laws; thus, we need not, and do not, address whether requiring Petitioner to register violates the prohibition against ex post facto laws under Article 1 of the federal Constitution.”

Among the considerations given in the decision were the principles of fundamental fairness and the right to fair warning, which the Court observed, is embodied in Article 17.  The Court noted the petitioner would have no way of knowing that his conduct, no matter how reprehensible would later lead to mandated registration.

A significant recognition in the Court’s decision was that the sex offender registration statute is a form of punishment imposing, “significant affirmative obligations and a severe stigma on every person to whom it applies”.

Another important aspect of the ruling is that Maryland applies the prohibition against ex post facto laws more broadly than under Federal law.  Under Maryland law, the analysis examines whether a statute that has been retroactively applied, has disadvantaged an individual.  Under Federal interpretation, an individual must show that the characterization of the crime has been altered.

A compelling observation in this decision is that the Court of Appeals clearly has held that required registration as a sex offender is a form of punishment, an opinion which is in direct opposition to recent decision by the U.S Supreme Court.

If you have been unfairly required to retroactively register in Maryland due to the new laws enacted in 2009 and 2010, please contact our office to schedule an immediate consultation. Attorneys Gary H. Gerstenfield and Rebecca Cosca are experienced litigators in sex crimes defense, and will fight to remove you from the registry.

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No More Death Penalty in Maryland?

Current Death Penalty Laws in Maryland

When a defendant is convicted of murder in the first degree in Maryland, the prosecutor may ask the jury to issue a sentence of death. Maryland law defines murder in the first degree as murder with one or more of the following aggravating circumstances:

  • A deliberate, premeditated, and willful killing.
  • Committed by lying in wait.
  • Committed by poison.
  • Committed in the perpetration of or an attempt to perpetrate arson, burglary, carjacking, escape from prison, kidnapping, mayhem, rape, robbery, sexual offense, sodomy, or bomb-making.
  • If the offender willfully, deliberately, and with premeditation intended the death of a law enforcement officer.

Death sentences in Maryland are carried out via lethal injection in a three-phased approach: 1) an anesthetic drug, 2)  a paralytic drug, and 3) a drug that stops the heart called potassium chloride.

False Convictions and Death Penalty

Kirk Bloodsworth was the first death row inmate in the country to be exonerated by DNA testing.  In 1984, he was sentenced to death for allegedly raping and murdering a 9-year-old girl in Maryland.  Ultimately, Mr. Bloodsworth was exonerated and released in 1993 after DNA evidence was made available.  He then began a crusade to put an end to the death penalty in the United States.

As of September 2011, 273 people including 17 death row inmates, have been exonerated by use of DNA tests. There is a growing awareness among lawmakers that wrongful convictions are a reality in the criminal justice system, and many states have repealed death sentences.

Maryland Planning to Repeal Death Sentence Law

In January of this year, Maryland Governor Martin O’Malley stated that he will make repealing the State’s current death penalty law. Under his proposal, Senate Bill 276, life-without-parole would become the highest level of punishment. Although there is some opposition to the bill, it will likely pass. Two amendments to the bill were proposed, but were voted out: these were 1) allow the death penalty only if there is DNA evidence and 2)allow the death penalty if a person commits more than one murder in the first degree.

Fighting for Your Freedom

Laws were never perfect, nor will they ever be. The same is true with our criminal justice system. When someone is charged with a serious crime, this becomes more apparent to them than ever. Unfortunately, innocence alone is sometimes not enough to acquire a not-guilty verdict from a jury. Never chance your life if you’re charged with a crime – immediately contact an experienced Maryland criminal defense attorney.

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What to Wear For Court

One of the most frequent discussions that I have with my clients is they should prepare for appearing in court.  It is a fact that people do judge us at least temporarily by our initial appearance.  Judges do their best to resist this temptation but they are still human.  So, bearing this in mind, dressing appropriately when appearing in a courtroom is an important opportunity to make a helpful and constructive statement about you.

The first thing to appreciate about clothing and general grooming are that they create interpretive clues from which strangers can deduce aspects of character and viewpoints.  Importantly, our outward appearance can even suggest aspects of character.  So, even without testifying, a jury or judge can begin drawing conclusions about an individual even before that person takes the stand and gives sworn testimony.  Dressing and grooming in a specified and determined way is not “gaming the system”, it is rather a relatively easy way to tell strangers what you value and who you are as an individual.

Often, for reasons purely of strategy, a client facing criminal charges may elect to exercise his Constitutional right not to testify in his own defense.  There are multiple reasons for reaching this decision that may well have little to do with questions of guilt or innocence.  While a fuller discussion is beyond this scope of this article, the important point is that in a situation where an individual is not going to testify, the way in which he presents himself in court takes on a far more important role.

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Charged Versus Arrested

Being “charged” is the initiating process in which an individual is accused of committing a violation of law.  It is basically the part where a person is formally accused.  The violation can be anything from a minor traffic infraction, such as speeding to something as serious as murder.  Police officers have the authority to file charges independent of a judge or court commissioner.  But, there are limitations.  Misdemeanors for example must be committed in the presence of a police officer.  In certain cases, the police will issues a criminal citation in lieu of arrest.  This happens most frequently with minor traffic violation and shoplifting.  The individual is still charged with a violation of law, but is not arrested.  In certain circumstances, such as with shoplifting – which is a type of theft, a conviction could later result in a period of executed incarceration.

Being arrested is an involuntary loss of liberty in which a police officer takes custody of the individual.  Police must comply with regulations in which an arrested person shall be taken before a commissioner within a prescribed period of time for  a determination of bond conditions.  Certain types of crimes permit the police officer to make discretionary release independent of a commissioner.  For example, drunk driving charges, while still quite serious, provide for discretionary release from the police station.  Typically, an arrest signifies that the charge is serious and that a conviction could result in a period of executed incarceration.

Being charged also means getting a lawyer!  Being accused of a crime means that you now have a problem and you need professional help to navigate the situation.  A good criminal defense lawyer will explain the charges and learn your side of the story and help you respond to the charges appropriately.


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