Articles Posted in Continuing Legal Education

Forty years ago today I walked into a courtroom in Upper Marlboro, Maryland with my mentor, Alan J. Goldstein.  I had just gotten back from my honeymoon in the Greek Islands, completely jet lagged and sat down at counsel table.  Our client was charged with conspiracy to commit murder.  Alan, who had a wicked sense of humor, and knew my condition, stood up and said, “It is my privilege to introduce to the Court Leonard Stamm, the Court knows him as he clerked across the hall last year.  He is now an associate in my firm, and he is going to argue today’s motions!”  And he sat down.  And everyone looked at me and Alan said “Get up.”  Then the judge and prosecutor  motioned and said “Get up, get up.” I was shocked.  I knew nothing about the motions.  I slowly started to rise not knowing what I was going to say when the courtroom exploded into laughter and I sat back down.

In the 40 years since I have learned to respect the rule of law and to practice civility towards clients, witnesses, adversaries, colleagues, jurors and judges.  I have been blessed to have seen firsthand how critical these two things, respect for the rule of law and civility, are to our society being able to function as a representative democracy, and the checks and balances that give power to the people are to the preservation of our way of life.  I have seen that it is possible to zealously represent the interests of my clients, while still having respect for prosecutors, judges and police officers.  It is not only possible, but necessary, to be able to disagree without being disagreeable.  The ability to compromise to settle disputes and to go to trial are hallmarks of our criminal justice system, in order to achieve the goal of treating everyone fairly, and with dignity and respect to achieve a just result.

In the presidential election this year, unlike any other year, respect for the rule of law and civility have been challenged like never before.  We have witnessed the take over of one political party by a presidential candidate who has no respect for the rule of law and constantly demeans and insults anyone and everyone he disagrees with, the press, scientists, doctors, politicians, veterans, civil servants, judges, prosecutors, and women in the most vile and pernicious ways.  He has been convicted of fraud, and judged liable for sexual assault.  He is ignorant of many of the issues needed to run a country, and lacks the decency and empathy needed, but could care less.  It seems as if cruelty is the message.  He has copied Stalin, calling the press “the enemy of the people.”  And he has copied Hitler, calling immigrants “vermin.”  His lunatic rants remain unchallenged and unnoticed by the mainstream media.  He has done something in politics that cannot be done successfully in court, he has routinely attempted to change the facts and evidence, and he has lied and doubled down on his firehose of lies to a breathtaking degree.  More frightening is the acquiescence and support of party leaders and judges who bend the knee, and repeat the lies, afraid or unwilling to tell the truth.  Shockingly, he may win in November, even after having incited a mob to attack the Congress and threaten the lives of the Vice President and Speaker of the House in support of the Big Lie that he won the election he fairly lost, setting back years of progress making this a more perfect union.  Ben Franklin said “It’s a Republic, if you can keep it.”  I hope we can.

I recently handled a sentencing for a client of mine for driving while impaired (DWI).  Under Maryland law, one year of ignition interlock is required if you are convicted of the higher offense, driving while under the influence of alcohol (DUI).  However, the relevant statutes do not require it for DWI, unless the “trier of fact finds beyond a reasonable doubt that the person refused to take a test arising out of the same circumstances as the violation.”  More often than not, in Maryland, a driver who refuses a breathalyzer test at the time of arrest if found guilty of anything, will not be found guilty of the higher offense DUI, only the lower DWI.  So the question is what does this phrase mean, that the “trier of fact finds beyond a reasonable doubt that the person refused to take a test arising out of the same circumstances as the violation.”

The answer can be found in Wadlow v. State, 335 Md. 122, 642 A.2d 213 (1994).  In Wadlow, the indictment charged the defendant with possession with intent to distribute more than 448 grams of cocaine but it did not refer to the sentencing enhancement under Art. 27, § 286 (f).  Also, the jury was never asked to decide the amount of cocaine.  As a result the Maryland Supreme Court reversed the part of the sentence that relied on possession of more than 448 grams.  The Court said:

In Maryland, however, we have generally drawn a distinction between sentence enhancement provisions that depend upon prior conduct of the offender and those that depend upon the circumstances of the offense. In the former situation, involving recidivism, we have made it clear that determination of the requisite predicate facts is for the sentencing judge. See Maryland Rule 4–245(e) (“[T]he court shall determine whether the defendant is a subsequent offender….”). The State must give timely notice to the defendant of its intention to seek enhanced penalties because of one or more prior convictions, but that notice is not filed with the court until after the acceptance of a guilty or nolo contendere plea, or after conviction. The applicable Rule also provides that “[t]he allegation that the defendant is a subsequent offender is not an issue in the trial on the charging document….” Md.Rule 4–245(d).

On May 5, 2023, the Maryland Criminal Defense Attorneys’ Association is holding its 19th Annual Advanced DUI Defense Seminar at the Doubletree Hotel in Linthicum, Maryland.

The seminar, organized and run by Leonard R. Stamm in conjunction with the MCDAA will feature presentations by experienced lawyers as well as an expert chemist.  The schedule is shown below.  If your lawyer attends this program, he or she is getting the most up to date training available for how to handle DUI cases.

MCDAA’S 19th Annual Advanced DUI Defense Seminar 

Today, August 2, 2022, I read an op ed in the Washington Post by an Indian woman, Aaditi Lele, who recently became a US citizen who is a student at Vanderbilt University.  It is worth sharing.

Less than two months ago, I took the oath of naturalization to become the first American citizen in my family. I watched as new Americans from dozens of countries stood together, speaking in unison of our commitment to “support and defend the Constitution and laws of the United States.” But in the wake of multiple decisions by a Supreme Court that seems intent on rolling back Americans’ liberties, I’m left wondering what warped interpretation of the Constitution I’ve committed to defend.

From the day my family moved from Pune, India, to the United States a decade ago, when I was 8 years old, I’ve been bombarded with glorified images and slogans about the American Dream — “Land of the Free!” — and encouraged to embrace this nation’s ideals. I came to believe this messaging. The idea that pursuing citizenship would help me secure my rights was not lost on me, so I did exactly that.

On March 21, 2022, the Director of the Maryland State Police Forensic Sciences Division notified the State’s Attorney co-ordinator for Maryland that the MSP lab would cease doing blood alcohol testing because the accrediting agency determined their testing procedure violated scientific requirements for blood alcohol testing.  Read the letter here.  MSAA BAC Letter_031522

On April 13, 2022, Clarke Ahlers and Serge Antonin released their podcast, the Black and White and thin Blue Lines, https://lnns.co/bZlMhf7g6KX , with special guests Lenny and Michael Stamm where we discuss the MSP lab fiasco, and wonder why it took almost 6 months to tell anyone about it.

If you have a DUI charge and a blood alcohol test, call 301-345-0122 for a free consultation.

Every state prohibits drunk driving.  Every state also acknowledges that it is legal to drink alcohol and then drive if the alcohol consumed does not impair one’s abilities.

The amount of alcohol that a person can drink in an evening and be safely under the legal limit varies from person to person.  The main factors of weight, number of drinks, size of the drink, concentration (proof) of the alcohol, gender, and time of drinking all affect the outcome.  In the 1930’s a Swedish scientist named Erik Widmark came up with a formula to calculate blood alcohol concentration (BAC) based on these factors.  Using Widmark’s formula, it is possible to estimate BAC.   In these calculations, there is a rough equivalence between a 12 oz. beer, and 6 oz. glass of wine, and a mixed drink containing 1.5 oz. of alcohol.

A woman will have a higher BAC than a man of the same weight because alcohol is more concentrated in the cells of a female.   Since many women weigh less than many men, this difference is exaggerated with most people.

Yesterday, the Supreme Court ruled that the injunctions against enforcement of Trump’s travel ban, that had been upheld by the Fourth and Ninth Circuits would be upheld in part and reversed in part.  Trump claimed this was a victory, but a careful reading of the majority opinion reveals otherwise.  The plaintiffs in the cases argued for a stay because the travel ban would cause irreparable injury to them and by implication, persons who were similarly situated.  The parties who claimed irreparable injury were parties who had family members, friends, and students coming to the US.  Foreign nationals who had no connection with anyone in this country did not bring the lawsuit, and have no constitutional right to come to this country.  In a sense the Supreme Court basically said that anyone that claimed irreparable injury and those similarly situated (“who have a credible claim of a bona fide relationship with a person or entity in the United States”) could not be barred from entering the country.  To the extent that the lower court’s injunctions covered parties not involved in the lawsuit, in essence, they were overbroad.  Essentially all of the plaintiffs prevailed in the Supreme Court as to their interests.  Trump prevailed against foreign nationals who were not active in the litigation.  In other words, Trump lost to no one initially, and then prevailed over them.  Everyone who sued Trump won at the injunction stage.

Last week, on March 22 and 23, 2017, the National College for DUI Defense and Texas Criminal Defense Lawyers Association successfully concluded their jointly sponsored annual Mastering Scientific Evidence seminar in New Orleans.

Speakers included Robert Hirschhorn on Winning Voir Dire in Breath, Blood & Accident CasesAmber Spurlock on Mining for Gold in Blood Discovery: Obtaining What You Need & Using It To WinDonald Bartell on Successfully Defeating Hospital Blood Test Cases, Dean Jim Nesci on The Cure for Bad Breath 3.0Alan Wayne Jones, BSc, PhD, DSc on Over 40 years and 400 Published Articles in Alcohol Research: Pushing Science to the LimitsRobert J. Belloto Jr., R.Ph., M.S.2, Ph.D. on Prescription Medication & Alcohol: Interaction and Metabolism – Determining Therapeutic v. Non-therapeutic Levels, Alfred E. Staubus, Pharm.D., Ph.D. on Breath Testing: Reported Measurement of Uncertainty for Various Evidential Breath Testing Machines and Aspects of the Biological Variability, Donald J. Ramsell on Method Validation And Admissibility Of Forensic Alcohol And Drug TestsAndrew Mishlove on Blood Testing for Drugs: Methodology of How It’s Done & Success Challenges, Dr. Jimmie L. Valentine on Exposing False Positives in Drug Testing, Terry A. Wapner on Affecting the Breath Test Results – LPR vs. GERD, and Steven W. Rickard on Winning with Speed, Distance & Time.

StammJones-2-225x300Among the speakers listed above was A.W. Jones, the leading expert in the world on blood and breath testing with over 400 published articles, who answered questions from Leonard R. Stamm regarding calibration of breath test equipment and calculating uncertainty.  With respect to calibration, Dr. Jones opined that where a state has different levels of culpability carrying different punishments, such as Maryland, where the Motor Vehicle Administration suspends driver licenses for test result of 0.08 or above but less than 0.15 and for a test result of 0.15 and above, that the state should calibrate its breath testing equipment at both levels.  This is important because Maryland only calibrates its breath test equipment at 0.08.  Dr. Jones also stated that there is currently no accepted protocol for determining uncertainty.  Dr. Jones preferred method for eliminating uncertainty is to take the mean of two measurements and deduct 15% of the mean to attain a certainty of 99.9%.

The National College for DUI Defense (NCDD) and the National Association of Criminal Defense Lawyers (NACDL) just wrapped up their annual Las Vegas seminar.  As usual, it was well attended and the presentations were very informative.

The conference featured presentations on Thursday, September 22, on cross-examination by Jim Nesci; accident reconstruction by Steven M. Schoor; succeeding without an expert by Tommy Kirk; and, the psychology of winning by Allen Fox, Ph.D.  The conference continued on Friday, September 23 with presentations on case law update by Don Ramsell; NHTSA’s ARIDE program (Advanced Roadside Impaired Driving Enforcement) by Tony Palacios; preparing for direct and cross of experts by Virginia Landry; ethics by Jim Nesci and nine other regents; gas chromatography for jurors by Suzanne Perry, M.Sc.; closing arguments by Joe St. Louis and Tommy Kirk; field sobriety test facts and fallacies by Tony Palacios; and, prescription medication issues by Fran Gengo, Pharm. D., Ph. D.  The conference concluded today with presentations on closing argument by Tommy Kirk; cross of the standardized field sobriety tests by John Hunsucker (for attorneys with 1-5 years experience) and by Don Ramsell (for attorneys with over 5 years experience); analyzing a DRE facesheet and narrative report by Steven Oberman and Tony Palacios; breath testing by Jim Nesci; defending the impaired marijuana case by George Bianchi; and, how to try your first DUI case by John Hunsucker.

The National College for DUI Defense (www.ncdd.com) just completed its annual summer session held in Cambridge Massachusetts.  The session featured large lectures, small lectures, breakouts, and small elective seminars.

Topics covered included Cross-Examination of the Arresting Officer by Marj Russell of the Gerry Spence Trial Lawyer’s College; Cross-Examination break out; Handling the High Profile case by Tony Coleman; immigration law by Brad Williams; postconviction, writs of error coram nobis by Professor Byron Warnken of the University of Baltimore Law School; plea negotiations and ethics by Assistant Professor Rishi Batra from the Texas Tech. School of Law.

We had small elective seminars (discussion groups) that were a new feature of the summer session and were very well received with the following topics: Win at the Initial Appearance, taught by Andrew Mishlove and Pat Maher; Suppression Motions: Winning it All Before Trial, taught by Jim Nesci and Steve Oberman, Leonard Stamm and Andy Alpert, Andrew Mishlove and Pat Maher, Don Ramsell and Michelle Behan, and, Mike Hawkins and George Flowers;  Getting What You Want-Creative Approaches to Obtaining Discovery, taught by Bell Island and Lauren Stuckert; How to Use Social Media Effectively and Ethically, taught by Bill Kirk and Brad Williams; Federal DUIs: Reinventing the Wheel? by Leonard Stamm and Andy Alpert; Don’t Let Your Military Client Go Down with the Ship by John Hunsucker and John Webb; Picking the Winning Jury by John Hunsucker and John Webb, Mimi Coffey and Ryan Russman, and Paul Burglin and Lynn Gorelick; Preparing for Plan B, Sentencing in Serious Cases, taught by Mike Hawkins and George Flowers; Follicles, IIDs, ETG and SCRAM: The Hairs, Airs and Other Snares of DUI, taught by Doug Murphy and Richard Middlebrook; Just Say NO to Losing Your Client’s Commercial or Professional License, taught by Virginia Landry and Steven Epstein; Turning the Tide with Treatment, taught by Paul Burglin and Lynn Gorelick; Using Technology to Win Your Case, taught by Joe St. Louis and Lawrence Koplow; Managing a Practice from the Stone Age to the Digital Age in 10 Easy Steps, taught by Bruce Edge and Matt Dodd; Writing Winning Appeals, taught by Don Ramsell and Michelle Behan.

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