Criminal justice news

October 6, 2011

DUI Arrests Down – A Green Light for Drunk Drivers?

According to an article in the Annapolis Capitol today, “Police arresting fewer for DUI” arrests are down for DUI in Anne Arundel County. The subheadline says “Officials hope stats mean not as many are driving drunk.” This is consistent with recent national news showing that DUI arrests are down in other areas of the country, but different reasons are given. “DUI Arrests Down; Drunk Drivers Still On the Road.”

The article notes a 43% drop in DUI arrests in Anne Arundel County from 2007 to 2010 while statewide DUI arrests dropped 9% over the same period, “from 24,909 to 22,604.”
County officials interviewed for the article state they are not doing anything different.

However, the Annapolis article does concede that in 2007 “the state Police Department shuttered its Annapolis barrack and began pulling personnel from the county.” This is consistent with the Washington article which attributes a sharp decline in the number of DUI arrests to budget cuts and a reduction in the number of troopers on the road.
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September 5, 2011

DUI Update Sept. 2011 – What have they done to us this year?!

by Goldstein & Stamm, P.A.

In the past year there have been a number of developments in the area of DUI law in Maryland, and most of them favor the State.

The Court of Appeals has issued a number of decisions favoring the MVA. In Hill v. Motor Vehicle Admin., the Court of Appeals rejected an argument that the DR-15 was misleading to drivers holding a commercial drivers license (CDL) because the form was claimed to not advise CDL holders that if they refused a breath test the interlock option would not available in lieu of the disqualification of the CDL. In Najafi v. Motor Vehicle Admin., although the Court of Appeals held that Najafi’s right to counsel was not violated, it said in dicta that a claim of a violation of the right to call a lawyer before deciding whether to submit to a breath or blood alcohol test cannot be litigated at an MVA hearing. In Motor Vehicle Admin. v. Loane, the Court of Appeals construed the plain language of Transportation Article, § 16-205.1(a)(2), that the implied consent law does not apply on purely private property. The Court held that despite this plain language that the implied consent law does apply on purely private property and that the issue cannot be raised in defense at an MVA implied consent hearing. In Thomas v. Motor Vehicle Admin., the Court of Appeals held that the “detention” referred to in § 16-205.1 is not required to be an arrest. In Motor Vehicle Admin. v. Aiken, the court held that the MVA need not produce the test strip or form Notification of Test Result, if the breath operator noted the test results under oath on the DR-15A Form. The court held that the MVA did not need to show in its prima facie case that the test had been administered with equipment approved by the toxicologist, because approval by the toxicologist was not listed as an issue that could be considered at the hearing under § 16-205.1(f)(7) of the Transportation Article. In Headen v. Motor Vehicle Admin., the Court of Appeals held that under § 12-111(b)(2) of the Transportation Article the MVA could designate drunk driving offenses as confidential after five years and deny expungement as to those convictions. The Court also held that a driver who is refused a drivers license due to an out-of-state suspension or revocation is not entitled to an administrative hearing to contest the refusal.

In Motor Vehicle Admin. v. Shea, the Court of Appeals reviewed the question of what constitutes reasonable grounds to support the detention at an MVA hearing. The facts included the officer’s statement concerning a moderate odor of an alcohol beverage on the driver’s breath and that the driver submitted to standardized field sobriety tests. An administrative law judge took action against Shea’s license. On appeal, in response to Shea’s argument that the DR-15 Form provided insufficient reasonable grounds, the circuit court ruled for Shea but held that moderate odor of an alcohol beverage combined with a seatbelt violation was an insufficient basis to conduct field sobriety tests. The circuit court ruled for Shea but held that moderate odor of an alcohol beverage combined with a seatbelt violation was an insufficient basis to conduct field sobriety tests. The Court of Appeals reversed, relying on Motor Vehicle Admin. v. Richards, since the Fourth Amendment exclusionary rule does not apply in MVA hearings. The Court also avoided deciding whether a moderate odor of an alcohol beverage alone could constitute reasonable grounds to support a detention to take a test, since the Court found that there was substantial evidence to support the finding of reasonable grounds, namely that the ALJ could have inferred on this record that Shea failed the standardized field sobriety tests.
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August 27, 2011

Innocent often fall victim to DUI laws

by Goldstein & Stamm, P.A.

An article with the above title caught my attention this morning. “Innocent often fall victim to DUI laws” was published in the Picayune Item in Mississippi on August 24, 2011. The article makes many excellent points.

Police, in their anxiousness to enforce the drunk driving laws, arrest many people who are not impaired, but who have been drinking, and may exhibit some of the clues police associate with impairment. The article points out the 2/3 of Americans enjoy drinking on occasion. It notes:

There were 33,153 Mississippi DUI arrests last year, an astounding number. If DUIs were randomly distributed, every driver in the state would get at least one during his lifetime. A Colorado study showed that 20 percent of those arrested for DUIs had legal blood alcohol levels. The problem is that residual alcohol in your mouth can distort the results of the unreliable portable breathalyzers police often use to make an arrest.

July 14, 2011

20 Years for Auto Manslaughter in Prince George’s County

by Goldstein & Stamm, P.A.

20 years ago it was not uncommon to for a person convicted of automobile manslaughter to avoid going to jail entirely. Sentences in cases we have handled have ranged from zero to 18 months. This week the Washington Post reported that a woman was sentenced to serve 20 years for automobile manslaughter for a drunk driving accident that resulted in 2 deaths.

Serrette sentenced Mate to 20 years in prison — more than sentencing guidelines called for and a year less than the maximum allowed by law. The judge acknowledged that Mate had been sexually abused as a child and suffered from alcoholism.

But Serrette stressed that Mate had twice before been convicted of driving while intoxicated and shouldn’t have been behind the wheel that night because her license had been suspended.

“You had repeated wake-up calls that you ignored,” Serrette told Mate. Her actions had destroyed three families: those of the victims and her own, the judge said.

This sentence exemplifies a trend to punish drunk driving and bad driving more harshly across the board and illustrates the importance of getting the best legal representation one can afford. In a growing number of states including California, Alaska, New York and MIssouri, fatal drunk driving accidents are now prosecuted as murder. A Phoenix man received a 20 year sentence for his 6th and 7th felony DUI offenses – no one was killed or hurt. A Denver woman received 15 years for a fatal drunk driving accident last year. A Waco man received a life sentence for his 9th DUI since 1984.
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July 7, 2011

The Casey Anthony Verdict – The System Worked – And How it Relates to DUI Defense

by Goldstein & Stamm, P.A.

This week a jury found Casey Anthony not guilty of murder of her daughter Caylee. It was the right verdict. The prosecution failed to prove the cause of death, when Caylee died, how she died. The jury could not say whether Caylee died accidentally or was murdered. The jury could not find that an adult was responsible for Caylee’s death, or if an adult was responsible, who was responsible. At best, they could find that it was possible that Caylee was murdered by Casey. In our system of justice, the jury must find guilt unanimously and beyond a reasonable doubt. The evidence didn’t support a guilty verdict in the Casey Anthony case. The jury got it exactly right.

Alan Dershowitz wrote an excellent piece on this in the Wall Street Journal. He talks about the concept in our law that as a society we have made a value judgment that it is better to let 10 guilty persons go free than it is to convict one innocent person. This is one of my favorite legal quotes:

Indeed, concern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system. That concern is reflected, for example, in the ‘fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.’ In re Winship, 397 U.S. 358, 372, 90 S.Ct. 1068, 1077, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). See also T. Starkie, Evidence 756 (1824) (‘The maxim of the law is … that it is better that ninety-nine … offenders should escape, than that one innocent man should be condemned’).

It is from an opinion by Justice Stevens in Schlup v. Delo, 513 U.S. 298, 325 (1995), and can be traced back, as it was in Dershowitz’s article, to the biblical story of Abraham arguing with God that Sodom should not be destroyed if ten innocent people would be condemned.

July 1, 2011

Williams v. Illinois – Bullcoming on the defensive

by Goldstein & Stamm, P.A.

Last week I wrote about the decision of the Supreme Court in Bullcoming v. New Mexico. Everyone who participated (I helped to author the amicus brief filed by the National Association of Criminal Defense Lawyers – NACDL) was thrilled. The Supreme Court held that a surrogate chemist could not testify to a blood alcohol reading when he did not supervise or observe the chemist performing the analysis without violating the Sixth Amendment’s Confrontation Clause. This outcome was in doubt due to the replacement of two of the five justices in the majority in Melendez-Diaz v. Massachusetts, Justices Stevens and Souter. They were replaced by Justices Sotomayor and Kagan. Melendez-Diaz held that the chemist had to actually come to court and that a report would not suffice for confrontation purposes.

Melendez-Diaz was a 5-4 decision. The opinion, written by Justice Scalia, was joined by Justices Stevens, Souter, Thomas, and Ginsburg. The dissenters were Justices Kennedy, Breyer, Roberts and Alito. After Melendez-Diaz was decided, on June 25, 2009, the dissenters did not waste any time trying to get it overruled, perhaps to see if they could garner the vote of the justice who would replace Justice Souter, Justice Sotomayor. On the same day as the decision in Melendez-Diaz, the Supreme Court granted certiorari in Briscoe v. Virginia. Unfortunately for the dissenters, Briscoe, which challenged Virginia’s permutation of a notice and demand statute, and required the defense to call the opposing witness in its case, turned out to be a dud. On January 25, 2010, the Supreme Court followed Melendez-Diaz and issue a per curiam reversal in Briscoe. Justice Sotomayor had clearly sided with the Melendez-Diaz majority.

June 24, 2011

Victory in Bullcoming v. New Mexico!

by Goldstein & Stamm, P.A.

Yesterday, the United States Supreme Court announced its decision in Bullcoming v. New Mexico, reversing the New Mexico Supreme Court’s decision allowing the state to introduce a blood alcohol result through the testimony of a chemist who did not conduct the test. The case was argued and won by Jeffrey Fisher of Stanford Law School. I was privileged to have participated, along with Justin McShane, Ron Moore, Barbara Bergman, Molly Schmidt-Nowara and Alexandra Smith in writing an amicus brief on the winning side for the National College for DUI Defense, the National Association of Criminal Defense Lawyers, and the New Mexico Criminal Defense Lawyers Association. Our brief can be characterized as a kind of “Gas Chromatography for Dummies,” so that non-scientists could understand the complexity of the process, and why it is necessary to be able to question the actual chemist in order to be able to discover potential mistakes in the process or false statements. Footnote 1 of the court’s opinion shows that the five member majority got the message.

Bullcoming should not have any effect on state court proceedings in Maryland. Maryland has what is called a “notice and demand” statute that allows the prosecution to file a notice of a chemist’s report and phlebotomist’s testimony and requires the defense to file a demand for the presence of the chemist or analyst and of the qualified medical person who withdrew the blood. In state court, most lawyers routinely file such demands in blood test cases and unless the chemist comes to court the State cannot use the test result. By requiring the actual chemist and phlebotomist to come to court for the State to use a blood test result, Bullcoming changes nothing in Maryland state court because in almost all cases the actual chemist and phlebotomist is already required to come to court. However, in federal court, there is no comparable notice and demand statute and the government usually tries to introduce the blood test through a lab supervisor.
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