Right to Counsel

December 1, 2011

The DUI Defense Lawyer as DUI Mechanic/Technician

Criminal defense lawyers are fond of making analogies to explain themselves to non-lawyers. Analogies can be very useful in closing argument and I intend to discuss some of those analogies in a future blog. Today I want to discuss the DUI defense lawyer as a DUI mechanic or technician.

Every DUI case has component parts. The prosecutor must know how these parts fit together in order to build a successful case. The defense lawyer must also know how these parts are supposed to fit together in order to dismantle the State’s case. This is an integral part of our criminal justice system, and the defense lawyer acts as a check on the government to make sure the prosecution follows all of the rules and regulations, statutory and constitutional provisions before the fact-finder – a judge or jury – concludes the defendant is guilty.

It’s as if you brought your car into the shop for the mechanic to repair or rebuild your car. The defense lawyer is like a competing mechanic watching the actual mechanic. The judge is a supervisor. When the actual mechanic tries to take a short-cut, and skip a part he has in short supply, the defense lawyer/opposing mechanic objects, and the judge/supervising mechanic can rule that the prosecutor/mechanic cannot complete the repair without doing it 100% correctly.
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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 12, 2011

To Blow or Not to Blow? – That is the Question!

by Goldstein & Stamm, P.A.

Once a driver has been arrested for a DUI or DWI in Maryland by state, not federal, police, the arresting officer is required to read a form to the driver, called the DR-15 Form. This form explains the penalties for failing or refusing a breath or blood test. Of course if the driver passes the test, i.e. produces a result below .08, there is no penalty. Unfortunately, very few people have even the foggiest clue of what they will blow.

The penalty for failing the test is a 45 day suspension on a first offense or a 90 day suspension on a second or subsequent offense if the driver blows .08 or higher but less than .15. If it is a first offense within five years the driver may be eligible for work, school, medical, or alcohol education restricted driving privileges. If it is a second offense within five years the driver may only obtain a restriction allowing the driver to drive only vehicles equipped with an ignition interlock system.

If the driver blows .15 or higher the penalty is a 90 day suspension on a first offense or a 180 day suspension on a second or subsequent offense. In lieu of the suspension, the driver may be allowed to drive with an ignition interlock restriction for one year.

If the driver refuses the the penalties are a 120 day suspension for a first offense and a one year suspension for a second or subsequent offense. Again, the driver may be allowed to drive with an ignition interlock restriction for one year. A refusal may also be considered as evidence of guilt in court and may also subject the offender to an additional 60 days in jail.

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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May 27, 2011

What does the right to call a lawyer or have one visit you in jail before deciding whether to take a breath test mean?

by Goldstein & Stamm, P.A.

Recently, the Maryland Court of Appeals considered the case of Najafi v. Motor Vehicle Administration (MVA). After Najafi had been arrested for DUI, he asked to be able to make a private call to his lawyer to help him to decide whether to submit to a breath test. He requested that he be given privacy to make the call, but the officer said he couldn’t allow that. He tried to call his lawyer but only got an answering machine. He never submitted to a breath test and his license was suspended at an MVA hearing.

In the Court of Appeals he argued that because the officer said he could not have a private phone call he was denied his constitutional right to contact a lawyer and therefore his license should not have been suspended. The MVA argued that while a person detained on suspicion of drunk driving does have the right to contact a lawyer to decide whether to submit to a breath test, they argued that the denial of that right can only be raised as a defense in court, not at an MVA hearing. The Court of Appeals held that since the officer allowed him to call his lawyer, it was unnecessary to reach that issue. The Court also held that there was sufficient evidence for the administrative law judge (ALJ) to conclude Najafi had refused the test.

Although the Court did not reach the issue of whether denial of counsel could be raised at an MVA hearing, it intimated in dicta that it could not. An “obiter dictum” is a “judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive)” according to Black’s Law Dictionary. For a number of reasons, I believe this dictum is mistaken, and continue to argue at MVA hearings that denial of counsel is a valid defense.
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