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The Washington Post recently ran a story by reporter Dan Morse about testing volunteers high on weed to practice the tests they run when they suspect a driver is impaired by marijuana.  The story quoted attorney Leonard R. Stamm.

Such drug impairment tests are regularly challenged in court across the country.

“There are real questions about the scientific validity of what they’re doing,” said Leonard R. Stamm, a longtime defense attorney and author of “Maryland DUI Law,” which devotes more than 30 pages to defending drugged driving cases.

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In legislation enacted last year, the legislature amended statutes governing breath testing in Maryland, effective October 1, 2022.  Previously, relevant statutes delegated to the toxicologist under the Post-Mortem Examiner’s Commission in Baltimore, the responsibility for approving equipment used for blood and breath testing in Maryland.   The new law transfers that authority to “the toxicologist in the Department of State Police Forensic Sciences Division.”

At this point it is unknown how this shift will affect the admissibility of breath tests conducted after October 1, 2022, as these cases are just starting to get litigated.  The toxicologist under the Post-Mortem Examiner’s Commission drafted regulations and procedures governing the approval of equipment for use in breath and blood testing in DUI cases.  For tests occurring between October 1 and December 31, 2022, the new toxicologist simply wrote a letter extending the approvals previously issued by the former toxicologist.  Whether this passes muster in court is yet to be determined.  Arguably, once the legislature made the change, the new toxicologist could do anything except that as the legislature determined that the former toxicologist in charge of testing not make those decisions.  Rather, the new toxicologist needs to develop procedures the assure the reliability and accuracy of breath and blood testing.  Time will tell whether the new toxicologist will take the independent action to approve the equipment being used the legislature arguably requires.

For now, it is critical that defense lawyers request all available discovery from the State to evaluate whether the State has complied with the new laws requiring the toxicologist in the Department of State Police Forensic Sciences division to approve the equipment used in breath and blood testing in Maryland.

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I am relieved.  I think that’s the right word.  Make no mistake a fascist minority attempted to take over our country.  Should I list the most outrageous things that were either said by Trump or Maga Republicans, overtly proposed or covertly suggested, and not condemned, that were rejected in the most recent election:

  • No – Obama was not born in Kenya
  • The Muslim ban was beyond offensive to American values
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I lost another client three weeks ago. Not even 60 years old.  Perhaps I should have anticipated this.  The signs were there.  He had two accidents within a few years and very high BACs.  I mean VERY high.  But I believed him when he told me he had been in rehab for 28 days and sober for over a year.  When I saw him in court this spring he seemed sober.  I never noticed any indication if he was still drinking.  Yet when he went to jail for a week his ex-wife called me to say she had  been receiving bizarre texts from him in the jail.  But when I called the jail they said he had been released.  He apparently ended up in the hospital.  Did he end up in the hospital because he went into withdrawal in the jail?  He denied that when I last saw him in July. He minimized what I had heard from his ex-wife and convinced me everything was fine.  It wasn’t.  I think he just wanted the government to leave him alone.  Three weeks ago I found out he died in a fall.

While the vast majority of DUIs do not involve people as sick as my client apparently was, I recommend an appropriate level of education/treatment for all my clients.  If you can’t stop drinking – get help.

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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.

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Here are a few thoughts on our future after Dobbs.
1. I have always viewed Roe v. Wade as a compromise – an attempt to settle the dispute between those who favor and oppose choice. It was the middle position, giving preference to choice during the first trimester, and against choice in the third trimester, and balancing the interests during the second trimester. This was later adjusted to viability in Casey and requiring laws not to impose an “undue burden” on choice before that point. Dobbs says a prohibition of abortion survives because there is a rational basis for the legislature to believe the ban supports legitimate state interests. Here are some options for restoring the Roe/Casey compromise.
2. Pass the Equal Rights Amendment. This would allow an end run around Dobbs, recognizing women’s rights, and require the use of the much tougher strict scrutiny test. To pass strict scrutiny, the legislature must have passed the law to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest.
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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.

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Earlier this week, the Maryland Court of Appeals agreed to hear the case of Dejarnette v. State.  In Dejarnette, the Maryland Court of Special Appeals held that a violation of the requirement that officers observe a defendant for 20 minutes before a breath test would only go to the weight to be given to the violation, as opposed to its exclusion.  Dejarnette, represented by the Public Defender’s office, filed a petition for a writ of certiorari, asking the Court of Appeals to take the case.  Dejarnette was joined by the National College for DUI Defense and the Maryland Criminal Defense Attorneys’ Association, who filed an amicus brief in support of the petition, written by Leonard R. Stamm and others.

Dejarnette will be arguing that a violation of the 20 minutes observational requirement should result in the exclusion of the breath test from evidence, as the 20 minute requirement is an essential component of an accurate and reliable breath test.

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While representing people accused of driving offenses, it is come to our attention that occasionally the records the police rely on while apprehending suspects contain some pretty serious errors that can result in prejudice to the driver.  Here are a few examples.

One of our clients was recently charged with driving on a suspended license. A review of the driving record showed that his license had been suspended for 270 days, but for some unknown reason the suspension remained on his record for more than 270 days.  The MVA should have noted the withdrawal of the suspension on the driving record. However it did not, and when the driver was stopped on the 274th day, the officer charged him, among other charges, with driving while suspended.  This can be a pretty serious charge, if the defendant has previously been found guilty of this offense.  It also creates potential immigration issues.  Upon calling the MVA, they corrected the record, and it can now be proven using a certified copy of that record that he is not guilty of driving while license suspended.

Another client moved to Florida and obtained a Florida driver’s license.  He turned in his Maryland driver’s license.  But the MVA did not record this.  When visiting Maryland, he received a charge of driving in violation of a license restriction because all Marylanders under 21 have an alcohol restriction on their driver’s license.  As a result his license was suspended for one year.  However, as a Florida licensee, he should not have been suspended or charged.  After contacting the MVA, they searched for and confirmed that the Maryland license had indeed been surrendered and removed the suspension.

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Last week both houses of the Maryland legislature overrode Governor Hogan’s veto and passed the Maryland Police Accountability Act of 2001.

The Act will improve the criminal justice system in Maryland a number of ways:

  1. Set stricter standards for use of force by police;
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