Thomas G. WitkopLaw Offices

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If It's Not in the Police Officers Report It Did Not Happen

I was recently in Cecil County Maryland. I was representing a professional driver who drives over 100,000 miles per year. This was his second charge for driving while under the influence of alcohol in the past five years. If he suffered a conviction he would lose his job as a professional driver. My client had done a great deal in terms of dealing with his alcohol issues-he received an alcohol evaluation, followed up diligently with the classes which were recommended, went to Alcoholics Anonymous and completely abstained from further drinking.

In a drunk driving case, generally there is a police report written by the arresting officer. That is not usually supplied to the defendant automatically. Most defendants do not know about this report. It is a simple matter of requesting that report from the prosecution and it must be provided. In this case the police report stated that the officer watched my client at approximately 2:30 a.m. begin to make a left turn and then continue straight and thereafter change lanes from lane number one to lane number two without a turn signal. Thereafter, the officer stopped my client, smelled the odor of alcohol, my client did poorly on the field sobriety tests, and my client had a breath test in excess of the legal limit.

The fourth amendment of the United States Constitution provides that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." This amendment applies to people driving automobiles. Based on the police report I did not believe that the officer had the right to stop the motorist. There was no evidence, in my mind, that my client had violated any traffic laws and consequently the officer could not make the stop.

The case was called to trial. The officer testified that he saw my client begin to make a left turn and then abruptly go to the right almost striking the officer and causing the officer to brake hard and veer away to avoid a collision. You can imagine my surprise. This was not in the police report. The officer further testified that when my client changed lanes he crossed a double yellow line. More surprise to me.

One of the fundamental aspects of American criminal jurisprudence is the right to cross-examine witnesses. It is normal for a witness for the state to want to tell a story which supports the state's case. That story when it is finished sounds complete and convincing. Cross examination is key to really making the story complete. It allows the examiner to explore parts of the story that the witness did not want to reveal. It allows the examiner to point out contradictions in the witness's story.

In this particular case I examined the police officer about his report. In cross examination the officer admitted that the police academy taught him to write reports and that those reports must be truthful and accurate and complete. Further, he acknowledged that the reports were very important so that he could remember the events accurately, the prosecution could look at the report and develop a theory of the case and the defense could rely on the report that there would be no surprises. The officer further admitted that his memory was freshest when he wrote the report because he wrote the report perhaps one hour after the arrest and a trial we were approximately 8 months postarrest. The officer further admitted that my client cutting him off was a very significant factor and that he had omitted that from the report. When I asked the officer had he ever seen double yellow lines on the road where the lanes headed in the same direction he stated he had not and perhaps he was mistaken. He then said it was a single yellow line. Again, when asked if he had ever seen a road with a single yellow line with two lanes heading in the same direction he agreed he had not. He finally admitted he had no idea what the lines were.

At this point in the case I argued to the judge that the officer's report should be the evidence that the judge considers and not the officer's testimony. The report was much more recent to the time of the arrest and should be an accurate reflection of what happened. The judge agreed and found that my client had not made any legally recognizable driving violations which allowed the stop. The judge ruled that the stop was illegal. At that point, there was no evidence of drunk driving and my client was acquitted of all charges.

I was pleased and somewhat surprised with this result. Frequently, I am used to the 80% rule. The 80% rule is that the officer has 80% of his information in the report and then at trial adds 20% which is a complete surprise. Most judges seem to allow this. This judge in Cecil County did not and I believe that the right result followed.

My client was also pleased. No conviction, no jail, no points, no fine, no probation. Perhaps I am naïve but I believe this experience had enough of an impact so that he no longer drinks and drives.

Getting compensation for injured homeless man is not easy but it is possible

Jack was a homeless men with significant alcohol and mental problems. He was well known and generally liked if not loved in Gaithersburg. Several years ago he had found temporary housing. It was a multiunit apartment building in Gaithersburg Maryland. One day one of the units caught fire. It was a cold day much like today. While people were waiting out front for the fire department to extinguish the blaze, Jack volunteered to go to the 711 and bring back coffee. On his way back while bringing the coffee an unknown driver jumped the curb, went on the sidewalk, then struck Jack injuring him badly. That driver remained unknown and took off without any evidence connecting him to the crime.

Jack was taken to the hospital with injuries to his legs. The hospital provided treatment and after several weeks discharged him. Based on these injuries he was unable to do any odd jobs and he lost his temporary housing and ended up back on the street. Jack had no health insurance or any other sort of insurance. He had injuries and significant suffering.

A friend of his brought him to my office. Maryland has an uninsured motorist accident fund. In order to qualify, the applicant must make a timely application (the time limit is rather short and back then it was six months but I don't want anybody to rely on that because laws change) and the applicant must not have had any insurance which would cover him and the applicant must be free of fault in the accident among other qualifications. The available money is limited, at that time it was only $20,000 and I do not expect that to change. We made the claim, pressed the claim, presented the medical evidence, presented evidence of the permanent injury that Jack suffered and eventually we were able to obtain the full $20,000 from the state of Maryland.

The case does not end there. Medicare paid Jack's medical expense's which exceeded $20,000. Under federal law, Medicare is entitled to compensation for anything that they pay out. The applicant can argue that the lien that Medicare asserts should be reduced because of circumstances. In this case, we were able to persuade the federal government that Jack was homeless, Jack was badly injured, he needed the money more than Medicare did; they completely waived their lien. I reduced my attorney's fees so that there would be more money in Jack's pocket.

The case even does not end there. I talked to Jack about giving him the lump-sum settlement. Jack was never declared incompetent by any court and consequently he could have taken the money and spent it as he wanted to. He decided I should pay him the money on a monthly basis. Meanwhile, Jack and I both went out together trying to find him a place to live with the money. He was still on the street. Together we got him identification which was not easy-he did not have a fixed address. I gave the state of Maryland my office address and that seemed to work okay until the police would come to my office with either a summons or an arrest warrant for him. As I said, Jack had problems with alcohol and mental issues. We went to several places which were within his price range but Jack was never able to follow through. I could not force him. The best that happened is that there was an inexpensive hotel in Gaithersburg and he would stay there every month for about a week until his money ran out. I felt better believing that at least he was warm and dry on some pretty cold nights. Jack's condition never got better, but actually deteriorated and he died several months ago. I would like to believe that the money that I was able to get for him for his injuries at least made him somewhat more comfortable in his difficult life. Rest in peace jack.

Sometimes when the prosecution is hard it makes the case easy

Last week I was representing a client already on probation for driving while suspended. While on probation he was again charged for driving while revoked. My client was a decent generally law-abiding citizen. It seemed like the prosecution was ready. I tried to negotiate with the prosecution to reduce the one year in jail, 12 points on his license offense down to a 60 day in jail three points on his license offense. Not that my client would necessarily go to jail for 60 days but that was the possibility. And 60 days is a lot better than one year. The prosecution stuck to their guns and basically ridiculed my attempts at settling the case. The battle lines were drawn and the case was called for trial.

A little background: My client advised that he had left a bar at approximately 11 p.m. and was sober and before he got into his car he saw the police officer in the parking lot waiting for drunks to come out to be stopped. My client was fully aware of the officer and drove very carefully. He observed a stop sign exiting the parking lot and began down the road and noticed that the officer was after him. The officer put on her takedown lights and my client pulled into the 7-11. At that point it was determined that his license was revoked. The officer told him that she had stopped him for running the stop sign.

The testimony of the officers surprised me. The officer testified that it was 11 a.m. and she had run my client' s tag and determined that the owner of the vehicle was suspended. She testified that the owner was a white male who was 5'8" tall and 190 pounds. This matched the description given from her police car computer. Obviously the testimony was quite different from my client. On cross examination she fell apart establishing his height and his weight (he was sitting in a car and all she could see were his shoulders and above-rather difficult to figure out somebody's height and weight). My client admitted police officer that he was suspended.

During the suppression hearing (we challenged the constitutionality of the stop) my client testified that his wife owned the car and consequently the description should have come back for a woman. Also he testified that he was stopped for running a stop sign. He told the judge that he did not run the stop sign.

The judge looked at the facts. The officer was very shaky in her testimony. She did not have her notes. She had had hundreds of stops of other motorists since the original stop. She had made hundreds of arrests since this original arrest. She was wrong as to the time of the arrest. She was wrong as to the vehicle owner. She was wrong as to the reason for the stop. My client was properly prepared and had a very strong memory of the events. His testimony was solid and credible.

The judge granted our motion to suppress the evidence and my client was acquitted. No jail, no probation, no conviction, no points, no fine. Often when the prosecution makes the offer too difficult, it makes the case that much easier to try.

the prosecution's discovery violations cost them their case

While waiting to try my DWI case I watched the following occur before Judge Richard Collins in the Hyattsville District Court. The defendant was charged with DWI. Defense attorney entered his appearance in August of 2009 and requested discovery. The trial date was September of 2009. In writing, the defense attorney asked to continue the September court date because there was no discovery provided and this request was granted. Thereafter, the defense attorney called the prosecutors several times looking for discovery and each time was advised that it would be coming. The trial prosecutor made the last promise on November 13 and faxed the usual DWI report and the like on December 1 (one day before trial).

Defendant and attorney show up for trial and he moves to dismiss or in the alternative preclude testimony of the officer or for a state's continuance. He argues that he has suffered prejudice because he could not timely prepare with this late notice. He could not go to the scene of the stop with his client, et cetera. Judge Collins dismisses the case based on the fact that the last time the case was continued because of discovery violations. He did not seem to have much trouble dismissing the case either.

follow-up to preparation for a civil trial

Well the jury came back. The plaintiff had approximately $500 in medical bills and approximately $3000 in time missed from work. The jury came back with $5,200. The doctors fees for testifying were probably $1500 which the plaintiff must pay. The attorney's fees were probably 40% which would be $2080 which would leave the plaintiff a net of $1620 (assuming that his medical expenses had already been paid). The pretrial offer was higher than the verdict. The plaintiff would not have had to pay the doctors fees in the pretrial verdict. The plaintiff would have netted at least double the amount he got a trial.

This is only one case so it would not be fair to extrapolate some general lesson other than if you go to trial you gamble with the results.

Going to Trial Requires Preparation from Day One

while I was in the Circuit Court for Montgomery County I stopped to watch a simple car accident case. the plaintiff was heading southbound on a road. the defendant was heading northbound andbegan to make a left turn which resulted in an accident. The plaintiff went to the emergency room complaining of headaches, neck ache and low back pain. he stated that he smacked his head into the steering wheel and bruised his head.Thereafter he went to his treating physician two times for follow-up care.

I watched the testimony of the plaintiff's treating physician as well as the testimony of the plaintiff. The direct testimony of the plaintiffs Dr. and the direct testimony of the plaintiff himself went smoothly enough.

It became rough for both the doctor and the plaintiff during cross examination by the defense attorney. The defense attorney clearly had memorized the deposition testimony of the plaintiff and had memorized the medical reports of the plaintiff's doctor.

Small omissions in the medical records and lapses in memory called into question the competency of the medical treatment and the credibility of the plaintiff.

The emergency room records only listed that the plaintiff had suffered from a neck injury. There was no mention that he complained of hitting his head or that his low back hurt. In fact, the emergency room doctor had noted that there was no concussion and no bruising. This contradicted what the plaintiff said on the stand.

When the plaintiff went to his doctor the records did not indicate anything about low back injury nor did it indicate anything about concussion or bruising on his head. This also contradicted what to the plaintiff said on the stand.

I believe that the plaintiff told the emergency room of his problems and told the doctor of his problems but the doctor either didn't hear what the plaintiffs said or forgot to write it down or perhaps the person that transcribes the notes forgot to put it in. The plaintiff's doctor was not prepared for cross examination on these errors. Preparation for the discrepancy in information would have at least allow the doctor to give a credible explanation to the jury why these items were missing in the medical record but did exist in the plaintiff situation.

On the witness stand the plaintiff testified that his speed prior to the accident was 30 mph. The defense attorney immediately turned to the plaintiff's deposition and proved that his prior testimony was that he was going no faster than 25 mph. The plaintiff stated that the accident caused him so much pain that he could no longer exercise and that he gained weight. He testified that just prior to the accident he was 215 pounds and then gained 45 pounds. The defense attorney grabbed the doctor's records and showed that two weeks before the accident the plaintiff was at 238 pounds and three months after the accident he was at most at 245 pounds. Again, the plaintiff should have been consistent in his testimony and should have been certain in his testimony. A review of his deposition transcript prior to trial as well as his medical records would have helped better prepare him for the trial.

These may seem like small matters but they can affect how a jury looks at the case. Is the plaintiff lying or just mistaken. If the plaintiff is mistaken about one matter, Mikey just as likely be mistaken about another matter. Is the doctor sloppy and forgetful? If so, can we put much weight on the doctor's opinion?

There are only 24 hours in a day and it is difficult to anticipate all the problems in a case but there will be problems in a case no matter how good it is. If you are going to go to trial you must prepare for it.
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