Thomas G. WitkopLaw Offices

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Do Not Miss Your Motor Vehicle Administration Per Se Hearing

My client recently requested a motor vehicle administration hearing after he was stopped for alleged drunk driving and providing a breath sample which revealed too high an alcohol content.

He thought his hearing was on September 9. The hearing was actually on September 6. He missed his hearing.

I am working on trying to get him a new hearing but his license is suspended while we are waiting for this. The statute goes against you. Transportation Article 16-205.1 Provides As Follows:

(iv) In the absence of a compelling reason for failure to attend a hearing, failure of a person to attend a hearing is prima facie evidence of the person's inability to answer the sworn statement of the police officer or the test technician or analyst, and the Administration summarily shall:

1. Suspend the driver's license or privilege to drive; and

2. If the driver is detained in a commercial motor vehicle or holds a commercial driver's license, disqualify the person from operating a commercial motor vehicle.

Maryland also has regulations known as Comar and they provide as follows:

11.11.02.12

.12 Failure to Appear.

If a licensee who has been given notice of the hearing fails to appear for the hearing, the Administration may:

A. Suspend the applicable privilege pending the licensee's appearance at a hearing on a date set by the Administration; or

B. Upon good cause shown to the satisfaction of the Administration as to why the licensee could not appear at the originally scheduled hearing, terminate any suspension imposed under this regulation, and send notice to the licensee of the newly scheduled hearing date.

My argument is that if they cannot find good cause then they should still give him a hearing at provided for under section A. above. The jury is still out on whether they will.

Meanwhile, my client is definitely suspended and cannot drive because he missed a hearing.



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Acquittal of All Felony Charges in Robbery Case

my client was charged with robbery, robbery with a deadly weapon, use of a handgun in the commission of a felony, conspiracy to commit robbery, first-degree assault and second-degree assault. At the jury trial three witnesses testified that my client was present at the scene. Allegedly five people were attacking one victim. One of the defendants perhaps had a handgun. The handgun if there was one was never taken out of the defendant's waistband.

My client had to alibi witnesses putting them away from the scene of the crime.

At the conclusion of all the evidence we were able to successfully argue that there was insufficient evidence of robbery with a deadly weapon, first-degree assault (there were not sufficient injuries to the victim), and use of a handgun in the commission of a felony. The judge granted our motion for acquittal.

Thereafter the jury received the case on the remaining charges. My client was acquitted of everything except second-degree assault.

I did a lot of work on that case and the results were consistent with the work put in. I am not done working on the case. I still need to prepare for sentencing.


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Provisional drivers license and convictions



In Maryland new drivers receive provisional drivers licenses. Provisional drivers licenses are delicate and do not withstand traffic tickets very well. If you have a provisional license and receive a conviction or even a probation before judgment (usually not considered a conviction) the motor vehicle administration will take a dim view and start taking actions against your license. A second conviction can lead up to 30 days of suspension and a third and subsequent conviction can give you 180 days of walking. On top of that, each conviction postpones your ability to get your regular license by 18 months. Obviously for safety reasons you do not want to receive tickets but you do not want to receive tickets because it really affects your license in a negative manner.

My 18-year-old client was on his provisional license when he originally received a speeding ticket and received probation before judgment. After that he received a speeding ticket out of state which was transferred to his Maryland driving record. The motor vehicle administration took action and threatened to suspend his license. I advised my client to drive slower and not receive any future tickets. I further had him research the effect of speeding on accidents. Included in this essay I wanted him to reflect on what he would do to reduce his speeding. He wrote a rather excellent essay which I present below. We presented this essay to the judge at the motor vehicle administration and I believe it tipped the judge in favor of my client. Instead of receiving a suspension of his driving privilege the judge issued a reprimand. My client was allowed to continue driving but I believe he realizes he must slow down.

Speeding

Speeding is the #1 violation in fatal motor vehicle crashes. I am extremely fortunate to not have been a part of an accident while having my license. Motor vehicle crashes are the leading cause of death among the ages five to thirty-four in the U.S. More than 2.3 Million adult drivers and passengers were treated in emergency departments as the result of being injured in motor vehicle crashes in 2009. Many teenagers seem to ignore the potential risks of speeding and unfortunately sometimes, as a result, become another number in these statistics. The dangers of speeding are both obvious and unrecognizable to drivers.

One of the most obvious dangers associated with speeding is the impact that it has on our ability to carefully and safely operate a motor vehicle. It is a fact that when we speed, we are less able to rely on our natural reaction time when an obstacle is perceived. Speeding significantly reduces this reaction time and prevents us from doing what is necessary to avoid a potentially dangerous situation. Though braking and swerving are actions that we naturally take when faced with an obstruction on the road, their effectiveness is severely compromised by traveling at a high rate of speed. This is primarily because a driver who is speeding does not have the time (or space) to determine whether such a course of action will really enable him to avoid the perceived danger or whether it will lead to an even more dangerous situation.
Acknowledging the dangers of speeding is important and helpful in preventing the violation, however, it is knowing the reasons why we speed that will truly stop us from continuing to put us, and others, in danger while on the road. One of the biggest reasons I have found myself pushing the pedal a little harder is when I am running late. I feel an extra urgency to pick up the pace and make up for wasted time. I know, based on feedback from my friends and others, that this factor is certainly common among young drivers, and even older ones as well. To fix this I found a simple solution. When I am running late I make certain I do not speed because of it. Realizing my habit of speeding has created another habit of understanding and compensating for my usual tendencies. Ultimately I have stopped excessive speeding and am more aware of my driving habits.
Another danger of speeding, or perhaps the greatest danger, is the fact that it is often not recognized as a danger. Few drivers, including confident and experienced drivers, would hold that engaging in distracting activities such as using a cell phone, texting, eating, etc. are conducive to safe driving. Even fewer drivers would argue that driving under the influence is prudent. On the other hand, drivers who occasionally or consistently drive above the speed limit are ready and willing to provide a list of reasons for why speeding does not qualify as an unsafe and potentially life-threatening hazard. Those who do recognize the dangers of speeding will often rationalize or justify speeding in a number of different ways. I would say, as would many others, that because everyone else speeds, it is easily permissible. However, just because everyone is doing it does not mean you should too. I have driven with the thought of “going with the flow of traffic” but have always wanted to be the leader in the “flow”. With this realization I have mentally changed my connotation of the phrase and permanently decided to be content and willing to stay in the correct “flow”.
Realizing the reasons one speeds is a simple solution to the inconvenient habit. If you truly follow through with self-analyzing natural tendencies and motives, it is easy to be successful and stop yourself from repeating the same mistake too many times.

I think this is an excellent essay. I will not give proper attribution to my client because he probably prefers to remain anonymous. I think I learned from it also.


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Sealing Criminal Records in the Superior Court

Several years ago the District of Columbia enacted "the criminal records sealing act" (DC code section 16-801) that expands the number of people eligible to seal their arrest and related records. Sealing a criminal record is not automatic. You must file a motion to seal records of the courts and a judicial officer will decide whether to grant your request to seal your criminal record.

If your case was no papered by the Office of United States Attorney for the District Of Columbia that means they have decided not to proceed with a criminal prosecution against you. If a case is "no papered" that does not preclude them from prosecuting the case later.

Even though your case has been no papered and you do not have a conviction you do have an arrest record. An arrest record is a record and a law enforcement database contains your name, the date of your arrest, the charges, and personal information such as your date of birth.

It is possible to seal your arrest record to prevent others from gaining access that part of your criminal record. If you have convictions or other arrests that you have not sealed, they will still appear on your criminal background.

If you are interested in sealing your Superior Court criminal record, please bring me a copy of your police and court records. You can obtain your criminal records in Washington DC from the DC Superior Court criminal information and finance office located at 500 Indiana Ave. NW., room 4001, Washington DC 20001. The telephone number is 202-879-1373 and their facsimile is 202-879-1371. There you can pick up criminal records, a bond refund, subpoenas, dispositions on cases. There is no charge to pick up your criminal record.

Next a written motion needs to be filed in the Superior Court within 120 days from the date the charges were dismissed. I can help you with this or you can pick up a sample motion and instructions on how to file a motion by visiting the Public Defender Service located at 633 Indiana Ave. NW. room 248A, Washington DC. You can call 202-628-1200.
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Amount in Controversy Must Exceed $15,000 in District Court for Jury Demand

Maryland recently increased the amount in controversy from $10,000 to $15,000 in the District Court. Specifically, if the plaintiff demands up to $15,000 as damages in their car accident case or personal injury case or bicycle accident case or motorcycle accident case the defendant cannot demand a jury trial. Only if the amount in controversy exceeds $15,000 can the defendant request a jury trial. This is a huge benefit to people who are injured but whose cases are not particularly large. Insurance companies usually like to get their cases in front of juries. Juries are historically defense oriented. Juries often side with defendants and even if they side with the plaintiff give low awards. By increasing the jurisdictional amount, a plaintiff can have a fairly quick trial in the District Court, save significant amounts of money for medical experts and avoid the hazard of a jury trial.
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Protective Order Hearings-Spend a Little Now Save A Lot Later

My client represented himself in a protective order hearing. The charges were very serious. His wife claimed in her petition for the protective order that my client sexually abused her teenage son. At the protective order the mother testified as to what the son had told her. The son never got on the stand to testify as to what had happened. The judge listened to the mother's hearsay testimony and used it as evidence to find that my client did indeed sexually abuse the teenage boy. Had any minimally competent attorney been there he or she would've objected to this hearsay testimony and it would have been excluded. But this evidence came into the record and the judge believed it and was appropriately disgusted at my client's behavior.

He was kicked out of the marital home and ordered to stay away and ordered to make some payments to the household.

Over one month later his wife asked the court to hold my client in contempt for violating the protective order and also requested emergency family maintenance for the bills in the house. At this point he hired me.

I interviewed my client and his witnesses. I tried to speak to the teenage boy but my efforts were blocked. The wife claimed that my client broke into the marital home and took a shower and stole various items. She also claimed that he came up to the front door and rang the doorbell and ran away.

At the hearing the wife testified and I was able to discredit her testimony completely about breaking into the house and taking a shower. There was no evidence that my client came into the home and the judge agreed with that. As to the ringing of the doorbell she testified as did her daughter that they saw my client come up to the house ring the doorbell and then drive away in the car. I was able to somewhat successfully discredit his wife but I was not able to really touch the daughter. She had no obvious motive to lie about this. The judge did find that my client violated the protective order but he was not locked up, he was warned not to do that again.

The wife additionally requested emergency family maintenance which included the water bill, the electric bill, the gas bill and the cable bill. Prior to the hearing I went through my client's finances and he was upside down. He earned less than he spent every month and he was living a very frugal lifestyle. At the hearing the wife testified and submitted the various bills that she had including a $400 cable bill. The law in Maryland requires emergency family maintenance for necessary items. The judge was rather shocked at the $400 cable bill. On cross-examination it became clear to the court that the wife had not worked in years, that in her petition for divorce she stated under oath that "I am self-supporting" and do not need money support. My client presented his pay stubs and his lease and his financial statement clearly showing that he was "upside down" in terms of income. The judge found for my client and did not order any family maintenance.

Had my client hired an attorney prior to the initial hearing it likely never would've even gotten to the point of a protective order. There is some truth to the saying spend a little now save a lot later.
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Five Court Appearances for a Violation of Probation



After shooting his cousin in the neck and a stranger in the back in Gaithersburg, Maryland I was able to generate enough evidence to reduce attempted murder charges down to the misdemeanors reckless endangerment. At the time of the guilty plea my client was given no jail time but was given 18 months of probation in front of a very tough judge. Any violation of his probation conditions would lead to the two years of backup time. This the judge promised.

My client generally did well on probation. He had a job, he was obtaining his GED, he was in counseling and he was very active in his baby's life. Unfortunately, my client felt that he needed to use marijuana. He was missing many of his urine tests but the probation officer let that slide. Finally, the police were conducting a raid at a home for a different person and my client happened to be there and he happened to have six small bags of marijuana in his pockets. He was charged with possession with intent to distribute marijuana and this would be a violation of his probation.

I was able to beat the marijuana charges using a constitutional argument.

The original sentencing judge did not care. He issued a warrant for my client's arrest. My client turned himself in. I appeared with my client at the initial bond hearing. At the bond hearing the judge was already trying the violation of probation case. He was already finding my client in violation of his probation. I argued this was obviously not proper and we were here merely to set his bond. The judge revoked his bond. I asked for a probation hearing to be set in the near future.

Despite the fact that he was acquitted on the possession of marijuana the judge insisted on going forward with the violation of probation. Frankly, that is the state of the law in Maryland. The burden of proof in a criminal case is beyond a reasonable doubt. The burden of proof in a violation of probation case is by a preponderance of the evidence and the quality of the evidence is much less substantial. Nonetheless, I was able to research case law and found that in Maryland normally hearsay evidence is not permitted at a violation of probation hearing. At the first hearing for violation of probation the prosecution did not have its officers to prove the case. The prosecutor, the probation agent were both pushing to have probation continued and if my client did well on probation to withdraw the hearing. This judge would have none of that. He ordered the prosecutor to get a transcript of the marijuana trial and use that as evidence at the next violation of probation hearing.

At the next violation of probation hearing the prosecutor had the transcript but did not have the chemist for the drugs. I argued that the transcript would violate my clients constitutional right to confront witnesses and cited the Maryland cases which supported this position. The judge accepted that and the prosecutor was able to get some of the officers to come to court that day. We had a trial but at the end of the trial the judge postponed the case because the chemist was unavailable.

On the next trial date the chemist was late. I put on five witnesses to establish everything my client had been doing well while on probation. One witness was particularly effective. He works at the Upper County Youth Center. He testified that my client was at the youth center three to four times a week for three to four hours a day studying for his GED. He was also receiving counseling from this witness. The judge was paying close attention.

Finally the chemist showed up and was able to prove that the marijuana in the bags was indeed marijuana. The judge was convinced that my client was guilty of possession of marijuana and violating probation.

The judge was ready to give my client the full backup time. I was able to successfully argue that it would be unfair. My client had spent most of his time on probation doing the right thing-working, getting counseling, getting a GED, trying to get his driver's license. The judge finally relented and instead of giving the full backup time gave 18 months of local time with a consideration for the work release Center in Montgomery County which would allow my client to spend his days working rather than being locked up. This was very unusual for this judge.

Although I did not prevail for my client I appeared five times in court on the violation of probation (there was an initial appearance before another judge regarding a bond hearing), I had law to support my client's position and I had fact witnesses to help in mitigation of sentencing. I fought the state's tooth and nail and at least was able to achieve two things. My client did not get the full backup time. My client is eligible for work release.
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I Have Moved My Office

My office is now at 932 Hungerford Drive, Suite 4B, Rockville, MD 20850. It is 1 mile north of my original office Off of 355. Behind me is Montgomery College and just south of me is the Montgomery County school board. I have the second floor of a townhouse. I renovated the office. I think you might be surprised at how nice it looks (at least compared to my old office). Come by and visit. Parking is of course free. Legal advice costs a little bit more.
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Washington Area Bicyclist Association Holds Crashing Seminar

The Washington Area Bicyclist Association had a seminar, "What to Do after a Crash"; they invited three attorneys, Peter Baskin and Bruce Deming, both of Virginia, and myself. The executive director of WABA, Shane Farthing, moderated. It was an informal roundtable presentation. The discussion included nuts and bolts real world advice as to what to do before and after a crash. It also included larger policy making plans such as reducing crashing through improving the infrastructure, street-level police education as to dealing with cyclists involved in accidents, increasing data flow through 911 involvement for better statistical analysis.

I prepared a summary of advice for post crash which I include below. Please call me at 301-294-3434 or Tom@WitkopJustice.com if you have questions.

What to do in a crash as it applies to bicyclists in Maryland

You've just been struck by a car. It is a sudden, frightening and disorienting experience. Assuming you are not dead, unconscious or heavily disabled, there are steps that you can take to protect yourself those immediately and down the road should there ever need to be a criminal prosecution against the driver that hit you or a civil lawsuit.

Gen./common sense

Before the Accident
1. Wear a Helmet
2. Have Identification
3. Have a Will and Advanced Directives
4. Obey the Traffic Laws
5. Use Lights
6. Pretend That You Are the Invisible Man.

Immediately after the Accident
1. Remain at the scene
2. Be of assistance to others and yourself
3. Provide contact information to others involved in the accident
4. Get witness information
5. Call 911 for medical assistance and/or police assistance
6. Try to obtain and preserve evidence-identify the driver, identify the vehicle, get the tag number.
7. Try to get a statement from the defendant driver.

More specific to the above rules:

1. Maryland law requires a driver involved in an accident involving property damage or personal injury to remain at the scene and give identifying information. Such this applies whether or not you are at fault. If you are significantly injured get prompt medical help. Witnesses tend to be sympathetic if you are on the ground bleeding. People tend to be helpful but do not want to be involved down the road. Try to get their business card so you can contact them later. Find out if they can identify the vehicle that struck you.

2. Obviously if you are hurt remain down. In motorcycle racing after you crash they recommend that you wait a few seconds to get up because you might still be sliding. Bicycling slower but you do not want to compound your injury by popping up. Obviously if you are on a busy street do what you need to do to avoid being hit a second time. Do what you can to help yourself. In terms of helping yourself, do not curse at the other driver. That sort of thing as a way of affecting what happens at the scene and what happens in court. Recently I had a trial and my client admitted that he said to the other driver "look what you did to my flocking car". The other driver amplified on that and claimed that my client said "look what you did to my flocking car you stupid bitch".

3. Provide your contact information. Address, telephone number. Given get insurance information. Try to see the other person's insurance card. Probably at least 10% of drivers are uninsured.

4. Get witness information. This is critical. I think that people are generally good natured and will help somebody when they're down. They are often less willing down the road to health and litigation. Get their names, address, phone number, e-mail, find out what they have to say. It is critical because there is a general bias against bicyclists. The Metropolitan Police Department and Montgomery County Police Department have a prejudice against us. Insurance companies absolutely have a prejudice against us. If it is the word of the bicyclists against the word of the motorist, the bicyclists usually loses. An independent witness is key for establishing your case.

5. Call 911. That is what they are there for. Often it helps preserve evidence at the scene. It preserves the status quo. When they come do your best to present your side of the story in a pleasant manner. We are wild eyed crazies. Disabuse them of that notion. I understand that you may be bleeding and in shock but try to present your story in a pleasant manner. It can help with your credibility.

6. It hurts your case if you cannot identify the driver. Normally we go after the car and the license plate. Those are hard to see. So was the driver of course. Nonetheless, knowing that the driver is Caucasian, 200 pounds, approximately 50 years old with dark hair, male, clean-shaven is a helpful description. I believe that it was a person that hit me was not so helpful.

7. Anything that the driver says to you is evidence. Do not argue with the driver. Don't tell the other driver that she is a liar. Just get her statement. It is best if you have a witness listening to the statement. In Maryland it is illegal to tape record somebody else's statement without their permission. If you can get their permission and can tape them, go ahead and do it. Likewise, anything that you say is evidence that can be used against you.

Not Long after the Accident

1. If you receive a traffic citation, signed for it. That is not an admission of guilt. I have never seen an officer avoid a ticket after he has written it. After you receive the citation, affirmatively request a trial date. Do not argue with the officer about it. Again anything you say can be used against you.

2. Receive prompt medical attention if you need it. Do not try to make something out of nothing. But if you have an injury take steps to get treatment quickly. It is important for you medically. Doctors have the ability to diagnose and treat and make you feel better and avoid further problems. From a legal standpoint it develops a record that you had a real injury.

From Here on out

1. In Maryland there are several insurance companies that may relate to your accident. If you have a vehicle you have vehicle insurance that covers you including personal injury protection and uninsured motorist coverage. You may have renters or homeowners insurance. You may have health insurance. The other driver has vehicle insurance which will likely have personal injury protection coverage as well as liability coverage.

2. Do not give a recorded statement to the other insurance company. This can only go badly for you.

3. Keep your receipts and your medical records. Keep your lost wages. Take photographs of your injuries and property damage.
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Case Dismissed When State Does Not Follow Proper Procedures

Before you even get to substance-whether somebody is guilty or not-you need to make certain that proper procedures were followed. In this case, the prosecution was attempting to get two bites at the Apple. That is simply not fair. Let me explainin my case. The police found my defendant with alleged marijuana in his pocket and a stolen GPS in his hand on November 24, 2010. He was charged in one district court case with theft under $1000. That case resolved on May 31 when my client, representing himself (he had not hired me yet) pled guilty to theft under $1000 and was given a jail sentence.

In the second District Court case he was charged with possession of marijuana and possession of paraphernalia. That case was set for trial today. Strangely, the laboratory had not done an analysis on the drugs. I waited around all morning and early afternoon for the analysis. While that was happening the public defender let me do some research-this was a panel case-and I found Cook versus state, 281 Maryland 665, ( 1978) which states that "it is beyond question that the closely related doctrines of res judicata and collateral estoppel applied to criminal as well as civil cases." It went on to say that "under the doctrine of res judicata, sometimes known as direct estoppel, a final and valid judgment rendered in one proceeding between two parties operates as a bar in a second proceeding between them on all matters that have been or could have been decided in the original litigation, where the second proceeding involves the same subject matter as the first cause of action."

The state started arguing a double jeopardy analysis but that was not the issue in this case. The issue in this case was res judicata. In this case a final and valid judgment was rendered in one proceeding between the state of Maryland and my client-he was sentenced to jail on May 31, 2011 and all appeal time had run; in the earlier proceeding they could and should have brought the possession of marijuana charge but they did not, consequently the state could not take another bite at the apple. The judge agreed with my analysis and the case was dismissed.
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