Use of Medical Marijuana More Liberalized in Maryland
Sun, Jan 13 2013 05:53 PM
The general assembly has expanded the defense of medical use for marijuana. Maryland certainly has not legalized the use of marijuana but it has acknowledged that the possession of very small quantities of marijuana for medical use should be taken into consideration by the courts.
More specifically, in a prosecution for the use of marijuana, the defendant may introduce and the court shall consider as a mitigating factor any evidence of medical necessity. This comes directly from the statute, MD Code Crim. Law. 5-601 Possessing or administering controlled dangerous substance (Maryland Code (2012 Edition). A mitigating factor is not a defense but if the court finds that there is medical necessity, the maximum punishment upon conviction is a $100 fine.
The general assembly went further and now provides an affirmative defense for the possession of marijuana which states as follows, "(iii) 1. In a prosecution for the use or possession of marijuana under this section, it is an affirmative defense that the defendant used or possessed marijuana because:
A. the defendant has a debilitating medical condition that has been diagnosed by a physician with whom the defendant has a bona fide physician-patient relationship;
B. the debilitating medical condition is severe and resistant to conventional medicine; and
C. marijuana is likely to provide the defendant with therapeutic or palliative relief from the debilitating medical condition.
2. The affirmative defense may not be used if the defendant was:
A. using marijuana in a public place; or
B. in possession of more than 1 ounce of marijuana."
Clearly the use and possession of small amounts of marijuana is not legal in the state of Maryland but for the person who is sufficiently unfortunate to have a debilitating medical condition which is severe and resistant to conventional medicine and marijuana is likely to provide relief then at least the patient has access to what was hereto for illegal relief. That being said, even the very sick can be arrested, prosecuted and go through the difficulty of a trial with the need to provide a somewhat difficult affirmative defense. In short, the general assembly has opened the door for the use of small amounts of medical marijuana but clearly have not opened the floodgates. Do not use or possessed marijuana unless you are willing to suffer through a prosecution and trial.
Driving without a License in Maryland
Sun, Jan 13 2013 05:10 PM
Defending driving without a license in Maryland has become more difficult. Several years ago Maryland became one of the last states to prohibit illegal immigrants from obtaining valid Maryland licenses. Put another way, illegal immigrants could get Maryland licenses. Several years ago the motor vehicle administration required applicants for licenses to prove legal resident status.
The practical result of this was that people in this country without proper documentation could not obtain valid licenses to drive. They still had their work obligations or school obligations but could no longer legally drive. Some people chose to deliberately break the law and either out of necessity or some other reason would drive without a license.
When they were pulled over they would be charged at least with violation of Transportation Article 16-101 (a) driving without a license. Although it is a misdemeanor punishable with up to 60 days in jail and a $500 fine for a first offense I have seen individuals actually deported from the United States for violating the statute.
The driving without a license statute had several parts. The first part was a prohibition that you could not drive without a license. A separate part provided many reasons why you could drive without a Maryland license while in Maryland. Some of the reasons included fairly sophisticated excuses such as you were a congressman or senator from another state. Some of the reasons were more mundane such as you were a traveler from another country just visiting or you were in the service and your military installation was in Maryland or you are a student at a Maryland school and simply from another state. I would argue to the court that the burden of proving the crime is upon the state and the state has the burden of not only proving that the person did not have a license, they needed to negate all of the license exceptions.
In the case of Tyrone Smith Versus State 40 A.3d 428, 425 Md. 292 (2012) the Court Of Appeals for Maryland, the state's highest court, held that the state only need prove that the defendant did not have a valid license. The other parts of the statute were affirmative defenses that the defense must raise in their own case.
I have yet to find a client who could legitimately raise the affirmative defense. By definition an illegal alien cannot hold political office, cannot properly serve in the Armed Forces, etc.
Even though it has become more difficult to defend your attorney can still make a difference. He can put the state to the test and by having a reputation for taking matters to trial the state might be more inclined to work out a favorable disposition not involving any jail time and perhaps only paying the underlying tickets such as a speeding ticket or a stop sign ticket.
Client accused of stabbing victim cleared of all charges.
Mon, Jul 2 2012 04:50 PM
My client was charged with first-degree assault. The victim claimed that my client stabbed and slashed her with a knife. Obviously the charges are serious. First-degree assault is a felony punishable with up to 25 years in prison in the state of Maryland.
After I interviewed my client I began my investigation. The incident was to have occurred at a hotel. I called the hotel to speak with the clerk that was on duty. Had there been a stabbing this clerk clearly would've noticed such a horrific event. I never received evidence from the clerk that this actually occurred.
Further, I checked on the criminal records of the victim. She was a convicted drug dealer.
My client was not at the hotel. I tried to find alibi witnesses for her.
Putting all of this together I was ready for trial. On the date of the trial the prosecution dropped the case.
Finally, because these charges are so serious and are a matter of public record I advise my client how to get this matter expunged from her record.
Unsatisfied judgment through rental car
Mon, Jun 4 2012 05:04 AM
My client rented a car. She waived the collision insurance. She had an at fault accident. Under the contract between her and the rental car company it states she is liable for those damages plus attorneys fees. The rental car company sued her for breach of contract for failure to pay. They got a judgment.
She never paid that judgment and now her license to drive in Maryland is suspended. I was somehow under the impression that this only applies if the driver is uninsured. Clearly she had the minimum liability coverage required by Maryland. The Maryland statute is written much more broadly and is as follows:
Section 17-201 "Judgment" defined
In this subtitle, "judgment" means any final judgment resulting from:
(1) A cause of action for damages arising out of the ownership, maintenance, or use on any highway or other property open to the public of any vehicle of a type required to be registered in this State; or
(2) A cause of action on an agreement of settlement for damages arising out of the ownership, maintenance, or use on any highway or other property open to the public of any vehicle of a type required to be registered in this State.
Bottom line, use a credit card which might give you collision coverage or have collision coverage on your own vehicle which would extend to the rental vehicle. She had neither. I do not see a way out of this for her other than an installment payment plan which he breached or bankruptcy which she can't afford.
Corroboration of Confession in Drunk Driving Case
Thu, May 3 2012 12:15 PM
Recently I tried an interesting case in Cecil County. It was a drunk driving case. At trial the state was able to prove that the police officer came upon the defendant who was standing next to his demolished car off the side of the road late at night. The defendant admitted to driving. The defendant's breath test was .26 BAC which is more than three times the legal limit. That was the extent of their proof.
I argued to the judge that the state had failed to prove that the defendant was driving. A mere confession in Maryland is not enough to support a conviction. There must be some independent proof of the corpus delicti to corroborate the confession. I argued that the state could have proven that he was driving independently of his confession by providing the following corroborating evidence:
1. He had the car keys with him
2. The car was registered to him
3. He had injuries on him as a result of the accident
Any of those things would be some independent evidence that he was the driver of the car.
The judge took 3 min. of thinking quietly before stating that it was a close one but finding that my client had driven the car.
Despite the extremely high blood alcohol content and despite the fact that it was a car accident, my client did not suffer a conviction. He did not receive any points for the alcohol-related offense. He was given probation before judgment. My client is in a treatment program and it is my sincere hope that this will have been his only time drinking and driving.
The Drivers License I Save May Be Your Own
Tue, Nov 29 2011 07:57 PM
My client was looking at losing his license for 120 days or paying $1000 for a ignition interlock for one year.
The allegations were that the police officer came upon a single vehicle accident. My client allegedly ran into a tree. Client allegedly refused the breast test for alcohol and his permanent license was confiscated. He kindly asked for a hearing before an administrative law judge.
I prepared as best I could with the limited information that I had and appeared with him at the hearing. I thought that I had a strong case because the DR 15 A (temporary license issued to the driver) did not specify location of the offense and the policeman involved was a county officer and not a state trooper. County officers have jurisdiction generally limited to their county, state police have jurisdiction throughout Maryland) I was ready to argue that the motor vehicle administration failed to prove that it was a police officer because we do not know what what County this occurred in and this police officer may have been outside of his County and therefore acting as a private citizen.
My hopes were dashed when into evidence came an accident report as well as the drunk driving information report. Those of those had a street address and the County. I was surprised to see those pieces of evidence. I objected but really had no grounds off the top of my head. My objection was overruled. My first argument went down the tubes.
I was prepared and still had a second argument. The temporary license was not signed by the officer or my client. I argued that my client suffered prejudice because he lost his privilege to drive without the benefit of notice and a hearing. This judge argues that the only issues before him were the seven issues specifically listed in the Maryland transportation article 16 205.1. He felt that due process is not something which is available at these hearings. His belief was that the Court of Appeals was also limiting all arguments to the seven issues. My second argument failed.
My third argument was a winner. My client spoke maybe 10 words of English and did not understand it and could not read it. I argued that my client was not fully advised as to the sanctions for taking a test or refusing a breath test as required by statute and did not make a knowing decision which I believe Foreman versus MVA stands for. The judge agreed with this argument. The judge took no action against my client's license and further my client is entitled to a refund of the $125 hearing fee.
Sometimes You Need to Push the Insurance Company
Thu, Oct 27 2011 02:40 PM
My client was driving down the road maintaining her lane. A truck passed her and cut into her lane causing a collision. Both vehicles stopped. The truck driver claimed that my client swerved into his lane. My client claimed that the truck driver swerved into her lane. Fortunately, there was an independent witness who supported my client's version. My client had an old car and the damage was sufficient to be a total loss. My client submitted the estimate of the vehicle to the truck's insurance company. They denied her request based on their driver' s story. My client submitted the witness statement to the insurance company. This witness was independent, did not know the trucker or my client and had no stake in the outcome of the matter. Still the insurance company denied her claim.
My client hired me and I filed a lawsuit in her District Court for the value of the car. My client did not suffer any personal injury. I served the trucking company. Shortly thereafter my client received the full amount of the value of her car. A smile and a stick gets you further than just a smile. At least that's how it is with insurance companies.
When is a car not a car for drunk driving purposes? When it is a shelter.
Thu, Oct 27 2011 02:35 PM
The police officer saw my client parked along the side of the road in a legal parking space with the headlights on at 3 AM. The officer circled around the block and 5 min. later my client was in the same place. The officer got out of his patrol car and took pictures of my client who was in the driver seat slumped over the steering wheel. The headlights were on, the engine was running, it was late December and very cold outside. The officer woke up my client and she did poorly on the field sobriety tests and later took a breath test which indicated that she was somewhat drunk.
At trial the state was able to prove the above things. On cross-examination I was able to confirm that the car was legally parked and properly parked and had not moved the two times that the officer saw the car. Also, the car had not run into the car ahead of it. I called several witnesses which established that my client had gone to a birthday party at a restaurant. At the restaurant she had been drinking. Because of that drinking she had a designated driver take her car to the next spot. At the next spot she drank some more, did not feel well and told the group that she would wait for them in the car. It was cold outside and she turned the car on for heat. The group could not find her and although they made several calls to her she did not pick up because she was tired and had fallen asleep in the car.
At the end of the case I argued to the judge that under Maryland law our highest court has held that in some very narrow circumstances, a drunk person may use an automobile as shelter. We were able to demonstrate that she had not driven a car drunk, that she had no intention of driving the car and that indeed she was only using it for shelter. I believe what swayed the judge was one witnesses testimony that my client had already established a designated driver when she first left the restaurant. The judge acquitted her of all charges.
I want to stress that although the above is an accurate statement of the law in Maryland in my opinion, it is a very narrow exception. In other words, this is not a recommendation that you get drunk and get into your car. Take a taxi, take a bus, call a friend, stay away from your vehicle when you are under the influence.
Client Guilty of Driving under the Influence of Drugs? Only if the State Can Prove It
Thu, Oct 27 2011 02:26 PM
The officer was told that my client was weaving all over the road and had struck a curb. The officer found my client and his front tire was flat and he was driving along on the rim. The officer stopped my client. He claimed that he smelled a strong odor of an alcoholic beverage and that my client had very poor coordination. He arrested my client for drunk driving.
At the police station my client took the breath test which registered 0.0 (no evidence of alcohol). At that point the officer concluded that my client must be under the influence of drugs and summoned the drug recognition expert and also took blood from my client to test for the presence of drugs. The drug recognition expert concluded that my client was indeed under the influence of drugs.
The burden is always on the state to not only produce the evidence necessary to convict, but also to produce evidence which must persuade the trier of fact beyond a reasonable doubt that the defendant is guilty. On the first trial date the state failed to have their evidence all together. Ironically, the prosecutor told me that he had all of his witnesses and what did my client want to do. I consulted with my client. I told the prosecutor we were ready for trial. At that point the prosecutor told me that they did not have the results of the blood test and could not go forward. I thought that to be somewhat dishonest of the prosecutor and the case was called and postponed. I did ask that the judge not grant the prosecution any further in court continuances and the judge agreed.
After this trial date I requested that my client provide me with his medical records which demonstrated that he had significant back and neck injuries. With this evidence I believed I could argue to the trier of fact that it was not drugs that caused his impairment but significant injuries.
On the second court date the prosecution did not have the drug recognition expert. Again the prosecution asked for a postponement and the judge denied this based on the earlier judge's ruling (which I had requested). The prosecution realized that they had a problem with their case and we were able to work out this very serious case down to a negligent driving disposition. My client received one point and a minimal fine.
Do Not Miss Your Motor Vehicle Administration Per Se Hearing
Thu, Sep 22 2011 02:19 PM
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:
.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.