Thomas G. WitkopLaw Offices

Law Offices

Some Tips for Complying with Probation

I can't take credit for the below tips but I think they make a lot of sense. These are tips I would generally give but I found them in one place at a courthouse and I think that somebody on probation would do well to follow them. These tips apply if you are on probation for DWI or driving under the influence of alcohol or for criminal offense or what have you....

TIPS FOR PROBATION
Read and understand your probation order. Do not lose it.
Keep a notebook.
A.    Keep a record of all phone calls, office visits, and appointments (medical,
drug treatment and counseling).
B.    Keep a record of everyone you speak to when visiting or calling (name,
title, date).
C.    Keep a copy of all documents you qive to agents (doctor slips, work slips.
and money order receipts).
Phone calls do not substitute for scheduled appointments.
Do not wait for you agent to contact you. If a month passes, contact the
Department of Parole and Probation.
If you are unable to fulfill a condition of probation, contact your agent before the
deadline.
If you are experiencing any problems, contact [1] Agent [2] Agent's Supervisor [3]
Judge or [4] Attorney.
If you believe you have been violated or will be violated, continue to report.
Pay your cost, fines, or restitution on time. If you are unable to make complete
payments, pay as much as you can.
If you change your residence, notify your agent as soon as possible!
If you pick up new charges, notify your agent immediately. Do not discuss the new
charges.
REMEMBER, YOU ARE ON PROBATION.  IT IS YOUR RESPONSIBILITY TO OBEY THE RULES. PROBATION AGENTS DO NOT GO TO JAIL ...YOU DO!!!
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Drug Dealers Can Be Liable for Civil Damages in Maryland

Maryland provides statutory law allowing the families of victims who overdose and die from drugs to bring a civil action against the drug dealer. In Courts and Judicial Proceedings 3-1601 etc. the Gen. assembly provides that "a civil action for damages for the death of an individual caused by the individual's use of a controlled dangerous substance may be brought under this subtitle by a parent, legal guardian, child, spouse or sibling of the individual." The plaintiff must prove that the controlled dangerous substance was manufactured, distributed, dispensed, brought into or transported in the state by the defendant drug dealer and was actually used by and was the proximate cause of the death individual.

The Gen. assembly went further.  Under the common law the drug dealer normally could argue that the victim assumed the risk of their injuries or was contributorily negligent. Section 3-1607 specifically prohibits that.




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Reduced Suspension at the Maryland Motor Vehicle Administration

My client stopped on Interstate 270 because he had a flat tire. The trooper came up from behind and investigated. The trooper testified that my client had an odor of alcohol and could not remember how my client did on the field sobriety tests. My client gave a breath test which indicated .08 blood alcohol content. The trooper confiscated my client's Maryland license but forgot to give him the temporary license (as is required by law).

At the motor vehicle administration hearing in front of the administrative law judge I argued that my client's due process rights to a hearing before the government confiscated his property had been violated. More specifically, the state of Maryland through the trooper took my client's license to drive (even though it was an oversight, he just forgot to give it to him) without a hearing.

I further argued that the trooper did not have reasonable grounds to believe that my client was operating a vehicle under the influence of alcohol based on merely an odor of alcohol and unknown field sobriety tests.

Unfortunately, the judge did not find that my client had been deprived of his property (interest in keeping his privilege to drive) without due process. The judge argued that my client's license was not suspended even though the officer never returned the license. I argued that his license may not have been suspended but for him to operate a motor vehicle without a license is a crime in Maryland and he therefore suffered prejudice and no action should be taken. The judge rejected that argument claiming that my client was only prejudiced for one day and consequently she would give him credit towards his suspension.

As to the lack of reasonable grounds the judge found that at least a moderate odor of alcohol is sufficient for there to be reasonable grounds for the officer to request that a breath test be taken.

Based on the judge's findings the maximum suspension my client could have would be 45 days. I argued to the judge that if she was willing to let one of the days go let 30 of the days go and only impose a 15 day suspension. Based on my client's excellent driving record, the fact that he had completed an alcohol education course and because the state of Maryland did make a mistake by confiscating his permanent license and not handing him a temporary license the judge reduced the suspension for 30 days to include work purposes, medical purposes, education purposes, and alcohol treatment purposes.

Even something as mundane and everyday as drinking and driving involves principles of constitutional law, statutory law, case law and even regulations. Through hard work and persistence I was able to at least reduce the sting of the suspended license for my client.
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Ignition Interlock and the Maryland Motor Vehicle Administration

Some months ago my client accepted the ignition interlock alcohol detection device as an alternative to out right suspension of his driving license. He had an old car in not particularly good condition and other problems.

Ignition interlock is a device you put on to your car which requires you to submit a breath sample prior to starting the car and often will ask for a test while the car is running. When you accept ignition interlock you further accept a substantial list of rules which you must follow or you will be found in violation. In the state of Maryland, if you have more than one violation per month over at least four months you will be terminated from the program. My understanding is that if you have several violations in one month that will only count as one violation in that month. The point is, even one violation per month for more than three months will terminate you and your license will be suspended.

In my case my client was alleged to have committed the following violations:

Power disconnect
breath test in excess of .02 blood alcohol content
rolling test refusal

The motor vehicle administration claimed that he had four months where he had violations and they were attempting to suspend his license for six months.

We went to the hearing armed with facts to challenge some of those allegations.

At the motor vehicle administration we were able to refute the rolling test refusal claim. A rolling test refusal is when you are driving along and the ignition interlock alerts you that you need to provide a breath sample. He had three such violations. They give you the date and the time of the violation.

On one of violations we were able to establish that it was a single violation and my client had the radio on so loud he could not hear the ignition interlock requesting that he provide a sample. We argued that there was only one such request and he just could not hear it.

On the second rolling test refusal we were able to establish through auto shop records that the client's car was in the auto shop at the time of the rolling test refusal. We had an invoice from the repair shop stating the date and the time that the car was with them.

On the third rolling test refusal we were able to establish that the client had locked himself out of the car and had summoned AAA. We had a letter from AAA indicating the date and time that they were providing the service.

As to the power disconnect we had evidence from a car mechanic which stated that a low battery and a bad battery connection can interfere with proper functioning of the ignition interlock.

We were not able to refute the breath test findings.

Nonetheless, because the motor vehicle administration was not able to prove more than three allegations the judge found in our favor and declined to suspend my clients license.

If you are having trouble with the ignition interlock and the motor vehicle administration wants to suspend your license, contact me and I'll be happy to help you.
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Obtaining an Order of Protection in the District Of Columbia

domestic violence is a serious problem and it crosses all barriers of age and gender and socioeconomic status. Relief is available in Washington DC.

If you are in fear you should obtain an order of protection. A civil protection order is a Court order by a judge which can last up to one year which usually prohibits the abuser from contacting the victim. The civil protection order is delivered by an officer to the abuser. This is a court order. If the abuser violates the court order he can be incarcerated and charged separately with additional crimes. In the District of Columbia you can obtain a civil protection order at the Domestic Violence Intake Center located as follows:

DC Superior Court
Domestic Violence Intake Center
room 4235
500 Indiana Ave. NW.
Washington DC
202-879-0152
also normal business hours

Domestic Violence Intake Center
Suite 311
1328 Southern Ave. SE.
Washington DC
202-561-3000
hours of operation are 8:30 AM through 3:30 PM

If the situation requires immediate attention you need to contact the police at their emergency number 911

If you need to get out the following provide shelter, outlines and counseling:

House of Ruth 202-347-2777

My Sister's Place 202-529-5991




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Use of Medical Marijuana More Liberalized in Maryland

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.
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Driving without a License in Maryland

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.
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Client accused of stabbing victim cleared of all charges.

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.
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Unsatisfied judgment through rental car

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.
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Corroboration of Confession in Drunk Driving Case

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.
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