Thomas G. WitkopLaw Offices

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Car Accident and Montgomery County Juries



I just finished a three day jury trial in a fairly normal car accident case with some unfortunate twists.  My client was involved in a car accident in September of 2008.  The other driver made a left turn in front of him and my client broadsided the car.  The other driver was clearly at fault assuming you are reasonably intelligent and not an insurance company.  My client suffered some injuries to his neck and later on they spread down to his back.  His wife was a passenger in the vehicle and she also suffered some injuries.

Both of them went to the emergency room later that evening complaining of injuries to their neck.  They were referred to see their own doctors if the problems continued.  Both of them went on to see their own doctors for follow-up therapy.  Both were basically diagnosed with whiplash type injuries affecting their neck and back.  They went to conservative treatment which was basically physical therapy.  My client did not resolve after approximately 8 months of conservative treatment.  His doctor, who treats several thousand people annually, did the normal, conservative and intelligent thing and ordered an MRI.  The MRI showed that my middle-aged client had significant degenerative changes to his spine.  His doctor recommended that my client see a pain management specialist.  The pain management specialist gave my client epidural injections over the next year which helped somewhat.

I received the case from another attorney sometime after the lawsuit was filed and seven months before trial.  I found my client to be a decent person and sympathetic if not somewhat forgetful.

His forgetfulness I believe cost him somewhat in the case.  After a lawsuit is filed the parties conduct discovery where they learn about the other party's case.  In this case the insurance company requested that my client answer interrogatories which are formal questions under oath.  My client did so.  Some of the interrogatories somewhat asked if he had prior injuries.  My client did not reveal prior injuries.  Also during discovery depositions are taken.  My client was asked point-blank if he had any prior injuries to his neck or back and he replied he did not remember.  Also during discovery the insurance company tends to subpoena the medical records for approximately the past 10 years from the client's slick medical providers.  I received documentation which seemed to indicate my client had pre-existing injuries.  I asked my client about this but he truly could not remember.  Finally I received actual records showing that my client was in physical therapy with his treating Dr. just five months before this accident of September 2008.  I truly believe my client did not remember that he had been seeing his doctor earlier but it did not look very good in front of the jury.

When the case came to trial I explained to the jury immediately that my client had prior injuries before the accident.  I explained that my client just did not remember this.  I also explained that 2 1/2 years after the accident he had another accident also injuring his neck and back.  My client had $22,000 in medical expenses and was pretty miserable from the time of the accident until the time of the second accident (I was not asking for compensation after the second accident because the doctor could not cleanly differentiate the adverse effect of each accident).

His wife's case was also tried at the same time by a colleague.  She had $16,000 in medical expenses.

Other than forgetting I think my client testified fairly well.  His employer did not like him because he was not able to do his job very well but he couldn't do his job very well because of the injury.  My client's doctor testified quite well.

The defendant testified how the accident happened.

The insurance company for the defendant hired their own medical doctor to review my client's medical records and examine my client.  Of course he would claim that my client injuries were either not related or were fairly minimal.  I subpoenaed that doctor's financial records including his 1099 forms for the past five years and his income taxes.  I was able to show the jury that this doctor received easily $500,000 from insurance companies to testify on their behalf.

At the end of the case I asked that the judge find that the defendant driver was liable as a matter of law for the accident.  The judge granted that request based on the evidence.  The jury was only required to determine the extent of each party's injuries.

The jury awarded $10,000 in medical expenses to my client and $200 in pain and suffering.  For his wife she received $16,000 in medical expenses and only $600 in pain and suffering.

Unfortunately, this result is not unusual and Montgomery County.  I tried to avoid trying the case in Montgomery County in front of a jury but could not.  Everybody lived in Montgomery County and the accident occurred in Montgomery County.  The insurance company knew what Montgomery County juries do and refused to arbitrate the case.  On the morning of trial I asked if they would let the case be tried by a judge but they declined that also.

There is no lesson here.  It is simply worth noting that Montgomery County juries are not usually generous when it comes to whiplash/ soft tissue injuries.
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Rape and immigration consequences



I recently resolved a case where the stakes were rather high: incarceration and then deportation.

My client was a lawful United States resident and has been here for many years.  He has an American child.  His girlfriend and mother of the child accused him of raping her.  He was arrested, charged with second-degree rape which is a felony in Maryland and locked up.  Not long after that his girlfriend recanted her story and basically claimed that she accused him of rape because she was jealous that she thought he was seeing someone else.

One might think the case would go away on its own.  Unfortunately my client did not invoke his right to an attorney and the police interrogated him.  The prosecution kept claiming that my client confessed to the rape.  I watched the alleged confession.  If it was a confession it was pretty slim.  Nowhere in the confession did he say "I forced myself upon her" or "I know that I raped her".  At best it was my emotions overcame me.

The physical evidence of rape was also equivocal.  There was some mild injury to the vaginal area which could be consistent with rape or merely rough sex.

The prosecution had a problem.  The victim had recanted and their physical evidence was not particularly strong.  The defendant had a problem, if he was convicted of rape not only would he be a felon, not only would he likely have substantial incarceration, he would thereafter be deported and lose everything he earned in the United States.  I should point out that he has worked here legally for many years at the same job and pays his taxes.

The prosecution wanted a conviction, my client wanted to remain in this country and avoid lengthy incarceration.  The state and the defense were able to resolve this case through a guilty plea to the misdemeanor of second-degree assault.  There needed to be some careful legal maneuvering.  The rape could not simply be amended to second-degree assault.  A brand-new count of assault needed to be added separately so that negative immigration consequences could be avoided.

I am pleased to report that the case resolved, my client is again working and this difficult matter is behind him.  Assuming he lives his life as he always has lived it, within the bounds of the law, there is a possibility that we can even get the misdemeanor assault conviction stricken.

If the client is not a United States citizen and is facing criminal charges, he needs an attorney who can pay attention to the details and provide a vigorous defense so as to minimize not only incarceration but immigration consequences.
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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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