Thomas G. WitkopLaw Offices

Law Offices

Preliminary Injunction Civil Protective Order in Washington DC

Washington DC does have a vehicle for a civil protective order. It is a straightforward procedure if the victim and defendant are related by blood, adoption, marriage, domestic partnership, have a child in common, share or have shared the same home, or have previously had a dating relationship. Additionally, if the person you are currently in a relationship with has an former partner who is threatening you you can get a civil protection order also. It also protects people not in the above type relationships who are victims of stalking, sexual assault or sexual abuse.

The procedure is fairly straightforward and the DC code tells you how to do it.  Refer to  DC code section 16-1000 etc.

But what happens if you don't fit into that category and are being threatened. The procedure is more complicated. The district allows you to file a civil complaint requesting a temporary restraining order followed up by a request for an injunction. The steps are more involved and the process can take several court hearings. I recently had such a case and share some very basic observations:

Based on my legal research it is my opinion that in  order to succeed with the injunction the following four factors need to be proved:

1. Likelihood of irreparable harm if request is not granted (this is the most important factor)
2. Likelihood of success on the merits of the underlying action
3. The "balance of injuries" favors giving injunction
4. Public interest would be served by granting the injunction

The burden of proof that you as the petitioner must overcome is clear and convincing proof. That is the second highest level of proof in the American justice system only somewhat below "beyond reasonable doubt".

In this particular case I call the victim who testified as to the threats made by the defendant. The victim testified very credibly and consistently. The defendant took the stand and his testimony was not presented well. I made a tactical decision not to cross-examine the defendant because I did not think that he hurt my client's case and he did not help his case.

Thereafter I put on a rebuttal witness who basically confirmed what the victim said and further rebutted what the defendant said.

The judge was able to make a decision without hearing closing argument. He favored my client's testimony and granted the preliminary injunction preventing the defendant from having any contact with my client, the victim, for one year.

If you are in a situation where you need a civil protective order or a Temporary Restraining Order I have both prosecuted and defended these in the Superior Court for Washington DC.


Brief Observation on DNA Evidence

Recently I was at a DNA seminar and there was a point well made. Consider the following matrix:

Offense: Rape
Activity: Intercourse
Source: Linens from the bed
Substance: DNA

The offense in the case is rape, the activity is intercourse, the source are the sheets and the substance found is the defendant's DNA.

The prosecution would have the jury believe that the DNA is from semen and therefore a rape was committed. The defense must challenge where that DNA came from. It could've come from a skin cell, hair, or blood. It did not necessarily come from semen. It would likely establish that the defendant was there but it does not conclusively prove that the defendant provided DNA from his semen.  If there is no semen there may be reasonable doubt that intercourse let alone rape occurred.

The point is, just because DNA is present doesn't mean that the defendant did something illegal.

Violation of Probation Dismissed

My client was on probation in the District Court of Maryland. His probation was from January 2013 through January 2014. While he was on probation in the District Court it was alleged by the department of parole and probation that he failed to report as required, that he committed new crimes, that he failed to pay restitution, that he failed to pay probation fees. In short, he did about as badly as one can imagine on probation. The case was heard in the District Court (With a different attorney) and the judge found him in violation of probation and sentenced him to 18 months in jail.

In Maryland the defendant has the right to appeal such a finding to the Circuit Court and have a new hearing on violation of probation. It was at this point that he hired me. I reviewed the facts in the file and it became clear to me that the petition for violation of probation was filed some 20 days after the defendant's probation had expired. In Maryland, in the District Court, at the current time, a petition for violation of probation must be filed during the time that probation is active or within 30 days of the violation, whichever is later. In this case the petition was filed substantially after probation had closed. In my opinion the petition was not timely filed and should be dismissed.

When the appealed case was presented in the Circuit Court I made this five-minute argument. The circuit court judge was very familiar with the statute and the petition was dismissed. Rather than spending 18 months in jail my client was able to go about his business.

When facing a violation of probation it is very easy to lose and lose badly. It is important to have an attorney who is familiar with the various aspects of this specialized area of the law.

Prosecution of red light camera tickets in Montgomery County

I recently received a red light camera ticket in Montgomery County and thought that I would share my experience. Repeating what is generally in the notice that the registered owner receives, you cannot get points and the ticket cannot be used to increase your insurance rates. The tickets are annoying and somewhat expensive. The suggested charge was $75 for my alleged failure to stop for a red light.

I sent in the form and requested a trial. On the trial date I had a conflict. They were very civilized about it and I contacted the Rockville city Police Department by telephone and they told me they would postpone the case. Initially I thought I needed to file a continuance in the District Court which is normal but the District Court doesn't seem to accept those motions.

Regardless, I received a new trial date.

In preparing for your trial you should check your ticket carefully. It will give you the ability to review full-color images and a moving video at a website listed on the top right part of your ticket. Put in the citation number and the pin number and you can watch your actions in living color. In my case the video clearly showed me stopping past a faded white line. There was no question that my vehicle came to a complete stop. Not a rolling stop or a California stop.

Armed with this knowledge I went to court.

When you get the court representatives from the city of Rockville will be present prosecuting the case. They will have a computer and a large video screen. They will have the videos that were recorded available to play for the court. Apparently no matter how you plead the judge wants to see the video to determine the extent of your guilt. Frankly, everybody ran the red light quite clearly. Most people slow down significantly but absolutely nobody stopped. Based on the situation the court usually reduced the fine but did add court costs. Usually people got out of there spending about $65 total rather than $75. The docket took about 1 1/2 hours so it might not be worth your time. I did not see a single acquittal.

Onto my personal case. I will say they ran the docket in alphabetical order and they use the person's first name. Thomas is pretty far down the alphabet so I was able to watch what was happening with everybody else. I appear in court for a living so my approach was somewhat different.

Initially I argued that the citation they mailed me was fatally defective because it did not comply with the language required by the transportation article. The judge did not consider that argument very long and rejected it.

Thereafter we went through the video. It was quite clear that the stop line was not "clearly marked" as required by the statute. It was also clear that I went over the stop mark before coming to a full stop. I argued to the court that the line was not properly painted and more strongly argued that obviously my vehicle did come to a complete stop. The court took the argument well and did not impose a fine upon me, it still imposed $22.50 in court costs.

Not sure if it's worth going back if something like this happens again. It bothers me somewhat that I received a ticket from a machine that a police officer would not have written. I received a ticket for a hypertechnical violation.  It is also somewhat bothersome that the ticket was issued for an event that occurred in almost Gaithersburg and the trial was held in Silver Spring. I don't know why the trial would not be held in Rockville.

I can't imagine the upside of having the services of an attorney in a case of this nature. I think that I did better because the facts were on my side, not so much the law.
Comments Show Comments

Ignition Interlock and False Positive Alcohol Readings

I recently defended a violation of probation case for drunk driving.  As part of the probation my client was ordered to enroll in the ignition interlock program.

My client was doing fine on the ignition interlock program for almost 3 years until one dayhe became very ill.  He was ill all day vomiting on frequent occasions.

Unfortunately he needed to go out for a little while to run an errand.shortly before the air and he had thrown up.  After throwing up he drink some orange juice to clean the taste out of his mouth.

When he started the car he needed to blow into the ignition interlock.  It registered .028  blood-alcohol content. The car would not start.  He waited 5 min. and gave another breath sample and this time it was .019 blood-alcohol content.The car started and he was on his way.

One of the functions of ignition interlock is that the device on the car reports all activity to the ignition interlock people.  The ignition interlock company reports the activity to the probation agent.  The probation agent received the report of the interlock device.

Based on this report the agent filed a petition for violation of probation. My client was facing 60 days in jail.

My client advised that he had not been drinking since she had been put on probation.  He was living a clean and sober life.  I had a witness who had been with my client all day and could confirm that he was not drinking and that indeed he was very ill.

More importantly, as it turns out, I researched the code of Maryland regulations which regulates implementation and use of the ignition interlock device.  In the code of Maryland regulations it advises that if a participant provides a sample of .025 or greater they are in violation of the program, however, if within 5 min. they provide a sample which is less than that amount it is considered a false positive and not a violation.

Additionally, on the website of the ignition interlock provider they had a video introducing the participants to the features and other details of the ignition interlock device.  On the website it clearly stated that the device will detect even molecules of alcohol.  It warned against using mouthwash (which contains alcohol), medicine which contains alcohol before taking the breath test.  Further, it advised that eating right fruit, sweet juices, or even eating pizza shortly before using the ignition interlock device could lead to a false positive.  All of these food items could rapidly ferment in the stomach creating trace amounts of alcohol fleeting to the false positive.

In my case, my client drank some orange juice shortly before taking the test.  Waiting 5 min. allowed that temporary alcohol to dissipate resulting in the dramatically lower number.

At trial the probation agent testified he would have violated my client for any positive reading.  The probation agent had no idea about the code of Maryland regulations which stated that anything under .025 blood alcohol content is not to be considered a violation.  The trial judge noted the huge difference between the two results and found that the device is nowhere near as accurate as a normal breath machine used by law enforcement.  Based on this discrepancy and the code of Maryland regulations the judge found that my client was not in violation of probation.

If you have the ignition interlock device installed on your vehicle and you truly are not drinking and you receive a positive reading for blood-alcohol content, there could be an innocent reason for that.  if you are facing these troubles contact me and I can try to help


Is This How Homeowners Insurance Normally Works?

Recently I handled a breach of contract in a homeowners insurance case.  The facts seemed straightforward enough but the way the homeowners insurance address the matter seem strange.  The insurance company is one of the major players in the American market.  I don't think I need to name them because I believe it could've been any of the companies.

The facts are as follows.  The homeowner was in his 70s and had been with this company for several decades.  He had owned his home for more than 50 years.  He was a veteran who was honorably discharged and he was retired.  He may have been widowed, he was living alone.  Early on in 2014 he had a heart attack.  That heart attack put him in the hospital for several weeks.  After he was discharged from the hospital he was put into a rehabilitation center for several months.  Early on in the hospital one of his relatives told him that the roof of his home it sprung a leak through the roof.  They promptly contacted his homeowners insurance company.  Several weeks after contact the homeowners insurance contracted with a company to put a tarp over the roof.  By that time the water had entered the home and damage was done and there was a mold problem.

Rather than tackle the problem immediately the homeowners company kept dragging their feet.  The man's relatives would give estimates to the insurance company for the work that needed to be done.  For whatever reason they would not pay the estimates.  The home was uninhabitable.  When the man was done with rehabilitation he had to live in a hotel.  The homeowners insurance was paying that but they would not take care of the home.

Finally in September or October of this year the family hires me because the insurance company wants to take an examination under oath of the homeowner.  An examination under oath is similar to a deposition.  It is normally in the insurance policy that the insured has an obligation to reasonably cooperate with the insurance company.  Why they wanted to take this examination of this man was not clear to me.

After I was hired I contacted the insurance company and requested the full policy.  The policy was approximately 20 pages long.  It seemed like a fairly standard policy in that the first couple of pages provided the benefits that the insured would receive in case of a loss and the next 18 pages systematically limited or withdrew those benefits.  There were sections in the policy about lack of coverage if the home is vacant.  There were other sections about lack of coverage if there was lack of maintenance.

I was thinking that they would deny coverage because the home was vacant and he was in the hospital.  I was thinking they would try to deny coverage because perhaps they would argue that he was negligent in maintaining his roof.  In either case I was thinking this is outrageous.  The man pays premiums for decades and has a heart attack and they're going to claim that he had left his property vacant?  They were going to claim that he was negligent in not maintaining his roof?  His roof was watertight, he had no evidence or notice that there was any problem until the leaking began.  I was thinking this was a wonderful case to present to a jury for breach of contract.  Retired war veteran is insured for decades with his company and it takes them more than one half of the year to resolve the problem.

The attorney that took the examination of the insured was decent.  She was just following orders.  She took her information.  When she was done with the examination I made it quite clear that this was outrageous conduct on behalf of the insurance company.  They kept this man many months out of his home because they were looking for ways to deny coverage.

Ultimately they agreed to pay one of the estimates that the homeowners had provided.  It was one of the medium estimates.

Strangely, along with the check payment came a full release.  The full release made no sense to me.  What if during the repair of the home they discovered more damage from the water leak.  My client would be prohibited from making a further claim.  I spoke to a colleague who regularly represents insurance companies and he advised this is quite normal.  It makes no sense to me.  For a contract to be valid there must be consideration.  Consideration is a legal term meaning there needs to be something of value exchanged during the contract.  The insurance company wasn't giving anything extra, they were providing what they were obligated to provide in exchange for the premiums.  They were obligated to provide coverage.  They provided that coverage.  If there was more damage they should be obligated to pay for the extra damage.  My client was tired of fighting and he accepted the release.

I also argued to the insurance company that they must guarantee that they will not cancel his coverage because of the claim.  It is not unusual in a homeowners claim for the insurance company to cancel the policy after the claim.  What a business.  Can you imagine going to a restaurant, ordering the food, receiving the food and then only being able to look at it.  You can't touch the food.  Kind of like homeowners insurance.  If you use it you lose it.  The insurance company would not guarantee that either.

At least I got my client coverage for his loss.  I wish I could've done more.

I think that the take away from this is read your homeowners policy.  You might have much less coverage than you think you really do.

Personal injury and subrogation by health insurance

If you have been injured in an accident which is the fault of another and you have health insurance benefits you should be aware that the legal landscape has been changing in favor of the health insurance companies. This blog is more of a heads up rather than a full legal treatise. In other words, it is putting you on notice rather than fully informing you of your obligations to your health insurance company.

1. If you have Medicare or Medicaid there is a detailed and somewhat cumbersome process in terms of reimbursing any payments that they have made on your behalf. If you do not make proper reimbursements it is possible that they can come after you and also your attorney and perhaps even the insurance company of the tortfeasor.

2. If you are self-insured, and sometimes that is not obvious because it seems like an insurance company is administering the self-insurance plan, you are likely required to pay back 100% of any benefits that they paid. A recent Supreme Court case, U.S. Airways, Inc. v. McCutchen, 2013 WL 1567371 (2013), was a unanimous decision where the Court ruled that equitable principles (e.g., the Made Whole Doctrine and Common Fund Doctrine) cannot override the clear terms of an ERISA Plan requiring reimbursement.   If you have a Employee Retirement Income Security Act health insurance plan, you should consider this when resolving your case.

3. If you are not self-insured and you are health insurance is provided by a payor as defined by the Maryland code which I include for your convenience below, generally the subrogation amount is reduced by the same percentage as the attorney fees. In other words, if the payor is claiming $6000 as subrogation that $6000 would be reduced by the percentage attorneys fees (for arguments sake let's say the attorney receives one third of the award) that would reduce the subrogation claim to $4000. Sometimes a payor will argue that they are controlled by federal law which supersedes state law. As you can see this can get somewhat complicated. You should at least be aware of it.

What I find particularly interesting is that the payor has no obligation to advise you that you have the right to have the subrogation amount reduced. Look at the statute below and you will see that in Maryland, "no obligation to advise.-A payor has no obligation to advise an injured person or an attorney for the injured person of the injured person's right to reduction of the subrogation claim described..." In other words, the insurance company is legally allowed to hide the ball from you.

When choosing your personal injury attorney choose one who is aware of the various pitfalls that are part of the case.

Health Gen. Article Section 19-132 Defines Payor As Follows:

(m) Payor. -- "Payor" means:

(1) A health insurer or nonprofit health service plan that holds a certificate of authority and provides health insurance policies or contracts in the State in accordance with this article or the Insurance Article;

(2) A health maintenance organization that holds a certificate of authority in the State; or

(3) For the purposes of this Part III of this subtitle only, a person that is registered as an administrator under Title 8, Subtitle 3 of the Insurance Article.

Courts and Judicial Proceedings 11-112 addresses reduction in subrogation claims by the health insurance company. More specifically:

(a) "Payor" defined. -- In this section, "payor" has the same meaning stated in ยง 19-132 of the Health - General Article. 

(b) Applicability of section. --

(1) Except as provided in paragraph (2) of this subsection, this section applies to any right of subrogation under a contract or applicable law for payment of health care benefits or services for an injured person paid or payable by a payor or under any system of self-insurance or indemnification for health care expenses, if the amount of the subrogee's claim as determined under subsection (c) of this section is voluntarily paid by the injured person from the injured person's recovery in a claim for personal injury.

(2) This section does not apply to a voluntary reduction of a subrogation claim by a payor that exceeds the reduction of the subrogation claim described in subsection (c) of this section.

(c) Reduction related to attorney's fees incurred. --

(1) Unless a subrogee files a petition to intervene in the personal injury action and is independently represented by counsel, in a subrogation claim arising out of a claim for personal injury, the amount permitted to be recovered by a payor for health care benefits or services paid or payable on behalf of the injured person shall be reduced by the amount that is determined by:

(i) Subject to paragraph (2) of this subsection, dividing the amount of the total recovery in the claim for personal injury into the total amount of the attorney's fees incurred by the injured person for services rendered in connection with the injured person's claim; and

(ii) Multiplying the result under subparagraph (i) of this paragraph by the amount of the payor's subrogation claim.

(2) The percentage under paragraph (1)(i) of this subsection may not exceed one-third.

(d) No obligation to advise. -- A payor has no obligation to advise an injured person or an attorney for the injured person of the injured person's right to a reduction of the subrogation claim described in subsection (c) of this section.

(e) Certification regarding fees incurred. -- On written request by a payor, an injured person or an attorney for the injured person who demands a reduction of the subrogation claim described in subsection (c) of this section shall provide the payor with a certification by the injured person that states the amount of the attorney's fees incurred by the injured person for services rendered in connection with the injured person's claim.


Emergency Vehicle Move over Laws

A law that has been on the books for many years seems to be getting fresh use by the police for pulling over vehicles. Police are using this relatively unknown law to stop vehicles and write tickets and check for drunk driving among other offenses.

In the transportation article section 21-405 it addresses "Operation of Vehicles on Approach of Emergency Vehicles."

Now some parts of this law are obvious and generally everybody knows them.

On the immediate approach of an emergency vehicle using audible and visual signals the driver of every other vehicle shall yield the right-of-way;

On the immediate approach of an emergency vehicle using audible and visual signals the driver of every other vehicle shall immediately move to a position parallel to and close to the curb or edge of the road;

On the immediate approach of an emergency vehicle using audible and visual signals the driver shall stop and stay in this position until the emergency vehicle was passed. (Please note I am paraphrasing the statute and this is not exactly what it says but close enough for this blog post)

What is much more subtle and virtually unknown is what is the driver' s obligation when passing an emergency vehicle which is stopped and displaying any visual signal? The law states exactly as follows:

(1) if practicable and not otherwise prohibited, make a lane change into an available Lane not immediately adjacent to the emergency vehicle with due regard for safety and traffic conditions; or
(2) if the driver of the motor vehicle is unable to make a lane change in accordance with item (1) of this subsection, slow to a reasonable and prudent speed that is safe for existing weather, road, and the vehicular or pedestrian traffic conditions."

In plain English this means if you see a police car or other emergency vehicle on the side of the road with emergency lights on you should have at least one lane of traffic between you and that emergency vehicle or risk being pulled over and given a citation or worse.

The suggested fine is $110 and you get either one or two points for this moving violation. If you do get such a citation remember to ask for a trial (and not a hearing) in order to contest the charge.

New Montgomery County Maryland Marijuana Prosecution Policy

I have news which should be of interest to  persons charged with less than 10 g of marijuana and/or possession of marijuana related paraphernalia in Montgomery County. Please bear in mind I am a private attorney. I am in no way related to the prosecutor's office nor am I a spokesperson for the States Attorney for Montgomery County. Nonetheless, I am in court on a regular basis and it appears that the prosecutor's office has taken a new approach to the prosecution of "personal use" marijuana crimes.

It appears that in exchange for a payment of $100 to a general fund the prosecution is dismissing the cases outright. I am not saying this happens in every case. I have no idea what happens if the defendant has prior criminal contacts or convictions in general or even prior marijuana contacts but I can say that I was observing universally that in exchange for a $100 payment made on the trial date the prosecution was entering the cases nolle prosequi (dismissing the cases). In my mind, from a criminal standpoint, that is excellent news to the person charged.  From a medical standpoint, if they have a marijuana problem (in my opinion it is not necessarily a safe drug as many would like to believe) then they are not getting any treatment for the drug use.  From a criminal defense attorney's point of view it substantially reduces one area of income generation. I believe I would be hard-pressed to tell a client to hire me even if the state has a weak case and my client has a very strong defense against the marijuana charge. There is always risk a trial. Why not just pay the $100 and the case gets dropped and the defendant can immediately request expungement of the record.

I will update this post as my knowledge and experience of this situation develops.


Pedestrian Settles Case against the Driver That Struck Her and Her Own Insurance Company

It was a beautiful springlike day and my client was leaving Temple services in Washington DC. She was crossing the street in the crosswalk. Unknown to her a car was approaching and the driver was apparently blinded by the glare of the bright sunlight. He never saw her and struck her putting her on the hood and her face against the windshield. I am thankful that she was not killed or maimed but she did break her nose. She was taken to the hospital and stabilized.

Unfortunately the broken nose was sufficiently bad that it required surgery. The surgery went well but was painful. Moreover, my client began developing extreme anxiety about being in a car and around cars. Whenever she would have a close encounter, near accident experience, it would basically paralyze her from terror. She sought counseling for this.

Of course we made a claim against the driver of the vehicle. Unfortunately, the policy limits on his insurance were minimal. My client was just a pedestrian and had no insurance of her own. Or did she? My client was extremely helpful and we began researching what insurance might be available to her. We were able to determine that she was still on a policy of insurance with her parents and that policy was way beyond minimum limits.

We made a claim against her underinsured motorist coverage. Her company acknowledged that they would provide coverage but they significantly undervalued the claim. Rather than protracted and uncertain litigation I suggested that we try mediation. Her insurance company suggested several mediators. I did not counter with my own mediators because I wanted this to work out. My reasoning was that they would more likely listen to the advice of a neutral mediator that they selected over one but I selected. We were able to agree on the mediator and went forward.

My client had medical expenses of approximately $19,000, obviously some initial pain and suffering from the injuries, mental stress from the accident and potential long-term problems such as increased risk of sinus infection. The mediator was very able and persuasive to both sides. The mediator painted a real picture of the benefits and risks of not resolving the case. The defendant clearly ran down my client in the crosswalk. My client, from outward appearances, looked just fine. The driver did not intend to run down my client. My client was a very sympathetic and well spoken person whom I believe a jury would like very much.

We were able to resolve the case to the satisfaction of my client.

Even though we were done with the mediation I was not done with the case. There is the matter of the competing releases. A release is a contract wherein you forever give up your right to make a claim against the released party. In this case there were two released parties and two releases. The driver of the car sent a release basically stating that once my client signed that release it would prevent her from making claims against anybody in the world. Her insurance company sent a release basically stating that once she signed that release it would release them and everybody else in the world from any claims. Clearly these releases contradicted the mediation agreement. Rather than have my client simply sign the releases I added language making it very clear that she was settling with both parties simultaneously. Further, there was still the matter of reimbursing her health insurance. Most health insurance contracts will have a subrogation clause. In other words, if the health insurance pays out benefits and a third party is involved that caused the injury and pays money through judgment or settlement, the health insurance company gets their money back. In this particular case I was able to negotiate a substantial reduction from the claimed health insurance which put more money into my clients pocket.

When you are involved in an accident remember to consider additional insurance possibilities.  Considering the mediator is critical. I have been practicing in the Rockville area since 1986 and I knew the mediators that the insurance company provided. I picked the mediator that I believe would be most beneficial to my client and I believe that the results speak for themselves.
See More Posts...