Thomas G. WitkopLaw Offices

Law Offices

Just because the police officer says you're drunk does not necessarily mean that you are drunk

My client was just acquitted on all charges for drunk driving after a trial on the merits. The police officer stopped my client for speeding. He smelled a strong odor of alcohol, claimed that my client's speech was slurred, his eyes were bloodshot and watery, that he put his foot down five times on the one leg stand test and raised his arms too high and that he took too many steps on the walk and turn test and missed heel to toe. Also my client admitted drinking two shots of alcohol and one beer. The officer was of the opinion that my client was intoxicated.

On cross examination the officer admitted that other than speeding my client was driving the car in a normal manner. My client was able to produce his license from his wallet without any problems. My client communicated accurately with the officer. The officer wasn't positive as to the surface where the Field sobriety tests were done. The officer could not remember if there was anybody else in the car (my client had a very drunk woman in the car who smelled of alcohol). The officer could not remember if he himself lost his balance showing the Field sobriety tests.

We had a witness who stated that he was the DJ at the bar where my client was. He saw my client come in and thought my client was sober. My client was there one hour. When the bar closed my client felt the DJ unload all of his equipment including two 150 pound speakers which were on telescopic stands. My client wrapped up the electrical cables in a neat fashion. My client peeled tape off the floor. My client had no trouble doing these things and left right after that and within five minutes. By the officer. The DJ thought that my client was sober.

My client testified that he had had one shot and had ordered two beers but realized he was on antibiotics and only drink the shot and half of the beer. My client thought that he was sober.

The judge could not find beyond a reasonable doubt that my client was intoxicated or under the influence or even impaired and acquitted him of these charges.

The point is, just because the state claims something is so, does not mean that the trier of fact will believe that beyond a reasonable doubt.

New Maryland Procedure: Drivers Must Notify the Court after a Moving Violation

As of January 1, 2011 drivers receiving a moving violation in Maryland have a different procedure. In the old days, the court would automatically send them any notice of a court date. This is no longer the case.

Drivers who receive a moving violation ticket must now affirmatively act within 30 days after receiving the ticket by either paying the ticket for requesting a trial date. If they do neither their license will be suspended. They must do one or the other to protect their driving privilege.

A Good Lawyer Knows the Judge

There is a saying that a good lawyer knows the law but a great lawyer knows the judge. Allow me to toot my own horn.

Recently I represented one of four codefendants in a massive shoplifting spree. All four codefendants had lawyers and all four cases were set on the same trial date. The prosecution offered guilty pleas to two counts of theft and would recommend probation to the judge. Three of the defendants on the advice of their attorneys took these guilty pleas expecting to get probation.

I investigated the evidence further and was very concerned with what this particular judge would do with a shoplifting spree of this nature. The three defendants who were pleading guilty would admit to going through no less than four different stores in a one-hour time span stealing over $1500 worth of merchandise. Even though the prosecution was recommending probation I was concerned that the judge would incarcerate these other defendants. My client was also a green card holder and a felony conviction, which was offered, would have exposed him to immigration consequences including deportation.

Based on my investigation and uneasiness I elected to go to trial. Before my client's trial began the other defendants actually pled guilty in front of the judge and each defendant received either six months in jail or three months in jail and the judge set an appeal bond of $50,000. This basically guaranteed that these defendants would remain in jail while the matter worked its way through the system. I was very pleased not to take the guilty plea on behalf of my client.

Based on the fact that the judge had now heard three guilty pleas and was quite familiar with the "facts" of the case it was decided that this judge might not be able to fairly hear this case. Because we elected a trial we were sent to a different judge for the trial.

In my case my client was charged with six counts of various forms of theft. After the trial my client was acquitted of five of the six counts. On the only count upon which he was convicted in my case, he was sentenced to 30 days of jail which is certainly much better than three months or six months in jail. Further, my client's appeal bond was only $4000 instead of $50,000. Knowing what the judge might do and fighting for my client saved my client a great deal of jail time.

False Peace Order Accusation

My client was accused of stalking a stranger. She claimed that my client was following her for approximately 10 minutes at 12:20 PM on November 29 in Silver Spring. She gave a very detailed description of the stalking and harassing activity. She stated further that the next day she saw him at the convenience store and again he was staring at her and bothering her. On cross examination I pinned her down as to exactly the time and place where the original stalking and harassing occurred.

My client testified that he was in a staff meeting at that date and time in College Park. I had his boss and the secretary also testify that he was there. Clearly the judge found in our favor and in his written decision stated that "there was no evidence of anything" that the respondent did. I don't think that the petitioner was mentally unstable or lying but clearly made a case of mistaken identity. It cost my client money, time and potentially reputation.

There may be a mechanism to clear his reputation. If you knew my client's name you could find him on the Maryland Judiciary case search website. My client is an important man with national security clearance. Maryland's Gen. assembly ennacted a statute which took effect on October 1, 2010 providing for sealing or shielding of cases of this nature which result in either dropped charges or a dismissal. If you have a peace order or domestic violence petition against you and it is dismissed or you win in court, you should look into having the case sealed were shielded from public view. I would be happy to assist you.
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Can I Expunge My Maryland Driving Record?

It is not unusual for a client to ask me whether they can expunge their Maryland driving record. The general assembly has created a statute directly on point and it is below. Please note that this statute is from 2010 and by the time you look at this may not be up to date. It should give you a pretty good general idea whether you can have your driving record expunged. If you have any questions you can contact me for further advice.

Section 16-117.1 Expungement of certain driving records

(a) "Criminal offense" defined.- In this section, "criminal offense" does not include any violation of the Maryland Vehicle Law.

(b) When Administration may expunge records.- Except as provided in subsections (c) and (e) of this section and in Subtitle 8 of this title, if a licensee applies for the expungement of the licensee's public driving record, the Administration shall expunge the record if, at the time of application:

(1) The licensee does not have charges pending for allegedly committing a moving violation or a criminal offense involving a motor vehicle; and

(2) (i) The licensee has not been convicted of a moving violation or a criminal offense involving a motor vehicle for the preceding 3 years, and the licensee's license never has been suspended or revoked;

(ii) The licensee has not been convicted of a moving violation or a criminal offense involving a motor vehicle for the preceding 5 years, and the licensee's record shows not more than one suspension and no revocations; or

(iii) Within the preceding 10 years:

1. The licensee has not been convicted of nor been granted probation before judgment for a violation of Sec. 20-102 or Sec. 21-902 of this article;

2. The licensee's driving record shows no convictions from another jurisdiction of a moving violation identical or substantially similar to Sec. 20-102 or Sec. 21-902 of this article; and

3. The licensee has not been convicted of any other moving violation or criminal offense involving a motor vehicle, regardless of the number of suspensions or revocations.

(c) When Administration may refuse to expunge.- The Administration may refuse to expunge a driving record if it determines that the individual requesting the expungement has not driven a motor vehicle on the highways during the particular conviction-free period on which the request is based.

(d) Required expungements.- The Administration shall expunge from its driver record data base the driving record of an individual or a probation before judgment disposition of an individual:

(1) Who has not been convicted of a moving violation or criminal offense involving a motor vehicle for the preceding 3 years;

(2) Who has not been convicted of, or been granted probation before judgment for:

(i) A violation of Sec. 20-102 of this article;

(ii) A violation of Sec. 21-902 of this article; or

(iii) A moving violation identical or substantially similar to Sec. 20-102 or Sec. 21-902 of this article; and

(3) Whose license or privilege to drive never has been suspended or revoked.

(e) Early expungement prohibited.- Notwithstanding any other provision of this section, the Administration may not expunge any driving records before the expiration of the time they are required to be retained under Sec. 16-819 of this title.

[An. Code 1957, art. 661/2, Sec. 6-117; 1977, ch. 14, Sec. 2; 1982, ch. 99; 1989, ch. 291, Sec. 2; ch. 376; 1992, ch. 541; 1993, ch. 322; 1994, ch. 23; 1998, ch. 483; 1999, ch. 647; 2008, ch. 275.]

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Man Falsely Accused of Robbery Acquitted after Jury Trial

A young man charged with armed robbery, robbery and conspiracy to commit robbery was acquitted after the alleged victim's testimony was discredited. The victim in this case told police that he and his friend were beaten by at least six young men two of whom had a stick and a baseball bat. The young men were arrested based on these accusations and jailed, some of them from the incident date all the way until trial.

At trial the victim identified my client as his attacker. During the trial it was revealed that the victim had had six regular sized beers in a one half hour interval shortly before the attack. It was further revealed that the victim almost immediately got on the ground and covered his face to protect himself. It was further revealed that it was very dark out and the victim had little time to look at his attackers. At the time of the attack the victim could not give any specific description of any of the men other than they were young and their race. He could not describe hairstyle, facial features, the size of the men. Finally, the witness testified that my client had a tattoo on his neck.

Prior to trial an investigator was sent to speak with the victim and she took his statement and his statement included the fact that my client had a tattoo on his neck.

At trial it was abundantly obvious that my client did not have a tattoo on his neck and frankly never had a tattoo on his neck. The jury took only a short while to quit my client of all charges.

Car strikes bicycle rider, bicycle rider wins (not really, but it makes for an interesting title)!

Several days ago I tried a case in the district court of Maryland for Montgomery County. In this case my client was a young woman bicyclist heading home from work going N. On Connecticut Ave. in Washington DC. It was 6 PM in December and she had her blinking rear light on. She needed to make a left turn Fessenden street and as she was approaching Fessenden Street she worked her way over to traffic signal in all the way. As she was just making a left turn on Fessenden Street a van came by on her left and its right mirror struck her in the left hip knocking her off the bicycle into the intersection. A bystander did not see the accident but did see the van pass through the intersection and stop 40 feet north of the intersection. He saw the bicyclist in the left lane on the ground. Significantly, the pedestrian said that the traffic light for the North and southbound directions was green.

The insurance company denied liability despite the fact that my client and the witness were very credible.

We filed suit and when the case was called for trial by client and the witness testified consistent with above. The van driver testified that he was completely stopped at the light and that the bicyclist was also stopped to his right. When the light turned green he proceeded 1 foot forward approximately and the bicyclist somehow struck his van pushing the mirror out of shape. Incredibly, he testified further that he no longer saw the bicyclist and continued up the street, into ongoing traffic and stopped the car to investigate.

The judge credited the testimony of the plaintiff bicyclist and her witness and concluded that the van driver was mistaken about his testimony. The judge awarded the full amount requested for the injuries that the bicyclist suffered.

Defendant Who Shot Two People Received Suspended Sentence-You Need to Look at the Whole Picture before Making a Judgment

I found the following newspaper article in the Montgomery Gazette. My client was originally charged with attempted murder after he shot two people. In the end he pled guilty to two counts of reckless endangerment and received a suspended sentence. My client did not get away with anything, it is just that after the state of Maryland and below counsel were able to investigate the matter, a more complete set of facts developed and reason prevailed.

A Montgomery Village man has been sentenced to time served for shooting into a crowd of people outside his house and injuring two, including his cousin.

Richard Anthony Ortiz Jr., 19, and his then 17-year-old cousin were at their home in the 9300 block of Bremerton Way in Montgomery Village on May 19 when four or five men knocked on their door about 6 p.m., according to Montgomery County Police charging documents. His cousin went outside by himself over Ortiz's objections.

Ortiz heard a commotion and opened the door. He saw his cousin surrounded by a small crowd and struggling with a then 23-year-old man, according to the documents. Ortiz grabbed a gun, told the other people in the house to go downstairs and fired into the crowd to scare off the group.

A bullet hit Ortiz's cousin in the back and exited through his stomach. The 23-year-old man was shot in the neck, according to the documents. Neither man suffered life-threatening injuries.

The 23-year-old fled to a house near Arrowhead Road and Rothbury Drive in Montgomery Village and told the residents that someone was chasing him, according to the documents. Police were called.

Ortiz administered first aid to his cousin and walked to Rothbury to meet police.

"I have a [2-year-old] daughter and the day she was born was the day I changed a lot and became more protective of my family," Ortiz, who is now employed and living with relatives in Silver Spring, said at the Oct. 4 hearing in Montgomery County Circuit Court in Rockville. "I know [the 23-year-old] has four of his own and I'm happy that God didn't decide to put that kind of pressure on me of taking someone's life, knowing he has kids."

The .38-caliber revolver was unregistered and illegally purchased, Ortiz's Rockville attorney Thomas G. Witkop said at the hearing. Ortiz does not know who he bought the gun from, Witkop said.

Ortiz purchased the gun for protection after he and his cousin were robbed by three masked men while walking home last winter, Witkop said. The cousin's nostril was slit and a tendon in Ortiz's arm was cut, he said.

Witkop said in an interview that the cousin and the 23-year-old were in a physical fight and that Ortiz feared for his relative's life and made a poor decision.

"This guy's in his home defending himself," Witkop said. "He wasn't looking for any trouble, he was minding his own business. He wasn't an instigator."

Ortiz was indicted in June on two counts of first-degree assault, two counts of reckless endangerment and one count of using a handgun in commission of a violent crime. He pleaded guilty to two counts of reckless endangerment and was sentenced to two years in prison with all but one day suspended by Judge Joseph A. Dugan Jr.

Ortiz was given credit for one day of time served in a plea agreement accepted by Dugan.

"I don't like people out in the street with handguns that don't have a license for them and I don't like people like you, at age 19, blazing away out in front of your house," Dugan said at the hearing.

"Little girls need love and affection from their fathers and you can't give that if you're in the penitentiary."

Ortiz has been known to associate with members of a local offshoot of the Bloods gang, Assistant State's Attorney Jeffrey Wennar said, and he tested positive for marijuana three times while awaiting trial.

Dugan said Ortiz's cousin was selling drugs.

Ortiz violated his curfew on at least three occasions while awaiting trial, according to court documents, once disappearing for three days. He also failed to report to his probation officer at least once, missed a substance abuse treatment class and failed to appear at a court date.

Ortiz pleaded guilty to marijuana possession in July, according to an online state court records database.

The reporter who wrote this was Ms. Tierney and I appreciate her balanced approach to the article.


some suggestions when handling a car accident property damage claim

Having your car repaired or replaced after a collision can be the most frustrating
aspect -of a legal claim. The law provides that you are entitled to be made whole if the
other driver damaged your car. Being made whole simply means making your car as good
as it was before the accident. Unfortunately, this may not work out very well in reality. I
have had plenty of clients who had brand new $23,000 cars, driven them off the lot and
then had a bad accident necessitating $10,000 in repairs. Even after all the repair work is
done, common sense dictates that the car is usually not as good as it was before the
accident even though under the law it is considered to be as good. If you can accept early
on that this process seldom makes you a winner, it might be easier on your nerves. If you
follow the steps outlined below, it will expedite- matters and reduce your headaches.
Obviously, if you have any questions, please call me and I will help you.

After you have had an accident and your car is damaged or totaled, you are
entitled to be made whole. That is, the person who hit you, or his insurance company, if
he is at fault must pay you enough money to fix your car so that is in the same condition
as before the accident or pay you enough money to replace your car if it is totaled.

If your car is damaged but not totaled (the definition of total is not entirely clear.
Sometimes it is if the repair price is worth more than half of the price of the vehicle, then
the vehicle is a total loss. If the vehicle is an expensive vehicle the percentage may
increase. For example, if the value of the vehicle is $30,000 and the repairs will cost
$20,000, that may not be a total loss. The insurance company should tell you the formula
before they see the car.) call the adjuster for the insurance company involved. If you have
collision insurance, call your own insurance company and have an appraiser come out and
view-your car. To save you time you should suggest that all adjusters come to your car
rather than you bringing your car to them. An appraiser is experienced (but not infallible)
at evaluating damages and will tell you how much it will cost to fix your car. That
insurance company will then offer you a check in the amount of the appraiser's evaluation
less any deductible you may have. Before you accept this check, it would be wise to have
your car appraised by a mechanic or body man you know to check the appraiser's
accuracy. After your insurance company pays you, it will then collect what it paid from
the insurance company of the person who hit-you. Thereafter, you will get back any
deductible you had to pay. Also, check if you have rental insurance which allows you to
have a rental car until your car is fixed or replaced. Also, check to see if you have GAP
insurance which will cover the difference of the fair market value of your car and the
amount you owe on the car.

If you are dealing with the insurance company of the person that hit you, the
process if similar to the above description. Have the appraiser come to your car. Be
aware that the appraiser is not your friend and you should choose your words carefully
when speaking to him. do not speak to him-as how, why, what you were doing , are you
hurt, etc. about the accident. If he asks about any of the above, refer him to me. Your
conversation should be limited to the cost of fixing or replacing your car. Again, after an
appraisal is made, have a mechanic or body man you know or trust also estimate your
car's damage. As the defendant is required to make you whole, you are entitled to rent a
car equal to your car while your. car is nonoperational due to the accident. If you do not
rent a car and use a taxi, save your taxi receipts as those would be reimbursed also. All
taxi receipts, rental receipts, and repair estimates should be submitted to the defendant
insurance company so that you receive fair value for your loss.

If your car is totaled, you are entitled to the fair market value of the car at the time
of the accident and the place where the car is generally kept plus the applicable taxes and
transfer fees pursuant to Code of Maryland Regulation 11.11.05. Fair market value is
frequently determined by the `blue book value. Many public-.libraries keep blue books
and you can call the reference librarian at a public library and find out the blue book value
of your car. Library reference in Montgomery County is 240-777-0001. You can also
check online at the Kelley blue book site ( or Another way to
determine fair market value is through the classified ads in the local newspapers. Look at
the Sunday paper used car section and find the value of cars like yours.

Further, pursuant to Maryland law the insurance company must provide the
following upon request:

· The method used to value the vehicle (including the identification of any books,
manuals, or database
· A detailed explanation of our calculation of the motor vehicle's loss value, including
the calculation of
any value added to the motor vehicle by options;
· A list of all deductions that were made from the value of the motor vehicle;
· A copy of the inspection guidelines relied upon by us in determining the condition of
the vehicle at the
time of loss.

Finally, in accordance with Maryland Regulation,, at your option,
you may, in writing, reject the settlement offer and make a counter offer based on:
· dealer quotations for a substantially similar motor vehicle
· advertisements for a substantially similar motor vehicle, or
· any other source of valuation for a substantially similar motor vehicle.

Use the above information to get the best value for your car. Do not take a check
that is below the fair market value of your car. Again, until your car is replaced, the
defendant insurance company must pay for any rental expenses and or taxi expenses you
incur because you were missing your car. Bear in mind if you own a Chevy Chevette, you
cannot rent a Rolls Royce and expect to be fully reimbursed.

I hope that the above is helpful. If you have any questions please call me. I am
always happy to help you.

Hard work and perseverance nets injured cyclist good settlement

Recently a young woman who was a victim of a bicycle accident came to me. She was riding her bicycle southbound on 18th St between parked cars and traffic. It was rush hour and the traffic was moving forward slowly, stopping and starting. Ahead of her coming the opposite direction was the defendant car driver. He made a left and cut into her lane and struck her with the front of his vehicle in her left knee. At the time of the accident it was daytime and she was traveling probably 10 mph in a 25 mph zone. She was knocked to the ground and suffered a knee injury and significant bruising.

The driver of the car did not speak to her and seemed preoccupied with the damage to his sport utility vehicle. People around the scene helped the fallen bicyclist. I only had one witness who actually saw the accident and she was not cooperative with my investigation. An ambulance came and she was taken to the hospital. She suffered a non-fracture injury to her left knee and was put on crutches and released. She recovered and after approximately 1 1/2 years after the accident she is still having some knee problems.

She hired a lawyer for settlement purposes and the insurance company denied liability. The claimed that their driver was not at fault for the accident and further, that she was at fault for riding between parked cars and moving traffic.

After her first lawyer could not resolve the case, she came to me. I did not bother calling the insurance company. I did not ask them to reconsider their position. I merely filed suit in the Superior Court of the District of Columbia.

Filing suit was the easy part. The defendant driver was a lawyer who actually had a high-ranking government position. My process server tried to serve him at home. The defendant lawyer lived in an expensive house and had servants. The servants would claim that the defendant was not home and service failed. I tried to have him served as his government office and his secretary would not accept service or let my process server see him. Finally I was able to serve him by certified mail through his mail room.

Of course the insurance company again denied liability. I went to the accident scene and took measurements and photographs. It was clear to me that the defendant was negligent in his driving. They took the deposition of my client. Prior to the deposition I spoke at length with my client and had her also go to the accident scene so the facts would be clear in her mind and she could speak with confidence. I talked with there as to what questions she could anticipate from the insurance company lawyer. At her deposition she was very credible and sympathetic.

I took the deposition of the defendant lawyer and he could not understand how this accident could possibly be his fault. He stated that he was angry at the bicyclist because she could've killed herself. He believed that the fact that she was silent after the accident was an indication that she was planning to sue him. Most importantly, he testified that when he looked to the right he only looked approximately 15 feet because after that his line of vision was cut off. He began moving his car and ran over the bicyclist. I was able to preserve the argument that he should not have moved at all because he could not look far enough up the road. His testimony looked fairly poor for him.

Through the assistance of the Washington area bicycle Association I was able to find a regulation which permits "lane splitting". There is a regulation which allows bicyclists to go between parked cars and traffic as long as it is done safely.

I provided this information to the insurance company lawyer and they finally accepted liability and made a very low offer. After a period of negotiation we were able to get the offer into a reasonable area. Even the court appointed mediator believed that the plaintiff secured a good settlement.

It took many hours of work which included visiting the accident scene, chasing down witnesses and getting their statements, preparing my client for her deposition, preparing for the deposition of the defendant, researching applicable law but the result was worth it: we turned the case around from zero to significant money for my client for the injury she suffered.
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