Posted on September 19, 2008 in Federal Criminal Defense

In establishing a process by which a sentencing judge may depart outside the guideline range, the Federal Sentencing Commission recognized that “it is difficult to prescribe a single set of guidelines that encompasses the vast range of human conduct potentially relevant to a sentencing decision.” U.S.S.G. ch. 1, pt. A, intro. comment 4(b).

Cognizant of the fact that unusual or atypical cases would arise, the Sentencing Commission explicitly reserved a certain degree of flexibility to the sentencing court: “The Commission intends the sentencing courts to treat each guideline as carving out a ‘heartland,’ a set of typical cases embodying the conduct that each guideline describes.” Id. However, a departure may be warranted where “a particular guideline linguistically applies but where conduct significantly differs from the norm.” Id. Unless specifically forbidden, the Commission, in creating the Sentencing Guidelines, did “not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case.” Id. See also Koon v. United States, 518 U.S. 81, 98 (19__)(recognizing departure decisions as “embod[ying] the traditional exercise of discretion by a sentencing court”).

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 Posted on September 19, 2008 in Federal Criminal Defense

In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that in certain defined circumstances a defendant can attack a facially sufficient affidavit. The Franks Court recognized a “presumption of validity with respect to the affidavit supporting the search warrant,” 438 U.S. at 171, 98 S.Ct. at 2684, and thus created a rule of “limited scope,” id. at 167, 98 S.Ct. at 2682. The rule created by the Franks decision requires that a dual showing be made before a court will hold an evidentiary hearing on the affidavit’s integrity. This showing incorporates both a subjective and an objective threshold component. In order to obtain an evidentiary hearing on the affidavit’s integrity, a defendant must first make “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit.” Id. at 155-56, 98 S.Ct. at 2676-77. This showing “must be more than conclusory” and must be accompanied by a detailed offer of proof. Id. at 171, 98 S.Ct. at 2684.

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 Posted on September 19, 2008 in Defenses

Next to contributory negligence, no defense is raised more in a Maryland personal injury case than assumption of risk. It is well-established in Maryland that in order to establish the assumption of risk defense, the defendant bears the burden of proving that the plaintiff: (i) had knowledge of the risk of the danger; (ii) appreciated that risk; and (iii) voluntarily confronted the risk of danger. The majority of the cases turn on the issue of voluntariness.

In order for a plaintiff to have voluntarily exposed himself to the risk of a known danger, “there must be some manifestation of consent to relieve the defendant of the obligation of reasonable conduct.” ADM Partnership v. Martin, 348 Md. 84, 92, 702 A.2d 730, 734 (1997).

As the Maryland Court of Appeals has explained:
[I]n order for a plaintiff to assume voluntarily a risk of danger, there must exist “the willingness of the plaintiff to take an informed chance,” . . . ; there can be no restriction on the plaintiff’s freedom of choice either by the existing circumstances or by coercion emanating from the defendant. This is so because even where the plaintiff does not protest, the risk is not assumed where the conduct of the defendant has left him no reasonable alternative. Where the defendant puts him to a choice of evils, there is a species of duress, which destroys the idea of freedom of election.

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 Posted on September 19, 2008 in Federal Criminal Defense

Government wire interceptions must be conducted in a manner to minimize interceptions of communications not subject to interception. 18 U.S.C. Section 2518(5). Minimization embodies the constitutional requirement of avoiding, to the greatest extent possible, seizure of conversations which have no relation to the crimes being investigated or the purpose for which electronic surveillance has been authorized. United States v. Clearkley, supra, 556 F.2d at 715 & n.3 (and cases and authorities cited therein). Law enforcement personnel must exhibit a high regard for the right to privacy and do all they reasonably can to minimize interceptions of non-pertinent conversations. Id. at 716; United States v. Tortorello, 480 F.2d 764, 784 (2nd Cir.), cert. denied, 414 U.S. 866 (1973).

The minimization concept is tested on a case by case basis under a standard of reasonableness. United States v. Clearklev, supra, Id.; United States v. Webster, 473 F.Supp 586, 597, (D.Md. 1979), aff’d in part, 639 F.2d 174 (4th Cir. 1981), cert. denied, sub-named 454 U.S. 857 (1982). The Order directs that electronic surveillance “shall be conducted in such a way as to minimize,, non-pertinent calls.

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 Posted on September 19, 2008 in Probable Cause

In many Maryland drinking and driving cases, the decision in Rowe v. State, 363 Md. 483, 769 A.2d 879 (2001) establishes parameters for whether police officers have probable cause to legally stop the driver.

In Rowe, a Maryland State Trooper observed a van being driven in the slow lane of I-95, at about 1:00AM. The trooper followed the vehicle for a little over a mile, and in that span observed it cross over onto the right shoulder about 8 inches, touch the rumble strip, return to the slow lane, and cross over a second time. The trooper then initiated a traffic stop “for the benefit of the driver…because it was late in the evening.” Id. at 428. The officer determined that the driver was not intoxicated, but discovered that he was driving a rental vehicle with an expired rental contract. The officer then searched the vehicle and discovered marijuana, and was issued a warning for failure to drive in a single lane under Trans Art. § 21-309(b) . Suppression of this evidence based on an unlawful stop was denied in the trial court.

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 Posted on September 19, 2008 in Maryland Criminal Procedure

The purpose of the insanity defense in Maryland is to ensure that the criminal sanction is imposed only on those who had the cognitive and volitional capacity to comply with the law. Robey v. State, 54 Md.App. 60, 73, 456 A.2d 953, 960 (Md.App. 1983).

The test to determine whether a defendant is not criminally responsible for certain conduct is twofold. The Code of Maryland dictates that, “a defendant is not criminally responsible for criminal conduct of, at the time of that conduct, the defendant, because of a mental disorder or mental retardation, lacks substantial capacity to: (1) appreciate the criminality of the conduct; or (2) conform that conduct to the requirements of the law.” Md. Code Ann., Crim. Proc. §3-109(a). “The burden is on the defendant to establish to the defense of not criminally responsible by a preponderance of the evidence.” Md. Code Ann., Crim. Proc. §3-110(b). Once the defendant has provided sufficient evidence of mental disorder to rebut the presumption of sanity, the burden then shifts to the State to prove sanity beyond a reasonable. Robey, 54 Md. at 75.

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 Posted on September 19, 2008 in Police Brutality

The Baltimore City Board of Estimates approved two settlements in two cases against City Police Officers stemming from police brutality. In one case, the City approved at $320,000.00 Settlement for four victims and in the second, approved a $75,000.00 settlement on behalf on one victim.

In May, a Baltimore City Jury awarded 4 men $1.85 million dollars based on misconduct on the part of a Baltimore City Police Officer. Those men claimed that they were harrassed while playing basketball in Patterson Park. They claim the officer used excessive force and arrested them in a show of force. Their claim was settled for $325,000.00. In a second case, a baltimore city resident was the victim of police brutality when he was struck in the face after cursing at an officer. He suffered a fracture to the bone around his eye as a result of the violent actions of the police officers. Experienced Maryland Accident Attorneys https://www.silvermanthompson.com/lawyer-attorney-1300832.html can help recover damages for the vicitms of police brutality. If you or someone you know has been injured by a police officer please contact the best in Maryland Personal Injury https://www.silvermanthompson.com/lawyer-attorney-1300832.html.

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 Posted on September 19, 2008 in Blood Tests

Maryland DUI/DWI Attorney I was recently retained to represent a person who is charged with Driving Under the Influence of Alcohol, Driving While Impaired, Negligent Driving and Failure to Control Speed to Avoid a Collision. The client was involved in a serious single car accident while driving home from a night out at the bars. He lost control of his car, went off the road and slammed into a telephone pole. He was seriously injured with several broken bones and was transported to shock trauma.

In cases involving motor vehicle accidents in which the suspected drunk driver is injured badly enough to require hospitalization, there is obviously not an opportunity for the investigating officer to request that the suspected drunk driver perform standardized field sobriety tests. In these cases the officer will typically speak to the driver and develop suspicion that the driver is impaired by alcohol based upon his observations. The officer will look for the smell of alcohol, blood shot eyes, slurred speech and other clues that the person is under the influence. If that suspicion is developed the officer will respond to the hospital and request that the driver submit to a test of his blood. The person my refuse to consent unless the accident caused death or life threatening injury, in which case he may be compelled to submit to a blood test.

If the person does consent the driver’s blood will be drawn by a nurse. The blood is packaged in a blood kit and taken to the State Laboratory to be analyzed by a chemist using procedures developed by the State Toxicologist on equipment that is monitored and tested regularly to insure accurate results. If the test reveals the presence of alcohol it can be admitted into evidence in trial and will carry with it legal presumptions depending upon the blood alcohol level. The evidence can also be introduce without the presence of the chemist who performed the test or anyone else in the chain of custody unless the defendant notifies the State in writing that the presence of the Chemist and all others in the chain of custody is demanded. If the blood alcohol level (BAC) is .08 or greater, this alone constitutes per se evidence that the person was under the influence of alcohol. If the BAC is .07 the State is entitled to a legal presumption that the defendant was impaired. If the BAC is less than .07 but greater than .05, there is no presumption and if the BAC is .05 or lower, the driver is presumed to not be impaired or under the influence of alcohol.

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 Posted on September 16, 2008 in Automobile Accident

Each year, more than forty percent of the total number of traffic fatalities are alcohol related. In this country, nearly 17,000 thousand people are killed on an annual basis in accidents caused by drunk drivers.

Sadly, notwithstanding these horrific statistics, Maryland law does not permit a cause of action against a bar owner, restaurant, homeowner or other individual or entity responsible for negligently serving alcohol to individuals who later get behind the wheel of a car and cause serious, and oftentimes catastrophic, injury to others. See Veytsman v. New York Palace, Inc., 170 Md.App. 104, 122 n.11 (2006). Such a claim is known as tavern liability or “dram shop” liability. In fact, Maryland is one of only three states that do not permit such lawsuits. Maryland law also does not allow an injured victim to recover punitive damages in automobile accident cases, even in instances where the driver that caused the injury has consumed excessive quantities of alcohol or other mind-altering drugs. See Komornik v. Sparks, 331 Md. 720 (1993).

A plaintiff’s personal injury lawyer practicing in Maryland should be mindful of the fact that each of the jurisdictions that border Maryland (including the District of Columbia) has adopted dram shop liability. It may be particularly important to consider this fact in instances where the at-fault driver has inadequate insurance coverage. When reviewing a case, an attorney should consider whether a drink driver became intoxicated at an establishment located beyond Maryland’s borders and perform the appropriate choice of law analysis. For example, in such instances, it may be appropriate to file a dram shop claim against the restaurant or bar that over-served alcohol to its patron in that entity’s home state, instead of filing a claim in Maryland. If a lawsuit that potentially presents a dram shop liability claim is hastily filed in Maryland, and the crash occurred in Maryland, Maryland law will most likely apply. If, on the other hand, a tavern owner in the District of Columbia negligently serves alcohol to a patron who later causes an accident in Maryland, it may be possible to hold the tavern owner responsible for the injuries by filing suit in the Superior Court for the District of Columbia. Filing suit in the District of Columbia may be particularly advantageous for an additional reason: there is no cap on non-economic (i.e., pain and suffering) damages like there is in Maryland.

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 Posted on September 16, 2008 in Field Sobriety Tests

Maryland DUI/DWI Attorney. I blogged several months ago about a Maryland DUI Case that I handled in the District Court for Anne Arundel County in which my client claimed to have performed the field sobriety tests far better than was indicated by the officer in the Statement of Charges. In that case I subpoenaed the video tape from the Maryland State Police Department and it turned out that my client was correct. The officer had exaggerated or outright fabricated poor performance on the field sobriety tests. I introduced the video into evidence at his trial and he was found not guilty.

Today I had a similar case in the District Court for Baltimore City. My client had the misfortune of passing a late model Chevy Malibu at approximately 1:00 AM on Interstate 95 N. just South of the Harbor Tunnel. About the time he pulled even with the Malibu (doing approximately 85MPH) he realized that it was an undercover Maryland Transportation Authority Police car. He was then pulled over and ultimately arrested for DUI, speeding and negligent driving.

Like my client last month, he swore that although he had had a few beers, he was not intoxicated and had not performed poorly on the standardized field sobriety tests. Again I ordered the tape of the stop, which was actually one of the clearest videos that I have seen but had no audio. When I compared the officer’s observations of my client’s performance on the filed sobriety tests with the video tape I was astounded at the discrepancies between the two. The officer said that he stumbled as he exited the car and had to hold onto the car for balance. The video showed him to walk to the back of the car without the slightest bobble. The officer said that while speaking to him he swayed noticeably. Again, the video showed him standing very steadily for several minutes while the officer questioned him. On the walk and turn test the officer said that he missed heal to toe, stepped off the line and did an improper turn. The video confirmed that on one step he stepped slightly to the left of the imaginary line and that he did an improper turn but he did not miss heal to toe on any of the steps. There were several other disrepancies as well.

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