Maryland DUI Lawyer Blog

Stamm Given Fred Bennett Zealous Advocacy Award

Fri, 03 May 2013 10:02:01 -0500

On May 1, 2013, Leonard Stamm was given the first annual Fred Bennett Zealous Advocacy Award by the Maryland Criminal Defense Attorney's Association (MCDAA). This award will be given annually to the member of MCDAA who best exemplifies the qualities that Fred Warren Bennett possessed which made him a courageous litigator and tireless advocate for criminally accused individuals.

Fred Warren Bennett was the former Federal Defender for Maryland (1980-1992), the Prince George=s County Public Defender (1978-1980), and a full-time Law Professor at Catholic University (1992-1997) before entering private practice in 1998. Among his many high profile clients were accused spies Ronald Pelton and John Walker and several men he represented after they had received death sentences. Fred was an expert on evidence, federal trial practice, and capital defense litigation. He won numerous awards, authored over 30 law related articles and lectured at many Maryland and national criminal defense seminars and was a mentor to a host of prominent Maryland criminal defense lawyers. Fred was incredibly forthright, a character, an incredibly zealous advocate, and a true legend in the Maryland criminal defense bar. Fred Bennett unexpectedly passed away on July 1, 2007.

Supreme Court rules search warrant presumptively required before obtaining non-consensual blood draw - Missouri v. McNeely win!

Wed, 17 Apr 2013 16:03:50 -0500

The Supreme Court today announced its opinion in Missouri v. McNeely and ruled that police in DUI investigations may not automatically avoid seeking a search warrant to obtain a blood sample where the defendant does not consent to a blood test. This is the third win as amicus curiae for the National College for DUI Defense which filed an amicus brief with the National Association of Criminal Defense Lawyers.

The Court said:

In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v. United States, 335 U. S. 451, 456 (1948) ("We cannot . . . excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made [the search] imperative").

It is interesting counting the votes again.

With respect to the proposition that there is no per se DUI exception to the warrant requirement in so far as non-consensual blood tests are concerned, the vote is 8-1 (only Thomas dissented from the holding). Since that was the only basis urged by Missouri for decision, the Missouri Supreme Court was affirmed. Missouri never appealed the question of whether the officer in this case acted reasonably.

As a result, Justice Kennedy wouldn't touch when and whether it might be reasonable for an officer to get blood without a warrant. He is willing to wait for the next case to do so. In so far as there was a discussion about how to determine when and whether an exigency exists there were 3 votes for kind of a special totality test where if the warrant couldn't be obtained without any delay at all, then it might not be needed (Roberts, Alito & Breyer). But Sotomayor, Kagan, Scalia and Ginsburg disagreed with this approach.

National College for DUI Defense holds Winter Session in Scottsdale, Arizona

Mon, 21 Jan 2013 21:04:20 -0500

This past Thursday and Friday the National College for DUI Defense held its annual winter session in Scottsdale, Arizona. On Thursday, the seminar featured presentations by Robert Hirshhorn on Voir Dire Gems in DWI Cases, Leonard R. Stamm on The Top 20 Guidelines for Bench Trials, Mimi Coffey on Cross Examination (SFSTs) of the Arresting Officer, Virginia Landry on Cross Examination of the Arresting Officer (nonSFSTs), Josh Lee on Blood Testing - G.C. Theory and Issue Spotting, Phil Price on Breath Testing the Twelve Step Approach, Jess Paul on Retrograde Extrapolation, and Ron Moore on Drug Toxicology Strategies & Issues. On Friday, attendees heard from Doug Murphy with a voir dire demonstration, Ava George Stewart with a demonstration of Cross-Examination of the Arresting Officer (SFSTs), Bruce Edge with a demonstration of Cross-Examination of the Arresting Officer (nonSFSTs), Tim Huey with a demonstration of Cross-Examination of the Toxicologist on Retrograde Extrapolation, Michael Hawkins with a demonstration of Cross-Examination of the Breath Test Technician, and Jim Nesci and Joe St. Louis with a demonstration of Cross-Examination of the Blood Test Technician.

Missouri v. McNeely argued today in the U.S. Supreme Court

Wed, 09 Jan 2013 13:32:27 -0500

Today, the Supreme Court heard argument in the case of Missouri v. McNeely. The case involved police obtaining a blood alcohol test without a warrant. The officer, who had previously had no difficulty obtaining warrants before getting blood samples in DUI cases had mistakenly believed that Missouri law had changed. Because there was nothing unusual about the case, the Missouri Supreme Court distinguished the 1966 Supreme Court case of Schmerber v. California, where due to the delay occasioned by an accident investigation and the defendant's trip to a hospital, and the dissipation of alcohol in the blood, the Supreme Court allowed a warrantless blood draw. In this case, the Missouri Supreme Court held that the state had failed to show the special circumstances that would have allowed police to skip getting a warrant.

The State of Missouri requested review, posing the following question:

Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream

McNeely was represented in the Supreme Court by Steven Shapiro, legal director of the ACLU. McNeely was supported by a number of amicus briefs, including one filed by the National College for DUI Defense and the National Association of Criminal Defense Lawyers and co-authored by Leonard R. Stamm, Jeffrey Green, and Jeffrey Beelaert.

Fighting for Justice - One Case at a Time

Sun, 11 Nov 2012 14:37:00 -0500

This past Wednesday I got a call from a former client, JT, who is from a state where it is legal to travel with a handgun in the car, to help his employee, AJ, who had just been arrested in West Virginia and was awaiting extradition to Maryland. Unlike the state they were from, in Maryland it is illegal to possess or transport a handgun in a car, with very few exceptions. I had represented JT on a handgun charge in Prince George's County, Maryland and obtained a good result. Prince George's County takes a hard line on people found illegally possessing a handgun and prosecutes them very aggressively. JT, and his employee, AJ, were driving to a construction job in another state when JT got tired and asked AJ to drive. He did, but when he was pulled over for speeding, police found AJ didn't have a drivers license. A search of the car yielded the handgun. The gun belonged to JT, it was JT's car, and AJ didn't even know it was there.

Initially in District Court at the time of their arrest and release, in late October, 2011, JT was charged with illegally transporting the handgun and AJ was charged with speeding and driving without a license. In early December, both JT and AJ were indicted in Circuit Court for illegally possessing and transporting the handgun. In Maryland when someone who is initially charged in District Court is indicted in Circuit Court, the District Court loses jurisdiction to the Circuit Court and any initial bond that is posted to gain release is supposed to transfer to the new Circuit Court case. In this case when the indictments were returned a Circuit Court judge issued bench warrants and set a $25,000 bond for each as if there had been no District Court bond set and satisfied. That should not have happened.

Since I represented JT, I arranged for a "walk in arraignment," where the judge recalled the warrant and let him out on his original terms of release. Ultimately JT pleaded guilty to illegally transporting a handgun and received probation before judgment. However, AJ and his lawyer appeared in District Court in February, where he pleaded guilty to speeding and the driving without a license was stetted (postponed indefinitely). Apparently no one ever realized AJ had an outstanding warrant since early December in the same case in Circuit Court, because if they had, they also would have known that the indictment deprived the District Court of jurisdiction over at least one of the charges, driving without a license. Although, as JT's lawyer, I knew AJ had also been charged, I gave it no thought, because AJ had a lawyer who I assumed was on top of it. This Wednesday when AJ was stopped for a traffic offense in Berkeley County, West Virginia he received a rude awakening. There was an unserved bench warrant for him from Maryland for the gun charges. AJ was jailed pending extradition to Maryland. JT called me to see what I could do.

Because sometimes chemists lie - the latest scandal from Massachusetts

Mon, 01 Oct 2012 10:42:52 -0500

There has been quite a bit of litigation in the past few years on the subject of what witnesses must be produced by the government to prove the results obtained for scientific testing for drugs and/or alcohol. The Supreme Court has taken a case a year on this question, starting with Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)(no chemist), Briscoe v. Virginia, 130 S. Ct. 1316, 175 L. Ed. 2d 966 (2010)(who must subpoena the witness), Bullcoming v. New Mexico, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011)(substitute chemist), and Williams v. Illinois, 132 S. Ct. 2221 (2012)(underlying opinion in DNA match). The government usually claims that it is unnecessary to bring these chemists to court because what they are doing is very routine, in the regular course of business, that the results are not really used for their truth (huh?), and that it would be too burdensome to bring these witnesses to court. But as is reported in the following disturbing article, sometimes chemists lie, and lie a lot.

The story, which is reported in the Boston Globe on September 30, 2012, is titled "How chemist in drug lab scandal circumvented safeguards." According to the article, state drug lab chemist Annie Dookhan has been charged with two counts of obstruction of justice, for falsifying drug test results and for falsifying her academic record. Dookhan is accused of skipping necessary tests (dry-labbing) altering records, contaminating samples, and signing other chemist's names, placing in jeopardy between 34,000 and 60,000 convictions.

This sad story simply illustrates what we all already know, witnesses are human, and sometimes humans lie. While confronting the lying witness in court may not always or even frequently uncover the lie, to allow a witness who supplies testimony that is critical for a conviction to avoid appearing in court is unfathomable and cannot be justified by simple cost benefit analyses.

Supreme Court Accepts Another DUI Case

Tue, 25 Sep 2012 14:58:03 -0500

Today the Supreme Court granted certiorari sought by Missouri in Missouri v. McNeely. McNeely was suspected of DUI when police had blood withdrawn without a warrant. The Supreme Court of Missouri held that a warrant was required when the facts fell outside the narrow exception created in Schmerber v. California. See State v. McNeely.

Schmerber allowed a seizure of blood without a warrant due to the exigency created by dissipation of alcohol in the blood where an accident occurred and the suspected driver was taken to the hospital. The Supreme Court said:

We thus conclude that the present record shows no violation of petitioner's right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual's person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.

Since McNeely was not in an accident and was not taken to the hospital the Supreme Court of Missouri affirmed the trial court's holding that a warrant was required.

The question to be addressed by the Supreme Court is whether to uphold the Missouri Supreme Court's conclusion:

The patrolman here, however, was not faced with the "special facts" of Schmerber. Because there was no accident to investigate and there was no need to arrange for the medical treatment of any occupants, there was no delay that would threaten the destruction of evidence before a warrant could be obtained. Additionally, there was no evidence here that the patrolman would have been unable to obtain a warrant had he attempted to do so. The sole special fact present in this case, that blood-alcohol levels dissipate after drinking ceases, is not a per se exigency pursuant to Schmerber justifying an officer to order a blood test without obtaining a warrant from a neutral judge.

The National College for DUI Defense 2012 Summer Session

Sun, 29 Jul 2012 06:28:39 -0500

The National College for DUI Defense (NCDD) just completed its 3 day summer session, held in Cambridge, Massachusetts in the facilities of Harvard Law School. The College's mission is to educate lawyers to become more proficient in defense of persons accused of drunk driving. The College's motto is "Justice Through Knowledge." The session was attended by some of the most skilled lawyers in the country, and featured presentations and workshops of the highest quality. The session exemplified what is best about the legal profession.

The session featured presentations by Robert Hirschhorn on jury selection, Leonard Stamm and Peter Gerstenzang on the Top 20 Guidelines for Bench Trials, Mimi Coffey on trial strategy and breath testing, Gary Trichter on the Bill of Rights, Erin Gerstenzang on Ethics, Tyrone Moncrief on the Art of Persuasion and Closing Argument, John Webb and Felipe Plascencia on closing argument, Dr. Sunwolf on Innovations in Jury Selection: Harvesting Skewed Venires; Juiced Jurors; Mental Blind Spots and Perfecting a Challenge for Cause, Michael Hawkins on Cross-Examination - A Performance, Justin McShane on Basic Gas Chromatography for Blood Alcohol Content, and Stephen Jones on The Real Field Sobriety Tests. Workshops were conducted on jury selection and closing arguments. The keynote address was delivered by the Honorable Joseph Johnson.

The session was conducted under the auspices of Dean George Stein who turned the reins over to Troy McKinney, the incoming dean, at the culmination of the session. The current slate of officers includes Peter Gerstenzang, Assistant Dean, Stephen Jones, Secretary, and Leonard R. Stamm, Treasurer.

Over 160 lawyers were in attendance including Regents not mentioned above James Nesci, Bill Kirk, Don Ramsell, Virginia Landry, Andrew Mishlove, Paul Burglin and Doug Murphy and Fellows James Campbell, F.K. Whited, Les Hulnick, Tommy Kirk, Phil Price, George Bianchi, Doug Cowan and Steven Oberman.

Williams v. Illinois - What now?

Tue, 19 Jun 2012 13:42:34 -0500

Yesterday the Supreme Court announced its opinion in Williams v. Illinois. The decision was anxiously awaited by those of us who have followed the Supreme Court's recent Confrontation Clause cases, namely Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico. Melendez-Diaz had held that the chemist in a drug case must be brought to court by the government for cross-examination, and Bullcoming held that another chemist in a lab who had nothing to do with a test cannot take the place of the actual analyst who reported a blood alcohol reading in a DUI case.

In Williams v. Illinois, Williams was convicted of rape based on a DNA match. DNA was collected from semen found during the victim's rape exam and the profile identified at Cellmark Laboratories in Germantown, Maryland. A different lab analyzed William's DNA and identified a genetic profile. Illinois did not call anyone from Cellmark to testify, but rather called an expert who testified that the two samples were a DNA match.

The Supreme Court decided in an unusual plurality - 4-1-4 - that the expert could give the opinion of a match, even though no one from Cellmark testified to the underlying profile that was the basis for the opinion. What is unusual about the opinions issued in the case is that the five justices who voted to affirm the Illinois Supreme Court (and the rape conviction) did not agree why and that a majority of five agreed the plurality's reasoning was wrong.

Drug Recognition Expert (DRE) Program Suffers Another Blow

Sat, 12 May 2012 06:01:45 -0500

The Star Tribune newspaper in Minneapolis has published allegations that as part of a program training police officers to become Drug Recognition Experts, officers gave Occupy Wall Street protesters marijuana. "Trooper put on leave as probe of drug-training tactics widens." This has resulted in the suspension of the DRE program and investigation of a number of police officers. "Minnesota police giving Peavey Plaza Occupy-ers drugs as part of impairment study, report says [VIDEO]."

Drug Recognition Expert (DRE) Protocol is Junk Science Says Carroll County Circuit Court

Wed, 04 Apr 2012 15:41:56 -0500

On March 5, 2012, the Circuit Court for Carroll County, Maryland released its opinion in the case of State v. Brightful, et al., granting the defendants' pre-trial motions to exclude the opinion of a drug recognition expert (DRE) in each of the consolidated cases. The case was litigated by defense attorneys Brian DeLeonardo and Alex Cruikshank. The court heard 10 days of expert testimony from both sides between September, 2010 and February, 2011. The State presented six expert witnesses: Dr. Karl Citek, Ms. Michelle Spirk, Mr. William Tower III, Officer William Morrison, Lt. Thomas Woodward and Dr. Zenon Zuk. The defendants called three experts: Dr. Francis Gengo, Dr. Neal Adams, and Dr. Jeffrey Janofsky. The court concluded that the DRE program is not generally accepted within the relevant scientific communities and that therefore would be excluded under the cases of Frye v. United States and the Maryland case of Reed v. State, as well as under Maryland Rule 702.

Specifically, the court said:

Findings of Fact

The DRE Protocol fails to produce an accurate and reliable determination of whether a suspect is impaired by drugs and. by what specific drug he is impaired. The DRE training police officers receive does not enable DREs to accurately observe the signs and symptoms of drug impairment, therefore, police officers are not able to reach accurate and reliable conclusions regarding what drug may be causing impairment.

WBAL Interview, Thursday, February 2, 2011

Sun, 05 Feb 2012 16:37:32 -0500

Click below to listen to Lenny Stamm's interview with DJ Kirk McEwen on WBAL on Thursday, February 2, 2011 at 9 p.m.

01 WBAL-AM Post Delay.mp3

02 WBAL-AM Post Delay.mp3

If you are facing criminal or traffic charges in Maryland state or federal court, call Leonard R. Stamm or Johanna Leshner of Goldstein & Stamm, P.A. at 301-345-0122 for a free consultation.

Leonard R. Stamm
Goldstein & Stamm, P.A.
6301 Ivy Lane, Suite 504
Greenbelt, Maryland 20770
www.lstamm.com
301-345-0122
(fax) 301-441-4652

Author: West's Maryland DUI Law

How can you defend those people?

Tue, 10 Jan 2012 12:27:26 -0500

I recently read a disturbing opinion piece in the New York Times - My Guantánamo Nightmare. The author, Lakhdar Boumediene, wrote the following:

On Wednesday, America's detention camp at Guantánamo Bay will have been open for 10 years. For seven of them, I was held there without explanation or charge. During that time my daughters grew up without me. They were toddlers when I was imprisoned, and were never allowed to visit or speak to me by phone. Most of their letters were returned as "undeliverable," and the few that I received were so thoroughly and thoughtlessly censored that their messages of love and support were lost.

Some American politicians say that people at Guantánamo are terrorists, but I have never been a terrorist. Had I been brought before a court when I was seized, my children's lives would not have been torn apart, and my family would not have been thrown into poverty. It was only after the United States Supreme Court ordered the government to defend its actions before a federal judge that I was finally able to clear my name and be with them again.

We are brought up to believe that such things cannot happen in our country. They can. And they are happening right now. Our criminal justice system is designed to place a premium on due process - notice of charges, the presumption of innocence, requiring the government to prove its case beyond a reasonable doubt, the right to a jury of one's peers. A delicate balance exists that prevents persons accused of committing crimes from being held incommunicado without charges filed, supported by probable cause.

Howard County illegal quota results in DUI acquittal

Sun, 08 Jan 2012 11:45:15 -0500

A recent news story disclosed that Howard County police officers were required to write a predetermined number of tickets each shift. Judge throws out DUI case, saying police had quotas - Howard County police chief calls ruling a bad decision. According to the story the Howard County Police Chief was quoted saying that a federal grant to aide enforcement of traffic laws required officers average 2-4 citations per hour on the street.

McMahon said the grant "mandated that an average of 2-4 citations must be written per hour on each of these details by each officer or future funding may be withheld."

As a result the District Court for Howard County granted a defense motion to dismiss the charges.

In future cases, defense lawyers must find out if their clients' stops were made by officers operating under a quota, as reported by a follow up story. Drunk-driving quota case may lead to similar efforts elsewhere - Prosecutors look at possible appeal as defense lawyers suspect issue may affect other cases.

Leonard Stamm, a Prince George's County lawyer who wrote a legal handbook called "Maryland DUI Law," said the case puts lawyers who defend people charged with drunken driving on notice for a potential avenue for defense.
Though as a District Court ruling it has no bearing on other cases, defendants coming before other judges can bring it up. "Now that it's out there, it's something you have to look for," Stamm said.

Did the December 16, 2011 Dunkirk, Calvert County DUI Roadblock violate the Fourth Amendment?

Thu, 22 Dec 2011 14:25:58 -0500

A recent internet news story described a DUI roadblock or sobriety checkpoint in Dunkirk, Calvert County, where 1054 cars were stopped and one person was arrested for drunk driving. Four Arrests Made at Dunkirk Sobriety Checkpoint (other arrests were made but not for drunk driving). This would appear to have violated the Fourth Amendment under the rule announced in Michigan Dept. of State Police v. Sitz.

In Sitz, the US Supreme Court applied a three-part balancing derived from earlier cases addressing random identification checks, random license checks, roving patrols, and checkpoints near the border. The three factors considered were: the state's interest in enforcing the drunk driving laws; the extent to which the state's interest was advanced by the checkpoint; and the level of intrusion to individuals stopped by police.

In Sitz, the Supreme Court found that Michigan had a high interest in enforcing the drunk driving laws. The roadblock was found to be sufficiently selective in advancing that interest. The roadblock netted two arrests for 126 vehicles stopped. Expressed
as a percentage, about 1.6% of the drivers passing through the checkpoint were arrested. The Court noted that in the border checkpoint case, a ratio of 0.5% illegal aliens detected to the number of vehicles stopped had been held to pass constitutional
muster. As to the level of intrusion, the Court noted that the checkpoints were administered according to guidelines that reduced the discretion of officers in the field. The average delay of individual vehicles was 25 seconds. Thus the roadblock did not
violate the Fourth Amendment.

In the Dunkirk checkpoint, to the contrary, only one person was arrested of 1054 drivers, or an arrest to vehicle rate of under .1%. This is lower than the previously approved ratio, and would seem to establish that the Dunkirk checkpoint was ineffective, and therefore, in violation of the Fourth Amendment when the low effectiveness is balanced against the State's interest and the level of intrusion.