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Judiciary continues moving forward with launch of E-Filing.

imagesBeginning in October 2017, Allegany, Garrett, Frederick, and Washington counties will become the latest jurisdictions to offer Maryland Electronic Courts (MDEC). With the implementation of MDEC on Monday, October 16, 2017, attorneys filing in District and Circuit courts in these jurisdictions, as well as appellate filings originating in these jurisdictions, will be required to file electronically. This applies to all attorneys in Maryland who practice law in Western Maryland.

The launch in Western Maryland follows the successful implementation of electronic filing in Southern Maryland, on the Eastern Shore, and in Anne Arundel County. MDEC is currently operational in Anne Arundel, Calvert, Caroline, Cecil, Charles, Dorchester, Kent, Queen Anne’s, Somerset, St. Mary’s, Talbot, Wicomico, and Worcester counties. The Judiciary is on pace to achieve the goal to bring MDEC to every court by 2021.

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SORRY OFFICER I DIDN’T MEAN IT, the stress-testing of language in legal regulation and dispute resolution…

Joel C. Denning Law

During the eighteenth century there was a maturation of colonial legal systems with much unevenness from colony to colony, the bench and bar became better trained and better regulated. English-educated lawyers probably exerted appreciable influence in the middle and southern colonies. It seems that adequate common-law books were present in at least some of the colonies, though doubtless in scattered libraries, Certainly it can be said that in the fairly typical colonies the common law was knowable and for the most part followed by the time of the Revolution.
The post-Revolutionary evidence makes it conclusive that by 1765 the courts applied the common law “in the main.” It was said that “The ends of the bridge are secure even if the floor has some missing planks.”
William & Mary Law Review
Volume 10
Issue 2 Article 7 (1968)

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We Americans are beneficiaries of the English Common law. Much Common law…

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SORRY OFFICER I DIDN’T MEAN IT, the stress-testing of language in legal regulation and dispute resolution…

During the eighteenth century there was a maturation of colonial legal systems with much unevenness from colony to colony, the bench and bar became better trained and better regulated. English-educated lawyers probably exerted appreciable influence in the middle and southern colonies. It seems that adequate common-law books were present in at least some of the colonies, though doubtless in scattered libraries, Certainly it can be said that in the fairly typical colonies the common law was knowable and for the most part followed by the time of the Revolution.
The post-Revolutionary evidence makes it conclusive that by 1765 the courts applied the common law “in the main.” It was said that “The ends of the bridge are secure even if the floor has some missing planks.”
William & Mary Law Review
Volume 10
Issue 2 Article 7 (1968)

icokesi001p1

We Americans are beneficiaries of the English Common law. Much Common law jurisprudence has been superseded by Statutory law which oftentimes clarifies uncertain outcomes based upon arcane case law applied to unique facts.
By way of example, a common, albeit mistaken, belief is that in Maryland criminal law, all theft-type crimes are the same. Although words like burglary and larceny and embezzlement and theft are used interchangeably in our day-to-day life, in fact, they have different meanings, and apply in  different situations. But consider embezzlement, which is perhaps the most different from the group. Most theft-type crimes require that the accused take possession of property by force, or without permission. In common terms, the items must be “stolen.” In many cases, someone can legally have possession of an item, but retain the item wrongfully, or use the item in a way that exceeds or violates the scope of why the person was entrusted with it in the first place. The person does not have to intend to steal anything at the time he  takes possession of the item.
For example, your boss may give you $1000 to go to Staples and buy office supplies for the office. You initially plan to do just that, then you realize you could use some cash for yourself. So, you buy $900 worth of office supplies, and keep $100 for yourself. You have embezzled those funds. Surely, you did not steal that money initially; it was given to you with permission by the boss. But clearly, you embezzled some of it. However, State law no longer uses the terms larceny, embezzlement, shoplifting, or receiving stolen property, as these crimes all fall under the theft statute.

A CURRENT LOOK AT THE LAW OF MENS REA AND ACTUS REUS IN THE UK

“SORRY OFFICER, I DIDN’T MEAN IT”- The Queen’s Bench disagrees when motorist fails to remove his car from the foot of the arresting constable in a prompt rather than a subjectively propitious time.

For a crime to have occurred, there must have been an actus reus (“GUILTY ACT”) and a mens rea (GUILTY MIND”). The two must coincide with each other from a temporal aspect.

In Fagan v Metropolitan Police Commissioner [1969] 1 QB 439,
Mr Fagan, the defendant, was asked to move his car by a police officer. He reversed his car as told, but accidentally drove onto the officer’s foot. When the officer told him to get off his foot, Mr Fagan told him to wait, and refused to move. He was convicted of assaulting a constable in execution of his duties, but complained that the two necessary elements of the offense – the act (actus reus) and mental state (mens rea, or guilty mind) – had not happened at the same time. When he drove onto the officer’s foot he did not intend to harm him, and at the point where he did intend to continue doing him harm he only omitted (failed) to move his car off the officer’s foot. In criminal law the two elements have to happen at the same time, so he argued that he should not be convicted.

This cunning submission however did not work. The court said that driving onto the officer’s foot and staying there was one long battery (unlawful touching of another), so that when he began intending to continue hurting the officer he was still performing the actus reus. Mr Fagan was therefore convicted of assault. Normally an omission is not an actus reus, apart from in certain circumstances such as gross negligence manslaughter, so it is interesting how the court managed to decide this was one long act rather than an act followed by an omission to correct the situation.

If you have been charged with a crime in Maryland pick up the phone and give me a call at 410-391-0552 (land) or 410-491-0227 (cell) to arrange a confidential and courteous consultation.

Sources: Oxford Royale Academy

William B. Stoebuck, Reception of English Common Law in the American Colonies, 10 Wm. & Mary L. Rev. 393 (1968), http://scholarship.law.wm.edu/wmlr/vol10/iss2/7

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Pleading guilty to certain offenses may lead to deportation.

When pleading guilty the accused faces collateral consequences including deportation. In this case a guilty plea to possession with intent to distribute “Ecstacy” triggered deportation. The Defendant was born in South Korea but has lived in the U.S. since Childhood. The Court ruled he received ineffective assistance of counsel and the case is remanded for a new trial. Justice Roberts opined
“Mr. Lee…“would have rejected any plea leading to deportation — even if it shaved off prison time — in favor of throwing a ‘Hail Mary’ at trial.”

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The Supreme Court ruled on Friday in favor of Jae Lee, who sought to go to trial after his lawyer had falsely told him that pleading guilty to a drug charge would not lead to deportation.
nytimes.com|By Adam Liptak

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Designated Driver severely injured by off duty police officer in Queens New York. Officer refuses blood/alcohol test.

 

An intoxicated off-duty detective  was involved in a car accident on April 23, 2017 in Queens, New York, that left one person critically injured police spokesman reported.

The victim was driving a Honda with two passengers when the car was rear-ended by a Mercedes driven by Officer Neville Smith, 32, authorities said.
The crash occurred at 4 a.m. Sunday on the Van Wyck Expressway in South Ozone Park.
One passenger was treated and released. Officer Smith suffered minor injuries.
Smith, 32, who works in the 48th Precinct in the Bronx,  is under investigation for driving while impaired/intoxicated. He refused  to take a blood alcohol breath. The severely injured victim  was reported to have been the designated driver on the evening/early morning hours of the fatal collision. Reports indicate that she was rear ended by the off duty driver in his Mercedes motor vehicle.law3
source: New York Post

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What to expect following DWI/DUI charges. What is the difference between Court proceedings and MVA (Administrative) proceedings.

In the State of Maryland a person charged with DUI/DWI faces two separate legal proceedings : a criminal trial typically in District Court or if a Jury trial is requested the case will be tried in the Circuit Court. The other proceeding is an administrative hearing regarding your driver’s license. The Motor vehicle administration (MVA) hearing is heard before an Administrative Law Judge. The ALJ does not have legal authority to send a licensee to Jail. By stark contrast, a Criminal Judge does have jurisdictional authority to sentence the Defendant to jail. The criminal trial takes place at District or Circuit Court, where a judge or jury will decide whether you are guilty of DUI/DWI. The state has the burden of proof which means the State must prove each and every element of the crime. If not proven, then Judgement of Acquital is granted for the Defendant.
The defendant has a right to trial by jury because the alleged crime carries a potential penalty of 90 days incarceration or more. NOTE, this does not necessarily mean you will receive a 90 day sentence. My mission as your defense attorney is to represent you zealously and protect your constitutional rights. Each case is unique and avoiding jail, points, fines, and whenever appropriate, conviction, is the mission of the criminal defense attorney.

The MVA administrative hearing does not address your liberty and fines, rather it addresses your license. The Administrative Law Judge (ALJ) may revoke, suspend, modify or issue a warning (public reprimand). After you are cited for driving under the influence, you will be given a temporary Maryland driver’s license and your license will be confiscated. This temporary license is set to expire in 45 days, and you have 10 days to request an administrative hearing where you can fight to keep your license. If you fail to timely request an MVA hearing and pay the filing fee your license will be suspended. It is wise to contact an Attorney immediately to protect your rights.

In the case of MVA v. Styslinger, (No. 53, September Term 2016), the Maryland Court of Appeals held that:
“Under the State’s implied consent, administrative per se law, if an individual detained under suspicion of drunk driving refuses to submit to a breath test for blood alcohol concentration, the individual’s driver’s license
is suspended. The individual may challenge the validity of the suspension at an administrative hearing. At such a hearing, the Motor Vehicle Administration (“MVA”) must show that the officer who requested the licensee to submit to the test had reasonable grounds to believe that the licensee was driving (or attempting to drive) while impaired, that there was evidence of alcohol use, that the officer provided the
licensee with the appropriate advice of rights in requesting a test, and that the licensee refused to take the
test. The MVA need not prove that the licensee actually was driving (or attempting to
drive) while impaired, so long as the officer had a reasonable belief that the licensee was
doing so. Maryland Code, Transportation Article, §16-205.1.

In the criminal prosecution, however, the Court has recognized the “stationary shelter” defense.  A person may use the car to “sleep it off,” even with the motor on and not be driving, and therefore not be guilty in the criminal case.  The seminal case that sets forth factors considered by the finder of fact in the “stationary shelter defense” is Atkinson v. State, 331 Md. 199, 1993. In Atkinson the Court of Appeals held that the evidence was not legally sufficient to support a conviction for driving while intoxicated. The defendant there “was sitting intoxicated and asleep in the driver’s seat of his vehicle.” 331 Md. at 202. A key factor in that case, however, was that the vehicle was:

“lawfully parked on the shoulder of the road.” Id. The defendant could well have been “sleeping it off” and there was no evidence to support even an inference that he had actually driven the car while intoxicated. In terms of the circumstances that may give rise to an inference that the car has recently been driven, a key factor is that of where the car is resting when it is first observed by the police.
“The location of the vehicle can be a determinative factor in the inquiry
because a person whose vehicle is parked illegally or stopped in the roadway
is obligated by law to move the vehicle, and because of this obligation could
more readily be deemed in ‘actual physical control’ than a person lawfully
parked on the shoulder or on his or her own property. In sum, the primary
focus of the inquiry is whether the person is merely using the vehicle as
stationary shelter or whether it is reasonable to assume that the person will,
while under the influence, jeopardize the public by exercising some measure
of control over the vehicle.”331 Md. at 217. (Emphasis supplied)

At the separate MVA hearing, which, as previously emphasized, is separate from the criminal case, the MVA is not held to the “beyond a reasonable doubt” standard, but is rather held to satisfying the lesser standard of “reasonable grounds to believe” the person was driving. If this can be shown the licensee can lose his or her license or privilege to drive in Maryland for 270 days for a first refusal or two years for a second or subsequent refusal or be required to participate in the ignition interlock program.
The best advice is to not drive while impaired. That said, let us not be naive, as a matter of public policy, the person who makes the decision NOT to drive after imbibing,  consistent with the holding in ATKINSON, should be treated accordingly in a just society.  Lives are at stake. Even if the facts are not on all fours with Atkinson, when properly presented they may serve as additional mitigation in negotiations. Discuss these issues with your Lawyer.

If you have been charged with an alcohol related traffic offense call me at 410-491-0227 to discuss your case and arrange a free and courteous consultation.

 

 

 

 

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Karla Porter, convicted of murdering husband at gas station in Towson granted new trial.

A White Marsh woman, convicted seven years ago of hiring a hit man for $400 to kill her husband and conspiring with others, will receive a new trial the Maryland Court of Appeals recently ruled in a 4-3 decision split along gender lines. (Karla Louise Porter v. State of Maryland, No. 88, September Term,2016, Opinion by Adkins, J.)

Karla Porter, now 55, was sentenced to life without parole in the death of her husband, William “Ray” Porter, who was shot at his Towson BP gas station on March 1, 2010. Porter argued at trial that she suffered more than two decades of physical and emotional abuse from her husband, which led her to believe he would kill her if she did not kill him first. This evidence laid the foundation for the “Battered Spouse” defense. As opposed to the Self Defense theory, which if successful can result in an outright acquittal, the “Battered Spouse” defense is referred to as an “imperfect” defense which in contrast results in a Manslaughter conviction which carries a maximum penalty of ten years.

The jury, composed of nine women and three men, convicted Porter of first-degree murder. Karla Porter was sentenced to life without parole in her husband’s death.

The Court of Appeals opined that a woman who acts in imperfect self-defense is certainly not allowed to be acquitted outright of killing her abusive husband. The doctrine of imperfect self-defense permits her to make a factual case to the jury that she committed the lesser crime of  manslaughter.

The Court held that Porter presented sufficient evidence that she feared imminent harm to be entitled to an imperfect self-defense jury instruction. The dissent rejected the logic of a finding of her fear of “imminent” bodily harm given the fact that Porter planned the murder and hired third parties to carry out her lethal plan.

Most importantly, the Court held that the substantive error in the delivered instruction was NOT HARMLESS and thus infected the verdict. Accordingly, the case was remanded for a new trial on all counts.

If the judge or jury in the new trial finds for Porter on the imperfect self-defense/ “Battered Spouse” theory she now faces conviction on the lesser charge of manslaughter on all counts.

 

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The Court of Special Appeals has ruled that there is no reasonable expectation of privacy in your sweat i.e. the normal biological residue human beings leave behind after sitting in a chair for half an hour.

Don't let them catch you sweating.

Don’t let them catch you sweating.

The Court of Special Appeals ruled that DNA extracted from a chair where a suspect was sitting was admissible evidence holding that the Fourth Amendment did not apply because the DNA was used for identification purposes only and the Defendant had “no objectively reasonable expectation of privacy in the identifying characteristics that could be gleaned from the normal biological residue he left behind.” Raynor v. State, 69, September Term 2012, filed August 27, 2014

An unknown assailant broke into a victim’s home and raped her repeatedly. Because she had been blindfolded, the victim could not identify the attacker. She called the police and investigators collected DNA evidence from her home. Over a two year period, the victim contacted investigators with the names of about twenty potential suspects. Consensual DNA samples were taken from each of them, but there were no matches to DNA found at the crime scene. Eventually, the victim contacted police to express suspicions about Raynor. Raynor agreed to speak with officers.

Police interviewed Raynor for about thirty minutes, during which time he sat in an armchair and often rubbed his arms against the armrests. He refused a consensual DNA swab of his mouth. After Raynor left the station, an officer took swabs of the armrests where Raynor had been sitting. DNA analysis showed that DNA from the armrests matched that found at the crime scene. This result was used by officers to obtain warrants for Raynor’s arrest, a second DNA sample, and a search of Raynor’s house. The second DNA sample also matched the DNA found at the crime scene as well as that taken from the rape examination. Raynor was charged.

Before trial, Raynor sought to suppress the DNA evidence obtained from the armrests. He argued that police violated his Fourth Amendment rights by taking the DNA material to connect him to the crime. The court denied his suppression motion, deciding that the Fourth Amendment did not apply because Raynor had no expectation of privacy in what he left on a chair. The Court of Special Appeals affirmed, holding that the Fourth Amendment did not apply because the DNA was used for identification purposes only and Raynor had “no objectively reasonable expectation of privacy in the identifying characteristics that could be gleaned from the normal biological residue he left behind.”
Source: Baltimore County Advocate

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If you are arrested can Law Enforcement seize your smart phone to use as evidence against you?

Do we have a reasonable expectation of privacy in the contents of our smart phone, protected by the 4th Amendment? I believe we do. It has long been held that law enforcement can conduct a search without a warrant pursuant to arrest. Contraband, evidence of criminal conduct can be Constitutionally obtained pursuant to a lawful arrest. A smartphone is not inherently contraband (e.g. schedule 1 drugs) the authorities have time to present probable cause to obtain and present articulated facts to an independent judicial officer to obtain a search warrant.
The Supreme Court is poised to weigh in on the issue. At question is the Fourth Amendment to the U.S. Constitution and its protection from unreasonable search and seizure, and just how that applies to cellphones in the possession of someone when they’re placed under arrest. Courts have rules that police can search a suspect’s property after arrest to make sure they don’t have any weapons or illegal drugs, and those searches can include looking in personal items like cigarette packs, glasses cases, and even address books. Here in Maryland law enforcement is seizing and reviewing the contents of Defendant’s smart phones.

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Maryland’s highest Court rules that bars can’t be held liable for accidents their patrons cause after they leave.

The “Dram Shop Rule” derives from common law precedent and Statute  in 38 states which makes a business which sells alcoholic drinks or a host who serves liquor to a drinker who is obviously intoxicated or close to it, strictly liable to anyone injured by the drunken patron or guest.

To the contrary, in Maryland the Court of Appeals ruled Thursday in the case of a 2008 drunken driving crash in Montgomery County that killed a 10-year-old girl.

The girl’s grandparents, the Rev. William Warr Jr. and his wife Angela, had sued a Gaithersburg bar that served Michael Eaton 17 beers and several more drinks of hard liquor on the night of the crash.

After leaving the bar, Eaton got into his car and struck the Warrs’ vehicle from behind while speeding on Interstate 270. He pleaded guilty to manslaughter and was sentenced to prison.

The judges in the 4-3 opinion suggested the General Assembly was the appropriate place to change the law, as opposed to the court.

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