Articles Posted in Probable Cause

Now that all police officers involved in the death of Freddie Gray have been charged by the Baltimore State’s Attorney, I will lay out what to expect in the next 30 days.

Charged by Criminal Information:

There are two ways to charge a felony in Maryland, one way is by Criminal Information and the other way is by Indictment. The Gray defendants have been charged by Criminal Information. Criminal Information means that the State’s Attorney believes their is probable cause the officers have committed one or more felonies. Under Maryland law, there must now be a judicial “rubber stamp” or independent finding of probable cause.

As of now, these defendants will automatically have a preliminary hearing scheduled within 30 days. At the preliminary hearing, a judge will listen to the evidence and make a determination if there is some link between the defendants and the felonies alleged. This is known as probable cause hearing. Most preliminary hearings involve a police officer simply taking the stand and reading the police report into the record . Defense counsel can ask limited questions as the questions relate to probable cause. In cases such as this, it is rare for a district court judge not to find probable cause that a felony has been committed. Upon the judicial finding of probable cause, the case is then forwarded to Circuit Court for trial.
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As an Experienced and Aggressive Criminal and DUI Attorney I have successfully defended hundreds of people who were charged with DUI and DWI in Maryland Courts. As most people are aware these laws are being more strictly enforced by the police and more aggressively prosecuted by the State every year. Nowadays, repeat offenders, including second offenders routinely go to jail if convicted.

I successfully represented a second offender in Harford County last week. The State was seeking a 30 day jail sentence for this single mother of two. Needless to say this would have been a devastating result for her. Here are the facts:
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Often times in Maryland DUI prosecutions, there is an issue of whether the defendant was actually behind the wheel or driving. This often comes up when the defendant pulls over to “sleep it off”.

The term “drive” as used in the Maryland drunk driver statutes means to drive, operate, move or be in actual physical control over a vehicle. This includes control over the steering of a vehicle that is being towed.

The seminal Maryland case on this issue is Atkinson v. State, 331 Md 199 (1993). In Atkinson, Maryland court of Appeals has determined that in situations where the driver is simply using his car for shelter until sober enough to drive, the driver can not be prosecuted for DUI. As long as the occupant is totally passive and has not made any attempts to actively control the vehicle. he is immune from a DUI prosecution in Maryland.

What constitutes “actual physical control” includes 1) whether the vehicle is legally parked or on a public roadway, 2) whether the vehicle’s headlights are on, 3) whether the ignition is on and the engine is running, 4) whether the driver is awake, 5) where in the vehicle is the occupant (driver’s seat or back seat makes a significance difference), and 6) the physical location of the ignition key.
Continue reading › a Maryland DUI/DWI Attorney I have become very accustomed to analyzing a client’s performance on the standardized field sobriety tests (at least the police officer’s version of that performance) to determine its legal significance. There are two reasons why police officers request that people suspected of DUI or DWI request the suspect to the perform the standardized field sobriety tests which are the Horizontal Gaze Nystagmus Test (HGN), the Walk and Turn and the One Leg Stand. There are certainly other tests that police officers asks suspect to perform in these situations such as alphabet, counting and finger dexterity tests but the three listed above are the standardized tests recommended by the NTSB.

The primary reason that police officers ask suspects to perform these tests is to allow the officer to develop probable cause to arrest the suspect or at least take him or her into custody and charge them accordingly. The reason for this is that the smell of alcohol alone is not generally considered to be enough to establish probable cause. The police officer will typically run the suspect through the tests and based on his assessment of the person’s performance, either take the person into custody or release him.
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To be a successful Maryland DUI/DWI Attorney, it is necessary to have a thorough knowledge of what constitutes a legal or illegal stop of a motor vehicle by the police. Very often, the only plausible way to defend a DUI/DWI in Maryland is to attack the basis for the stop. The reason for this is that over the last decade or so the State Legislature has passed laws that make most DUI/DWI cases, in the words of former CIA Director George Tenant, “a slam dunk” for the prosecutor, once the prosecutor establishes that the police lawfully stopped the defendant.

This is especially true if the defendant took the breathalyzer and registered a reading of .08 or greater. This is because in Maryland, a person who is proven to have been operating a motor vehicle while having a blood alcohol content of .08 or greater is “per se” guilty of driving under the influence of alcohol. Even if the defendant didn’t take the breathalyzer, however, most police officers write thorough enough reports detailing their observations of the defendant’s performance on the field sobriety tests and conduct throughout the booking process, for the State to secure a conviction at least as to driving while impaired if not to driving while under the influence. We successfully defended a case in Howard County last month that presented this exact situation. Here are the facts:
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Maryland DUI Attorney. I had a somewhat interesting DUI/DWI case with a client who was repeat offender yesterday in the District Court for Baltimore County. My client, who is from West Virginia, was charged with DUI and DWI. The facts of the case were that he was travelling Westbound on Pulaski Highway in Baltimore County, Maryland at approximately 12:15AM on the morning of September 12, 2008. He and a friend were visiting other friends in Maryland and were staying at a motel on Pulaski Highway. They had gone out to dinner and then to a “Gentleman’s Club” and were returning back to the motel.

The motel was located on the East side of Pulaski Highway which is a divided four lane road with two lanes in each direction and a cement barrier separating the lanes. My client and his friend were not intimately familiar with the area and it was dark. They inadvertently passed by the motel and had to proceed approximately a half mile further West on Pulaski to reach the first break in the median. Here, there was a dedicated left turn lane and no signs prohibiting either a left turn or a u-turn.
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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.

The Court of Appeals reversed the denial. The Court stated that “the petitioner’s momentary crossing of the edge line of the roadway and the later touching of that line did not amount to an unsafe lane change or unsafe entry onto the roadway, conduct prohibited by §21-309, and thus, cannot support a traffic stop in this case.” Id. at 441. The Court also stated that a lawful traffic stop may also rest upon reasonable, articulable suspicion, and stated: “A traffic stop may also be constitutionally permissible where the office has a reasonable belief that “criminal activity is afoot.” Whether probable cause or reasonable suspicion exists to justify a stop depends on the totality of the circumstances.” The Court did not determine that there was other reasonable suspicion.
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