Recently in Constitutional Law Category

An individual can be barred from extending their status, changing their status, applying for permanent residency or entering the United States if they are outside the United States for any of the following:

• Conviction for, or admits to having committed, or admits to acts comprising essential elements of a crime of moral turpitude.
• Conviction for, or admits to having committed, or admits to acts comprising a violation of law relating to a controlled dangerous substance.

There are exceptions to the grounds for inadmissability. These exceptions include crimes involving moral turpitude where the maximum possible sentence is less than one year and the sentence imposed is less than six months. A single offense for simple possession of 30 grams or less of marijuana is also not grounds for inadmissability. Of particular concern are the crimes of "moral turpitude". Moral turpitude refers generally to conduct that shocks the public conscience. Offenses such as murder, voluntary manslaughter, kidnaping, robbery, and aggravated assaults involve moral turpitude. However, assaults not involving dangerous weapons or evil intent have been held not to involve moral turpitude. An experienced Maryland criminal defense attorney and Maryland DUI lawyer can negotiate a plea with the State that eliminates charges involving "moral turpitude" in exchange for guilty pleas for crimes which carry less or no potential for inadmissability. In addition, a skilled Maryland criminal defense attorney and Maryland DUI lawyer can often argue successfully for a probation before judgment or stet disposition that allows a defendant to avoid a criminal conviction and the resulting immigration consequences.

An individual who is in the United States pursuant to a valid lawful status is subject to deportation if a criminal arrest results in the following:

• A conviction for a single crime involving moral turpitude that was committed within five years of admission and is punishable by imprisonment of at least one year.
• Convictions for two or more crimes involving moral turpitude not arising from a single scheme of misconduct.
• Conviction for an aggravated felony at any time after admission into the United States.
• A conviction for failing to register as a sex offender.
• A conviction for a violation of a federal, state, or foreign law or regulation relating to a controlled substance.
• A conviction relating to a firearm or other destructive device.
• A conviction for an offense related to espionage, sabotage or treason.
• A conviction under the Military Selective Service Act or Trading with the Enemy Act.
• A conviction for high speed flight from an immigration checkpoint.
• A conviction for an offense related to launching an expedition against a country with which the United States is at peace.
• A conviction for a crime of domestic violence, stalking, child abuse, child neglect or child abandonment.
• A conviction relating to human trafficking.

All Spanish speaking defendants should be aware that before you plead guilty to a criminal charge, you must be advised that your guilty plea could lead to deportation. Maryland's Court of Appeals just ruled that a guilty plea for assault charges must be thrown out because neither the Court, nor defense counsel, advised defendant, Mark Denisyuk of the possible deportation consequences of his guilty plea.

The Court of Appeals held that defendants have the right to weigh the risk of significant jail time verse the certainty of deportation. If you are a Spanish speaking defendant and are illegal, you should ask about the deportation consequences of a plea. Do not be surprised if both the Court and an inexperienced criminal lawyer forget to go over this with you. In fact, in this particular case, immigration agents took the defendant into federal custody after his plea and began deportation proceedings.

Recently, I represented a client who was facing multiple burglary charges in Prince George's County Circuit Court. He was arrested after the victim picked his photo out of a photo array. The materials provided to me by the State through discovery cast doubt on the reliability of the victim's pretrial identification of the suspect and the procedure used by the Prince George's County police.

The Constitutional right to due process forbids any pretrial identification procedure that is unnecessarily suggestive and conducive to irreparable mistaken identification. All lineups and showups must be conducted in a fair and impartial manner. Suggestivity is evaluated by courts under the totality of the circumstances surrounding the pretrial identification. Factors to be considered in evaluating the reliability of an identification are:

• The witness's opportunity to view the criminal at the time of the crime
• The witness's degree of attention
• The accuracy of the witness's prior description of the criminal
• The level of certainty demonstrated by the witness at the confrontation
• The length of time between the crime and the confrontation
• The corrupting effect of the suggestive identification

We handle civil litigation and criminal defense throughout Maryland, Virginia and Washington, D.C. One of our frequent endeavors is DUI and DWI defense. If a person is charged with a drinking and driving offense, trial will most likely be held at the District Court level. Portner & Shure's Maryland DUI lawyers are no strangers to Maryland courthouses. We consistently help our clients reach favorable outcomes because we require that the State put forth a case that meets the requirements of Maryland law and, if the State's case is without defect, we prepare our clients by walking them through the steps necessary to mitigate guilt.

Common Defects in the State's Case

1. The accused must be in "actual physical control" of a vehicle. If he or she is not then the State has not established one of the necessary elements. Factors used to determine whether someone is in "actual physical control" of a vehicle include the following:

• Whether or not the engine is running or ignition is on
• Where and in what position the person is found in the vehicle
• Whether the person is asleep or awake
• Where the vehicle's ignition key is located
• Whether the vehicle's headlights are on
• Whether the vehicle is on the roadway or legally parked

No one factor alone will necessarily be dispositive of whether the defendant was in "actual physical control" of the vehicle. Rather, each must be considered with an eye towards whether there is in fact present or imminent exercise of control over the vehicle or, instead, whether the vehicle is merely being used as a stationary shelter. Courts must in each case examine what the evidence showed the defendant was doing or had done, and whether these actions posed an imminent threat to the public. Perhaps the strongest factor is whether there is evidence that the defendant started or attempted to start the vehicle's engine.

German Marquez, is a Salvadorian who was charged with failing to submit to a breath test in New Jersey. He successfully appealed his conviction in the state Supreme Court because he was read the statement warning him of the penalties he faced if he did not submit to a breath test only in English. The ruling of the state Supreme Court essentially levels the playing field for non-English speaking residents to that of English speakers. Until now, in Maryland and Virginia, drivers are deemed as having given implied consent to a breath test as a condition of being on the road. The American Civil Liberty Union feels that the prior lack of a translation policy meant non-English speakers were being held to a "higher standard" of being expected to memorize what is in the driver's manual. The ACLU has compared the need for translation of consent to a breath test to the need of translating Miranda rights and court proceedings, which the state's courts do provide.

Whenever someone is arrested, as a general rule, that person should speak with an attorney. When you are placed under arrest your 6^th Amendment right to a lawyer is triggered and someone who is detained by police should exercise it. I want to address how important this rule is when someone is arrested for drinking and driving. When the police confront someone who is drinking and driving they are required to perform several different tests, including field sobriety tests and a breathalyser or B.A.C. (Blood Alcohol Content) test, which are in themselves invasive and trigger certain constitutional rights. Interestingly, if you ask to speak to a lawyer before you decide whether or not to take a breathalyzer and your request is denied, it is not your 6th Amendment right to counsel that is violated. Instead, if the officer does not give you the opportunity to consult with your attorney, your 14^th Amendment right to due process is violated. The reason due process is violated results from the affect that a refusal or the result of a breathalyzer will have on your ability to drive. Because the ability to drive affects an individual's employment, livelihood, etc., people confronted with the decision to take a breathalyzer must be given the opportunity to consult with an attorney if requested. Further, if the police officer denies a request to speak with a lawyer or improperly advises and, as a result, there is a refusal, there is a presumption that the result of the breath test would be in the accused favor.

A common misconception is that law enforcement officials are entitled to stop and question citizens without any basis or reason for doing so. In reality, a set of firm legal guidelines are in place that govern whether or not an officer is permitted to stop and frisk nearby pedestrians.

For a police officer to stop someone, the officer must have a reasonable belief that a crime is either being committed or about to be committed. While this standard falls well below the probable cause an officer must have to arrest or search a suspect, an officer must be able to identify and articulate specific facts that explain their reasonable belief that the person stopped has been engaged in criminal activity. Circumstances considered in justifying an officer's reasonable belief are whether an individual is near where a crime was recently reported, whether the individual matches a suspect description, whether or not the individual attempts to flee, and whether the individual exhibits nervous or agitated behavior upon being stopped. It is important to note that while an officer may stop an individual based upon a reasonable belief, the individual being stopped is not required to respond to the officer and may only be arrested if their responses or actions create probable cause for arrest.

Possibly the most highly publicized process in criminal procedure is the reading of Miranda rights to an individual accused of a criminal act.  Surely, if you have seen one of the many cop-dramas that currently are being aired on television, you have witnessed some form of a reenactment of the reading of Miranda rights. 

Miranda rights held by the accused are the right to remain silent, the right to an attorney and to have an attorney present during questioning, as well as an advisement that any statements made going forward can be used against the accused in a court of law.  For the accused to waive their Miranda rights, the law requires the waiver to made in a voluntary, knowing and in an intelligent manner.  Determining whether a valid waiver has been made will depend on all the circumstances surrounding the waiver. 

No warrant is required, according to the federal law governing the area. That federal law was written in 1986 when cell phones looked like a shoe box with an antenna and were only used by Gordon Gekko. Now everyone has a cell phone and people should be concerned because they are carrying a tracking device in their pocket. Based on current cell phone and texting patterns, cell site data for a typical adult user will reveal 20 to 55 location points a day, enough to plot his or her movements hour by hour.