Recently in Crimial Procedure Category

The controversial program that allows U.S. Immigration officials to check the citizenship of people who have been arrested is being expanded to include Baltimore City and Montgomery County. The Secure Communities program lets immigration officials review fingerprints collected when people are booked.

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DUI and DWI Involving Death or Life Threatening Injury

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All of the forms of DUI and DWI in Maryland can become homicides where a death results from the defendant's negligent driving. Negligent driving is defined as operating "a motor vehicle in a careless or imprudent manner that endangers any property or the life or person of any individual." Unlike vehicular manslaughter, gross negligence is not a requirement. All of the vehicular homicide offenses are statutory felonies in Maryland. If an individual is convicted of driving under the influence the maximum penalty is five years incarceration and/or a $5000 fine. If an individual is convicted of driving while impaired the maximum penalty is three years and/or a $5000 fine. If convicted an individual can face the imposition of 12 points and the possibility of a revocation of the driver's license or privilege to drive.

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Federal Jurisdiction in Maryland DUI and DWI Cases

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There are many areas in Maryland that are considered federal enclaves. In these areas Maryland's implied consent laws are at issue. What laws apply in federal enclaves depends upon whether the land is under one of the following:

1. Exclusive federal jurisdiction or concurrent federal and state jurisdiction

2. The jurisdiction of the National Park Service

National Park Service properties, including Baltimore-Washington Parkway and Suitland Parkway, are patrolled by the United States Park Police. There are specific federal regulations governing conduct on these roads. For instance, refusal of a breath test is made a crime by 36 C.F.R. § 4.23(C)(2). There are no administrative sanctions for refusals or what would be administrative per se violations under National Park Service regulations. Therefore there will be no MVA hearing or automatic suspension. Unfortunately, there is no possibility of a probation before judgment in this type of Maryland DUI case. Some portions of these federal enclaves are under concurrent jurisdiction, and suspected drunk drivers who are arrested by county or state police officers are subject to Marylands implied consent laws.

Where the land is federal, but not under the jurisdiction of the National Park Service, including Andrews Air Force Base and Fort Meade, the substance and penalties of Maryland DUI law are incorporated into federal law by the Assimilative Crimes Act, 18 U.S.C.A. § 3118. Because of this incorporation, persons arrested for drunk driving in these areas do have the possibility of a federal judge granting them a probation before judgement disposition. If you have been arrested for DUI or DWI on federal land contact the experienced Maryland DUI attorneys and Maryland DWI lawyers at Portner & Shure.

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.

What Crimes Trigger Deportability of a Foreign National?

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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.

What is the Difference Between DUI and DWI in Maryland?

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The acronym DWI stands for driving while impaired and is a lesser charge when compared with DUI, which stands for driving while under the influence. DUI in Maryland is considered the "A" charge and DWI in Maryland is considered the "B" charge. A suspect is charged with DWI in cases of impairment by drugs, other dangerous substances, or alcohol at a level of .07 blood alcohol content (BAC). A suspect is charged with DUI in drunk driving cases if it is determined that the suspect's BAC was .08 or higher. Usually, individuals accused of drunk driving offenses are given citations for both DWI and DUI. If there is no breath result or the breath result is between .07 and .08, the State will typically proceed with a DWI. If the result of the breath test is .08 or higher, the State may proceed on the DUI charge. Our Maryland DUI attorneys often negotiate plea offers that lower the charge to DWI even when the defendant's BAC is over .08. At the very least, our Maryland DUI lawyers will not allow the State's Attorney to proceed on a DUI charge if the State does not possess sufficient evidence.

MVA Hearings in Maryland DUI Cases

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MVA.jpgIf a person accused of drinking and driving in Maryland refused the breath or blood alcohol test or the test resulted in an alcohol level of .08 or more, his or her license is subject to automatic suspension. To prevent automatic suspension of a license, a person charged with DUI in Maryland must request a hearing with the Maryland Motor Vehicle Administration (MVA) within 10 days of arrest. Maryland police will confiscate a Maryland license from a driver upon arrest for a drunk driving charge and issue a temporary license to drive. The temporary license is valid for 45 days, starting from the day of arrest. On the 46th day, the license automatically expires. Attached to the temporary license is a form which looks like a copy of the temporary license. The copy is a form to request an administrative hearing. It must be completed and mailed or deliver the hearing request form to the Office of Administrative Hearings, 11101 Gilroy Road, Hunt Valley, MD 21031-1301. A request for an MVA hearing requires a $125 filing fee which must be submitted with the request.

Everyone is entitled to an MVA hearing. The MVA hearing is an administrative legal proceeding allowing the accused to present his or her side of the story before any decisions are made regarding driving privileges. When evaluating a DUI arrest in Maryland, the Administrative Law Judge will look at the following issues:

Howard County DUI Attorney

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If you are arrested for a DUI in Howard County, you need access to an attorney who knows the local courts and has considerable past DUI experience. You need to be assured that when you hire your Howard County DUI law firm, you are in competent, experienced and qualified hands. In your search for the right Howard County DUI attorney, your research will have been a success if you call attorney, Jon Portner, Kevin Ruby or Nick Parr at Portner & Shure to discuss.

The DUI Team at Portner & Shure understands that the best DUI case results don't necessarily come in the courtroom. In order to succeed a proper invesitgation must be conducted in the early stage of the process, then discovery. Our DUI legal team has a desire to win and does not back down to the Howard County State's Attorneys office, unlike some other DUI firms. We prepare extensively for DUI cases and treat these cases with the utmost importance. A desire to win and exceptional preparation have enabled us to obtain an excellent track record in the Howard County District Court and the Howard County Circuit Court.

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