Gary S. Bernstein, PA » Baltimore County Criminal

2nd State Trooper whose videos do not match his reports

gbernstein — Thu, 17 Nov 2011 22:59:04 +0000

Yesterday I was in court where the tape and printed word did not match. But for the fact my client did poorly on 1 of the SFSTS, it would have been a trial. The tape supported a plea to the lesser offense as there was a medical issue surrounding the breath test. A second lawyer had a tape from the same trooper. His client looked like an Olympic gymnast on the tape so his case was dismissed. How can these guys be stupid and arrogant to do this. A different trooper expressed his outrage to me about this behavior. He said troopers like this ruin peoples lives, when they have done nothing wrong. My guess is they are using previously prepared reports and revising the observations. My client spoke so clearly, it was a joke, yet he was deemed to have “slurred speech.” The video and the report will be kept for the next time, as I might as well start a new collection. Innocent people and honest police are the victims of this kind of bogus behavior.

Motion to Suppress

gbernstein — Wed, 17 Aug 2011 23:08:42 +0000

Had an interesting Motion to Suppress yesterday that was granted. The issue involved the seizure of pills from the console of my client’s vehicle. We dealt with those drugs before we dealt with the arrest for possession of marihuana. That too was suppressed, but the pills were more interesting. Assuming the client was arrested lawfully and the search was valid, was the seizure permissible? The police officer could not identify the pills as being a controlled dangerous substance, so he did not have reasonable grounds to seize them. There is an exact MD case on point from our Court of Appeals that dealt with the exact issue. Just because you have a right to search does not mean you have a right to seize. I understand the police were not to happy, but the officers wrote a truthful police report and testified honestly.

You are too late if you are reading this

gbernstein — Mon, 14 Mar 2011 23:11:35 +0000

If you are reading this you have been charged with an offense and looking for an attorney. Here is a variable neither you nor I have control over. These cases were not triable. A good search in the first caseand the second client was caught at the scene with the stolen property. What prompted this post was the conversation at a coffee house this morning with the prosecutor in the first case.

This morning I had a sad conversation with a prosecutor whom I like and respect. The client is going to jail for a few months (selling a small amount of weed), and will be on either work release or college release. During the summer, the client will work. When school begins, the client will have 10 days left to serve because, although the client will have earned release credits, they are not awarded until the end of the month. I wanted to modify the agreement (the sentence has not been imposed yet) to reduce the time by the 10 days. The prosecutor said, the client can be released for school so why do it. I said i did not want the school to note it on his school record since they have to agree to allow him to attend (they do it all the time). It would also be easier to start school at the beginning of the semester from home. The prosecutor’s response was too bad, let it be on his school record. I commented the client would like to keep it out of there, and the prosecutor said that the prosecutor was tired of being accused of ruining people’s lives. I told the prosecutor that I did not think that, nor was I implying it, and that the client did not think that when the request was made to me. The client is not receiving a PBJ so this will not be expunged, so maybe there is no additional harm. The problem was the cold stark reality that once you have screwed up your life, you may find little sympathy.

The contrast to this was recently I had another college student who was involved in a Theft. Inexcusable and inexplicable. Caught red-handed. The prosecutor in that case was also dumbfounded by what the client did. The agreement was for a PBJ (can be expunged in 3 years, unless Good Cause for an earlier expungement). Without me asking or even thinking about it while we were waiting for the Judge, the prosecutor walked over to me and said, if the client stays clean for the next year, the prosecutor would agree to an early expungement so he can get a job because he is graduating college this year. A kind and gracious act that was not even on anybody’s radar screen, and would not have been on mine until the probation period was over.

District Court Violation of Probation DUI or Criminal- Dismissed

gbernstein — Wed, 09 Sep 2009 22:12:12 +0000

The statute concerning VOPs in the District Court (not the Circuit Court) has been a source of contention between attorneys and judges. The statute read that a request for a violation of probation had to be initiated while the defendant was still on probation. Well what happens if the defendant violates the probation on the last day of probation and promptly reports it to the probation officer? Some judges ruled that they were without authority to violate the probation. Others said screw it (not a direct quote) and violated them anyway. In order to cure this problem, effective October 1, 2009, the statute has been amended to allow for VOP charges to be filed up to 30 days after the probation has expired. You don’t fix it if it ain’t broke. I will present this argument along with the new statute, the actual bill with why it was being submitted, the Legislative Summary as to why it was needed to a judge next week. Hopefully, I do not have to litigate this on appeal, and the judge acknowledges that the law means exactly what it presently says. And no, the court cannot postpone the case to after October 1 and claim the violation is now timely (if within the firstl 30 days). This issue generally arose because probation officers would wait until after a probationer was convicted of the new offense to file the violation. In all DWI (old crime), DUI, and Driving Impaired cases a standard condition of probation was and is not to consume alcohol during the period of probation. That alone is grounds for a violation. Had the trial judge been notified of the alcohol related arrest, a violation could have been issued for the consumption and the probation violated. I suspect that is exactly what the judge next week is going to order the Probation Department to do in any DUI case where alcohol is detected, with or without a breath test. I am sure I will live to regret that in the future, but next week’s client has priority.

Probation Dismissed. Judge agreed with the change in the law.

Supreme Court Ruling in Melendez-Diaz http://supct.law.cornell.edu/supct/html/07-591.ZS.html

gbernstein — Mon, 29 Jun 2009 21:46:51 +0000

Much has been made about Judge Scalia’s majority opinion requiring the testing technician to appear in court. We have a “demand statute” in Maryland, where defense counsel is required to request the technician’s appearance if the State has provided the test results sufficiently in advance and advised they will not call the technician. This procedure is still acceptable under the Supreme Court’s opinion. It does not offend the Confrontation Clause to require an accused to exercise the right before trial. The “demand statute” governs the timing, and does not act as an abridgment of the constitutional right. A footnote states that the maintenance technician does not fall within the persons constitutionally required. Because Maryland has a procedure for summonsing the State Toxicologist, his appearance may be required even absent a request. This is an issue that has been batted around in different courts where we have sought to bring him in to testify about how the instrument is approved and then re-certified. The nuances of these procedures may require his appearance without a subpoena, and this may be a new way to challenge the accuracy of breath testing in a DUI in Maryland.

SEARCH AND SEIZURE UPDATE ARIZONA V. GANT ( http://supct.law.cornell.edu/supct/html/07-542.ZS.html )

gbernstein — Mon, 01 Jun 2009 14:52:48 +0000

I was asked in 2004 by a judge to participate in his trial advocacy course at a local law school. I suggested that he use the Thornton v. United States ( http://supct.law.cornell.edu/supct/html/03-5165.ZS.html ) case as his teaching example because Justice Scalia’s concurring opinion was going to become the new standard when the issue was next presented to the Supreme Court. In April, the Supreme Court did exactly that in the Gant case. Quite simply, if you are arrested to driving while suspended, cuffed, and placed in the rear of a police car, there is no reason to search you car. You no longer present a threat to the police and there is no evidence of that crime to be discovered in the car. The logic of this is quite simple, but the jails are full of people who had drugs or other contraband recovered in their cars as a result of these “Search Incident” searches. Although the logic is simple, the end result is not. Will police now “routinely” do an Inventory Search because they have decided to have the vehicle towed rather than leave it parked on the shoulder of a highway or parked on the street. There will now need to be an exhaustive cross-examination of the officer about his practices prior to Gant. A subpoena for previous police reports in these types of traffic offenses may be the most effective method of revealing what was the officer’s pre Gant practice regarding towing. Baltimore County police officer routinely tow vehicles in DUI cases. The Maryland State Police will leave the vehicle on the shoulder of the interstate if it is not impeding traffic. The Maryland State Police have jurisdiction throughout Anne Arundel County, Baltimore County, Carroll County, Cecil County, Harford County and Howard County. They do not operate in Baltimore City. The Maryland Transportation Police also operate not only on the toll roads, but parts of the interstate.