Blog Archive

Immigration law is generally defined by federal law, but many times a relevant state law must be considered under the rules denied by federal law to determine immigration consequences. This can lead to confusion and frustration, when state laws do not match federal law rules. One such example, is the definition of conviction. Certain criminal convictions can carry immigration consequences, but, in Maryland, there are criminal dispositions other than just a simple “guilty” or “not guilty” . For example, such outcomes “probation before judgment”, a “nol pros”, or a “stet”, are common, but whether they count as convictions for immigration purposes may not be as clear.

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Criminal law covers a whole host of laws, but its defining characteristic is that it represents crimes committed against the public. This means the nature of a criminal act undermines the interests of the public as a whole.

Civil law, on the other hand, covers crimes committed against individuals. Breaking a contract would be an example of a civil crime, as it doesn’t affect all of society.

Still, this is a rather basic understanding of what criminal law entails. To get a better understanding of what types of things fall under the general umbrella of “criminal law”, we’ll begin with the three broad categories of crime:

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With the onset of the holiday season comes the onset of holiday parties. These are just one more reason to enjoy this time of year.

It’s always fun seeing loved ones, exchanging gifts and partaking in old traditions.

However, you know what they say about too much of a good thing which can be a problem when it comes to drinking and driving home from holiday parties. While this is no crime by itself, getting behind the wheel absolutely is.

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Even if it’s never happened to you, you know it goes.  A Maryland state police officer pulls you over under suspicion of driving under the influence, and you are then asked to give consent to allow the officer to have you blow into a breathalyzer.  The results of said breathalyzer test then are used to determine whether your blood alcohol level exceeds the legal limit and subsequently arrested.  What you may not know, is that state police are required to read a form to you, called the DR-15, which lets you know what the penalties will be if you refuse to take the test or if you fail the test.

To blow or not to blow?

If you have been drinking and are subsequently pulled over, you naturally would rather not have to take the breathalyzer.  Even if you think your blood alcohol level will be below the legal limit of .08 (for example, you may have only had a couple beers with dinner a couple hours ago), chances are you don’t know for sure.  And this is one test you do not want to go into without knowing you are definitely going to ace it.

If you refuse to have the test administered on the spot (such as at the side of road) the officer may take you to the police station to have it administered there.  If you refuse then as well, you could have your license will immediately be confiscated and suspended.  Then, you will have to request a hearing before the MVA within 10 days to request to get your driving privileges back.  Depending on the circumstances of your case, if it is your first offense, your license may be suspended for 120 days, or 12 months for each subsequent infraction.  You have limited options to fight such a suspension, and the assistance of an attorney may be necessary to ensure you can keep your license.

In addition, even if you refuse to take a breathalyzer test during a traffic stop, the officer may request that you perform a field sobriety test (walk in a straight line, state the alphabet backwards, etc) that could still lead to your arrest (and potentially a conviction) for driving while impaired even without a breathalyzer report.  Then, the judge may also consider your refusal to take the breathalyzer test, which could lead to a greater penalty.

If you do take the test and fail however, the MVA will offer a lesser penalty in exchange for your cooperation.  Instead of the 120 day suspension, you will only face a 45-day license suspension, and instead of 12 months for each subsequent infraction, you will only face 90 days.  However, if you agree to take the breathalyzer, and you blow well over the legal limit (higher than .15) you will face 90 days with a suspended license and 180 days for any subsequent violation, which is still less than the penalty for refusing to take the breathalyzer.

Additional Potential consequences

The consequences discussed above are unfortunately only those in relation to your license suspension from the MVA.  In addition to such suspensions, you may also be required to have an ignition interlock for a year if you are found guilty, which essentially is having a breathalyzer installed in your own car.  If you fail, the car will not start.  You can also face jail time or fines as a penalty for the criminal case.

When you’re at a crossroads and trying to determine whether you should take the breathalyzer test, you have to take everything into consideration.  Most people agree to take the exam, but it may not be the best option for you.  Depending on how much you have had to drink, whether it is your first offense, how important having a driver’s license is, and whether you have a commercial driver’s license are all factors to take into consider when deciding whether to consent to a breathalyzer.  If you’re in a situation where you need legal counsel for a traffic violation like a DUI, contact Rodriguez-Nanney, P.A., a law firm in Annapolis, Maryland today.

Every year, without fail, law enforcement officials are asked to tighten up Maryland’s laws surrounding DUI and DWI.  Whether the pressure to get tough on drinking and driving is prompted by the legislature or by advocacy groups such as Mothers Against Drunk Driving (MADD), DUIs are a constant source of controversy as well as heated debate among both advocates and lawmakers alike.

Impact of Recent Changes

One common method of preventing drunk driving, especially for repeat offenders, is the breath alcohol ignition interlock device, a the breathalyzer that is installed in a car to prevent the driver from being able to start the car unless the test is passed.  In 2011, Maryland increased its use of ignition interlock devises by way of the Drunk Driving Reduction Act.  However as with most things related to the law, there are many who are debating how exactly law enforcement should be permitted implement these changes.

As of October 2011, any driver who is convicted of a DUI as a result of a blood alcohol content (BAC) of .15 or higher is required to have an ignition interlock device installed in their vehicle.  Drivers who are under the legal age and violate their alcohol restrictions or who have had multiple convictions within 5 years are also required to enroll in the ignition interlock program.

  • Click here if you need a Maryland DUI / DWI Attorney

Maryland Ignition Interlock Laws

In the state of Maryland, if you fall under the above-mentioned conditions, you will be required to enroll and participate in the ignition interlock program for 6 months.  However, if you are a repeat offender, you are required to have the device for one year for the second offense, and three years for the third.

Participation in the program may not seem that bad, but the offender is responsible for the cost of installing, maintaining, and removing the device, which can add up to hundreds of dollars, in addition to any court imposed fine and the cost of alcohol treatment programs.  If you refuse to participate, you’re looking at potential license suspensions and you won’t be allowed to get your license until you’re compliant with the requirement.

The only way to avoid participation in the program if you have been arrested for a DUI under the previously mentioned circumstances, is to avoid a conviction.  Looking for the best legal defense for a DUI?  Call the Rodriguez-Nanney, P.A., a law firm in Annpaolis today.

During the last year, the state of Maryland made news when it announced a program to begin upgrading the breathalyzer equipment that police use in potential drunk driving cases.  Considering the fact that the existing breathalyzers used by law enforcement in Maryland are about ten years old, it safe to say that it is about time that they updated their equipment!  Let’s take a closer look at this new equipment and its impact on the Maryland DWI scene.

Out with the old, in with the new

The new devices being utilized in Maryland are the Intox EC/IR II, and will be replacing the now outdated Intox EC/IR.  The major improvement in the new devices is the lower margin for error allowed by their predecessors.   In addition, the newest version, has more memory for testing and has improved on the mouthpiece to reduce the changes of it getting stuck and being unable to record a sufficient breath or giving a false reading.

  • Click here if you need a Maryland DUI / DWI Attorney

Impact of the change on DUI cases in Maryland

So, what does this mean for you if, say for example, you are stopped at a DUI checkpoint in Maryland (link to prior blog post)?  For starters, it means fewer false reads and improved accuracy.  This means that if you have not been drinking and take a breathalyzer you can breathe easier knowing there is less of a chance of a false readout.  On the other hand, if you have been drinking, this makes it easier for the state to make its case that you are guilty of a per se DUI offense.   Fear not, though!  Because even with a readout above the legal limit from one of these new devices, there are still many arguments that can be made to dispute the findings.

Do you need help with a serious traffic violation?  Call Rodriguez-Nanney, P.A. for an experienced legal team who has both the knowledge and expertise to make sure that you’re getting the defense that you deserve.

We have all seen them; you’re driving home from a party or going out for a late night snack and you get stopped at a police checkpoint.  The road is blocked off and while officially they indicate that they’re looking to make sure all passengers are wearing seatbelts, we all know that what they are really checking is the sobriety of the driver and passengers.

Statistically speaking, at any given checkpoint police might stop as many as 1,000 cars in an evening.  But according to multiple sets of statistics reported by states across America, less than 1% of those will end up being a drunk driver.  In fact, many studies seem to show that less than 1/3 of 1% of roadblocks produce DUI – related arrests.

We could have a great debate about whether these checkpoints are an appropriate, and beneficial, use of police resources, but presumably that is not why you are here; the real question that people often want to know is whether DUI roadblocks are legal in Maryland, or are they a violation of the Fourth Amendment and Maryland’s constitution?

DUI Checkpoints ARE legal in Maryland, but…

In Maryland, DUI roadblocks have been deemed legal by the Maryland Court of Appeals, in line with the US Supreme Court, but only if proper guidelines are followed, mainly having to do with the setting up and managing of the checkpoint.  If, on the other hand, these specific procedures are not followed, then a defendant arrested at at one of these check points will have a good chance of getting a “Not Guilty” verdict.

  • Click here if you need a Maryland DUI / DWI Attorney

The Importance of the 4th Amendment

The 4th Amendment of the United States constitution protects against unreasonable searches and seizures by state actors.  The 4th Amendment has been adopted and incorporated into the Maryland State Constitution, as well, providing even greater protections to Maryland residents and visitors.

When a defendant alleges a 4th amendment violation, the judge must then determine whether the search and/or seizure were “reasonable.”  When applied to a DUI checkpoint in Maryland, the court will consider how much intrusion each individual stopped by police suffered on account of being subjected to the search.   Therefore, the judge would consider how many cars were pulled over and how many arrests were ultimately made.  In considering this factor, the judge is also considering Maryland’s interest in enforcing its DUI laws, and how well a DUI check point accomplishes this goal. In our example provided above, if the court found that arrests were only made on a 1/3 of 1% rate, the judge is much more likely to find that the seizure (arrest) of the defendant was unreasonable because of the very low success rate and high amount of driver inconvenienced.

Other things that a court may take into consideration when rendering their decision would be whether the checkpoint was carried out in accordance with typical police procedure, the delay there was between checking cars, and whether cars were picked out at random or in a routine.

Have you ever been subject to a DUI roadblock?  If you are currently facing traffic charges, especially one involving a potential DUI, make Rodriguez-Nanney, P.A., a law firm in Annapolis,  your first and only call at .  Don’t roll the dice when it comes to a criminal record.  Call now to arrange for an appointment with our legal team today.

Ever since the monumental decision Miranda v. Arizona, the phrase “you have the right to remain silent” has been given epic importance, from judicial decisions to pop culture to the street level interactions between police and criminals.  And up until Berghuis v. Thompkins, that right was fairly accessible, though ephemeral, protection.  Unlike the other protected right under Miranda warnings, the right to have an attorney present during questioning, the right to remain silent did not need to be explicitly raised in order to be invoked.  However, in Berghuis v. Thompkins, the Supreme Court held that the right to remain silent is not invoked until the defendant explicitly says that he wants to remain silent.  And, thus, until those words are uttered, the police are allowed to continue questioning.  The defendant in the Berghuis had been subjected to three hours of interrogation about a murder, but he barely spoke a word.  Besides a few head nods, and answering such questions as “would you like a mint”, he was steadfast in exercising his ability to remain silent.  However, he ultimately had a moment of weakness; after three hours, he answered only one substantive question, and that answer was used against him at trial, where he was found guilty.  The Court held that the right to remain silent was not implicitly raised simply by seemingly exercising it, i.e.  his continuing refusal to answer the many questions asked to him.  They further held that by answering that one substantive question, he adequately waived his right to remain silent, and gave up his protection.

Thus, the holding seems to be that the right to remain silent must be explicitly raised, but the waiver does not.  So, the rule to take from this case is: speak to remain silent, but say one word, any word, and it will be considered a waiver.

Berghuis v. Thompkins, — S.Ct. —-, 2010 WL 2160784 (2010).

Does the plain view doctrine, a 4th Amendment exception that police officers routinely take advantage of, apply to computer searches?  The 1st, 4th, and 7th Circits have all said yes, however, the 9th Circuit has said not.

The 4th Amendment is a Constitutional right against unreasonable searches and seizures, and it is a right that the founding fathers of the United States held to be vital to a structured and free society.  Questions of whether an unfettered search of person’s personal computer violates this right is one that state and federal courts across the nation are grappling with, as the number of computers and the plethora of information stored on them continues to grow.  The problem often arises when investigators know that there is evidence of a crime in the data files of a computer, but don’t know where exactly.  Unfortunately, the only way to find it then involves searching for and opening most, if not all, of the files located on the computer, which may then lead to the discovery of evidence of other crimes.

The plain view doctrine is what allows an officer who is at a location legally, either by virtue of a search warrant or a warrant exception, to not have to ignore criminal evidence that he was not necessarily expecting to find in the first place.  This rule makes logical sense; if an officer has probable cause to enter the home to arrest a robbery suspect, why should he have to pretend the did not see the cocaine on the table?  The catch, however, is that the evidence must be in plain view.  It has to be a chance sighting by an officer who is only doing what he is already legally allowed to be doing.  But, does this logical rule make sense when it comes to computers?  The opening of files is necessary to find the evidence sought, but does this farther than the plain view doctrine was initially designed for?

Until the Supreme Court or Congress speaks on the issue, officers and courts across the nation must make individual decisions.  For now, officers would be best to stop the search as soon as evidence of a new crime is discovered, and get a search warrant to continue looking.

In U.S. v. Comstock, the Supreme Court held that federal officials can indefinitely hold inmates that are considered “sexually dangerous”, even after their prison terms are complete.  In overruling the lower courts decision, the court determined that the statute is a “necessary and proper” exercise of federal authority when Congress enacted the Adam Walsh Child Protection and Safety Act, authorizing civil commitment of sexually dangerous federal inmates.

In order to meet the definition of “sexually dangerous”, there must be clear and convincing evidence that, because of a mental disease or defect, the prisoner, if released, would have serious difficulty refraining from sexually violate conduct or child molestation, and there must be a showing that neither the state in which he was confined, nor the state in which he was tried is willing to accept custody over him.

The main issue in the case what whether the Constitution grants Congress the power to issue civil commitments.  Under the 10th Amendment, the states are reserved any power that have not been granted to the federal government, either specifically or impliedly.  Implied powers arise when the federal government must take certain actions that are “necessary and proper” to effectuate one of the express powers given.

One of the express powers given to Congress is the power to imprison those convicted of federal crimes, and to establish a system of criminal justice to punish offenders.  The petitioners in Comstock argued, however, that the relevant Act is only applicable after completion of their applicable sentence, and in some cases a finding of sexual violence warranting increased confinement may arise out after a conviction for a crime that was not sexual in nature.  However, the Court determined that the power to confine prisoners in the first place also carried the implied power to take account of other safety issues regarding their release back into society.  It cited, for example, the power of the federal government to maintain custody over a prisoner who has communicated a disease that threatens others.

U.S. v. Comstock, 2010 WL 1946729.