Posted on November 25, 2009 in Family Law

Clients often ask if their soon to be ex-spouse, ex-spouse or co-parent of their child(ren) will be able to change a custody order after it is entered at their free will whenever they want to? The answer is that the other parent may file with the Court to modify the existing order at anytime. Meeting the two-prong test required to change and/or modify custody is however not an easy task. First, the moving party must show a material change in circumstances. That begs the question, what is a material change in circumstance? There are a number of cases which assist us in defining it, but generally speaking it is one or a combination of the following: a significant change that occurred since the entry of the initial order; something material that was unknown at the time the initial order was passed has since come to light; and/or something since the entry of the Order is adversely impacting or could adversely impact the welfare of the child(ren).

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 Posted on November 20, 2009 in Driving Under the Influence

As a Maryland DUI/DWI Attorney/lawyer I represent many individuals who are charged with DUI or DWI while they are on probation for another crime. That person may be on probation for a prior Maryland DUI or DWI case or they may be on probation for a criminal case. The latter situation was what I was confronted with in Baltimore County Circuit Court last week. In this case my client was on probation for domestic violence and was facing up to six years in prision if he were to violate his probation. There is no easier way to violate one’s probation than to receive a subsequent conviction, even for a serious traffic matter (generally speaking court’s will not violate probation for non-jailable traffic offenses such as speeding). In this case the stakes were even higher than normal because the client was very much on the domestic violence team’s radar and they were chomping at the bit to request a violation of probation if he were to be convicted of the DUI and had let me know that they intended to seek the entire 6 year sentence on the violation. Needless to say, a plea bargain was not an option in this case.

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 Posted on October 30, 2009 in Criminal Defense

As a full time Baltimore Maryland Criminal Lawyer/Attorney I handle dozens of Child Abuse cases each year without ever achieving a result as bad as the one that I will discuss in detail in this blog. In this case I was hired only after the client had gone through most of the process with another attorney and was obviously dissatisfied with the result. In these situations I usually tactfully ask the client what if any research they did on their attorney to determine whether he was a criminal law specialist and therefore sufficiently experienced to handle the case. I usually get little more than a blank stare in response as I did in this case. I have blogged about this issue in the past and am continually amazed at the lack of effort some criminal defendants put into the search for a qualified criminal defense attorney. It seems that most people just go to whomever they are referred to or the first name in the phone book and never even bother to ask the attorney about his qualifications much less do any independent research into them.

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 Posted on October 23, 2009 in Criminal Defense

As A Baltimore Maryland Criminal Attorney/Lawyer I represent many people charged with either handgun offenses or violations of the State’s narcotics aka controlled dangerous substance laws. More often than not, so long as the defendant does not have an extensive criminal history, these matters can be resolved without the defendant having to serve much or any time in prison, even assuming that the State can prove the case. However, when a person gets charged with possession of firearms and felony narcotics offenses at the same time, things get a lot trickier.

This is because under Maryland Law and Federal Law there are minimum mandatory sentences that must be served without the possibility of parole associated with trafficking narcotics with a firearm – even for first offenders. Perhaps more surprisingly, these laws apply to the possession of any firearm and not simply handguns or regulated firearms such as assault weapons. So while a convicted felon may be in possession of a shotgun without violating Maryland Law (shotgun possession by a convicted felon is a violation of Federal Law) a person with no record who is caught trafficking narcotics with a shotgun would be in violation of these laws and face the mandatory penalties just the same as if he were caught with a handgun or an assault weapon; and the penalty is a stiff one indeed. Any person in Maryland who is convicted of trafficking narcotics with a firearm faces a maximum penalty of twenty years in prison but the real meat in the statute is that the convicted defendant faces a mandatory minimum sentence of five years in prison without the possibility of parole. I currently represent a person who finds himself in this exact predicament. I will explain the facts and then get into what exactly the State must prove to convict my client or any other similarly situated defendant of this charge.

My client came under surveillance by the police as a result of a tip provided by a confidential informant. The police watched him engage in what they believed to be behavior indicative of street level distribution of narcotics over a period of several days. During this time they also watched him go in at night and out in the morning a certain address in West Baltimore. Importantly, the police never witnessed any suspicious activity on or around this address. In spite of this fact, the detectives applied for and received a search and seizure warrant for that address.

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 Posted on October 23, 2009 in Family Law

Many clients incorrectly assume that mothers are favored over fathers in a custody case. The truth is that the "tender years doctrine," has been abolished in all fifty states as it violates constitutional law. This doctrine, which is what many clients are relying on when assuming that a mother may be favored over a father, stated that young children should be placed with their mother unless she was unfit. Since the abolishment of this doctrine in Maryland, neither parent is given preference for custody based on exclusively their gender.

In Maryland, the standard that is used when determining custody of a child is the "best interest standard." This is a standard in which Judges consider a number of factors such as the parents fitness, relationship of child and parents, children’s current environment, ability to maintain natural family relationships, who has been the primary care giver, wishes of child in some circumstances, any agreement the parents have made, prior abandonment of a child by a parent, the age and health of the child, and many, many other factors to determine what custody arrangement would be in the best interest of the child.

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 Posted on October 22, 2009 in Family Law

If the respondent (alleged abuser) in a protective order proceeding has a protective order entered against them, what are the petitioner’s (alleged victim of abuse) options if the respondent violates the order? A violation of the protective order is any action the respondent takes that violates the provisions the judge ordered at the time of the hearing (no contact, no abuse, no harassment, emergency family maintenance, drug/alcohol/anger counseling). This violation can occur in an interim, temporary or final protective order situation (see August 16, 2009 blog for more information on types of protective orders).

Although the protective order is civil in nature, the violations of certain safety provisions of the order are considered criminal violations. If the respondent violates the provisions of the protective order that order no contact, no harassment, no abuse, the petitioner has the option of calling the police, or filing charges on their own. If the police witness the violation or have enough evidence to believe the violation occurred, they have the authority to arrest the respondent. The petitioner also has the option of filing criminal charges with the commissioner. A conviction for a violation of a protective order can result in imprisonment and/or fining of the respondent. Specifically, for a first offense, a fine is not to exceed $1,000.00 and imprisonment is not to exceed 90 days, and for a second or subsequent offense, a fine is not to exceed $2,500.00 and imprisonment is not to exceed one year.

If the respondent violates the provisions of the protective that are more civil in nature such as provisions ordering emergency family maintenance, child custody or access issues, or to attend counseling then this violation is civil in nature, although the safety provisions can also be civil violations. Therefore, the petitioner may file a petition for contempt with the court. Maryland Code, Family Law § 4-508

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 Posted on October 19, 2009 in Personal Injury

Liability defenses often used by drivers against bicyclist involved in accidents in Maryland include:

A. Contributory Negligence
Maryland recognizes the defense of contributory negligence as a complete bar to a plaintiff’s recovery. In order to succeed in asserting this defense, the driver of a vehicle that strikes a cyclist would have to show that the bicyclist deviated from the standard of ordinary care. Usually questions of contributory negligence in Maryland are resolved by the jury. To justify withdrawal of a case from the jury on grounds of contributory negligence, "the evidence must show an act so decisively negligent as to leave no room for difference of opinion thereon by reasonable minds." Heffner, 196 Md. At 473, 77 A.2d at 131.

Factors a jury might consider in deciding whether a bicyclist exercised reasonable care may include precautions that a reasonable bicyclist would have taken under similar circumstances. Though not codified by Maryland law, published safety guidelines may be relevant to an examination of whether a bicyclist exercised ordinary care. The League of American Bicyclists suggests that bicyclists wear reflective or brightly colored clothing and that they yield to traffic in the same destination lane.

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 Posted on October 19, 2009 in Personal Injury

• Bicyclists:
– Bicyclists possess all of the same rights and duties as drivers of motor vehicles. Md. Transp. Art. §21-102 – Bicyclists, like drivers of motor vehicles, must exercise ordinary care under the circumstances. Kaffl v. Moran
– Bicyclists must ride as close to the right side of the road as practicable, except when turning left, passing, or traveling on a one way street. Md. Transp. Art. §21-1202 – Operation of a bicycle in violation of a statute does not constitute negligence per se unless the violation is the proximate cause of injury. Miles v. State.

• Drivers of Vehicles:
– Drivers may assume that other drivers will obey the rules of the road and need not anticipate that others will violate the law. Dean v. Redmiles.
– Drivers of motor vehicles owe a duty to exercise due care to avoid colliding with any bicycle ridden by a person. Md. Transp. Art. §21-1209.
– Drivers must exercise greater vigilance when approaching an intersection. Heffner v. Admiral Taxi Service, Inc.
– Drivers approaching a circular green signal, when turning right or left, shall yield right of way to any other vehicle lawfully within the intersection when the signal is shown. Md. Transp. Art. §21-202.

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 Posted on October 19, 2009 in Personal Injury

SUMMARY OF APPLICABLE MARYLAND STATUTES AND CASELAW

I. Rules of the Road, Duty & Standard of Care

The Maryland Transportation Article codifies the "Rules of the Road" for all vehicles traveling on Maryland roadways. All drivers of vehicles in Maryland must observe the rules of the road. Md. Transp. Art. §21-102. They may also assume that others will obey the rules of the road and need not anticipate that others will violate the law. Dean v. Redmiles, 208 Md. 137, 374 A.2d 329 (1977). Pursuant to Md. Transp. Art. §21-1202, the operator of a bicycle on a public street possesses all the rights and duties of the driver of a vehicle. These general duties include the duty to operate a bicycle, or any vehicle, with ordinary care under the circumstances. Kaffl v. Moran, 233 Md. 473, 477-478, 197 A.2d 240, 242 (1964). In addition, there are unique rules of the road that apply particularly to the operation of bicycles. Drivers of motor vehicles owe a duty to bicyclists to exercise due care to avoid colliding with any bicycle being ridden by a person. Md. Transp. Art. §21-1209. Bicycle operators must to ride as close to the right side of the road as practicable, except when turning left, traveling on a one way street, or passing a slower moving vehicle. Md. Transp. Art. §21-1205. Operation of a bicycle in violation of a statute does not constitute negligence as a matter of law, unless the violation is the proximate cause of injury. Miles v. State, 174 Md. 292, 198 A. 724 (1938).

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 Posted on October 17, 2009 in Family Law

On September 21, 2009, the Maryland Court of Appeals issued an opinion holding that the Circuit Court for Garrett County had erred in ordering a paternity test for a child without first considering the child’s best interest. The case, Kamp v. Department of Human Resources, began when Darren Kamp, the father of four children with ex-wife, Vicki Duckworth, requested a paternity test for his fourth child after his ex-wife filed a motion to increase child support. The parties had been married for 16 years, had three children whose paternity was not questioned, but then had a fourth child after Darren had had a vasectomy. During the divorce proceedings in 1999, Darren agreed that he had four children.

The trial court, after ordering paternity testing that found that Darren was not the father of the fourth child, denied Vicki’s motion to increase child support and further terminated Darren’s child support obligation. The Department of Human Services appealed the trial court’s ruling, arguing that Darren could not contest paternity. Maryland’s highest court’s judges all agreed that trial court erred in ordering the test and terminating support, but disagree on their reasoning why. Three of the judges would base their decision on Darren’s 13 year delay in challenging paternity of the child, while the other four judge’s base their decision on the trial court’s lack of consideration of the best interest of the child before ordering the test.

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