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The exclusionary rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant’s constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law. It is prophylactic rule formulated by the judiciary in order to protect individuals’ constitutional right. However, in some circumstances at least, the exclusionary rule may also be considered to follow directly from constitutional language, such as the Fifth Amendment’s command that no person “shall be compelled in any criminal case to be a witness against himself” and that no person “shall be deprived of life, liberty or property without due process of law.”

The exclusionary rule is designed to provide a remedy response to prosecutors and police who illegally gather evidence, in violation of the Constitution, by conducting unreasonable searches and seizure or compelled self-incrimination.  Clearly, as an attorney focusing exclusively in the area of criminal defense, specifically Howard County criminal defense, the exclusionary rule is paramount importance.  Unfortunately, however, the exclusionary rule is in grave jeopardy.   

While the assault on the exclusionary rule is currently gaining full steam, it began in 1983 with a young lawyer in the Reagan White House who worked vigorously on a “the campaign to amend or abolish the exclusionary rule.”  The Reagan administration’s attacks on the exclusionary rule never gained much steam. The problem is, however, that the young passionate lawyer from the Regan Administration was John G. Roberts Jr., and he is now the chief justice of the United States Supreme Court.

January 14, 2009, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he proposed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the Chief Justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggests that the exclusionary rule may become a legal remnant in the very near future.

The Herring decision “jumped a firewall,” said Kent Scheidegger, the general counsel of the Criminal Justice Legal Foundation, a victims’ rights group. “I think Herring may be setting the stage for the Holy Grail,” he wrote on the group’s blog, referring to the overruling of Mapp v. Ohio, the 1961 Warren Court decision.

Justice Samuel A. Alito Jr. joined the Herring decision and has been a reliable vote for narrowing the protections afforded criminal defendants since he joined the court in 2006.   Justice Alito replaced Justice Sandra Day O’Connor, who was considered a moderate in criminal procedure cases.  With Alito’s replacement of O’Connor, there could be enough votes to eradicate the exclusionary rule altogether.  The four certain votes are Chief Justice Roberts, Justice Alito, Justice Antonin Scalia and Justice Clarence Thomas, who is also an alumni of the Reagan administration.

The fate of the rule will to turn on the views of Justice Anthony M. Kennedy.  It has been said that the liberal and conservative wings are eagerly courting Justice Kennedy’s vote Kennedy’s vote, could settle the issue once and for all.  Now with Souter’s retirement on the horizon, we are entering a whirlwind of unknown possibilities. 
Currently, the United States takes a distinctive approach to the exclusionary rule, requiring automatic suppression of physical evidence in some kinds of cases. That means, in theory at least, that relatively minor police misconduct can result in the suppression of conclusive evidence of terrible crimes.  Other nations balance the two interests case by case or rely on other ways to deter police wrongdoing directly, including professional discipline, civil lawsuits and criminal prosecution.  This kind of multi-tiered approach seems to be where the Court is headed.

The Herring decision can be read broadly or narrowly, and its fate in the lower courts is unclear. The conduct at issue in the Herring case was an Alabama man, Bennie D. Herring, who was arrested on officers’ mistaken belief that he was subject to an outstanding arrest warrant.  However, he had no warrant – the mistake was due to poor recordkeeping in a police database rather than a mistake by an officer on the scene.  Herring was searched incident to the improper arrest and gun and drugs were found on his person.  The theory remains that Herring should have never been arrested, thus never searched, and thus, the evidence must be excluded. However, the Supreme Court held that because the misconduct leading to Herring’s arrest was “attenuated from the arrest” the search was valid. 

What this means is that while the exclusionary rule is still alive its veil is smaller and its Berlin wall of protection for victims of unconstitutional police misconduct had begun to fall.  The Herring decision is studded with sweeping suggestions that all sorts of police carelessness should not require, in Chief Justice Roberts’s words, that juries be barred from “considering all the evidence.”  A broad reading of these comments by the lower courts could invariably be the death of the exclusionary rule as a practical matter.

The nomination of Barack Obama is a proverbial sigh of relief for the defenders of the exclusionary rule and most if not all criminal defense practitioners.  At least for the time being, it appears that the five votes required to disavow the exclusionary rule will not be obtained. While I don’t like the result, I am in awe of Justice Roberts for beginning a quest in 1983 with the Regan administration and fighting his way, with that issue in his briefcase, to the most powerful position in the United States legal community where he can now, very seriously, finish what he began. 

This article was written by David Zwanetz. associate attorney at Howard County’s premier criminal defense firm. David Z. also trains and competes in Brazilian Jiu Jitsu at Baltimore MMA school, Crazy 88 Brazilian Jiu Jitsu.

In recent years, most state and local governments have tightened, and more aggressively enforced laws pertaining to driving and alcohol consumption. Prosecution of those charged is more rigorous, and the prescribed penalties more painful. The stiffer laws enjoy public support, and there’s little reason to believe that the current trend won’t continue.

The best way that a motorist can protect themselves from the horrors of an alcohol impairment charge is to never drink anything within two or three hours of getting behind the wheel. Even very low levels of consumption can lead to arrest and conviction under Maryland laws. It’s even more important to avoid alcohol in any quantity when driving at night. Enforcement personnel are more alert to the smallest driving or automobile irregularity after dark. They’re more likely to make a pull-over for somewhat trivial matters, then gather evidence of alcohol use. Any alcohol aroma or watery eyes will inevitably lead to formal tests—tests that can lead to major problems

Driving Under the Influence (DUI) is a serious charge in Maryland, and in Howard County. Drivers tested for alcohol consumption will be charged with DUI if their blood alcohol content (BAL) registers .08 or above. A reading of less than .08 won’t necessarily get you off the hook. Maryland laws allow drivers to be charged with Driving While Impaired (DWI) if their BAL registers more than .01 and less than .08.

The penalty for DUI in Maryland, is a fine of up to $1,000, and can lead to a year in jail. The lesser offense of DWI carries a maximum fine of $500, and not more than 90 days in jail. These are serious penalties, and can have far reaching impacts on a person’s life and livelihood that extend well beyond the legal punishment. Drivers charged with DUI/DWI in Howard County should not delay seeking advice and counsel from a Howard County DUI lawyer.

Here’s some steps to follow for drivers who do get charged with DUI/DWI

1. Get the services of a Howard County DUI lawyer.

2. Get a Motor Vehicle Administration (MVA) hearing within 10 days of arrest to protect driving privileges while awaiting trial.

2. Enroll in an alcohol education program before your court date. It’s a good way of putting a positive spin on your case for the judge.

3. Remember that no one’s guilty until the judge pronounces it. Don’t let panic set in and prevent you from responding intelligently and logically.

Article by David Z., Associate Attorney at Shapiro & Mack - Howard County’s premier criminal defense firm. Dave Z., also competes in Brazilian Jiu Jitsu, training at Baltimore MMA school, Crazy 88 bjj.

By: David Zwanetz, Esq., Shapiro & Mack in Howard County, Maryland

“What should I do if I’m ever pulled over after having a few drinks?” This question ranks as number two of the top ten most frequently asked. Thus, I have decided to let my philosophy out of the bag. I want to preface this article by saying that I am by no means advocating drinking and driving. With that said, as a defense lawyer focusing on Howard County DUI law (not federal law), I recognize that state DUI law is governed by a set of rules and regulations that should be, but are not, shared with the general public. This article is focused on the rules pertaining to the breath test and why those rules make consenting to a breath test such a terrible decision. The decision to consent or to refuse a breath test is the single most important decision when faced with potential DUI/DWI in Maryland. This tenuous area of law changed in January 2007, making it less advantageous, almost ludicrous, for anyone to ever take a breath test.

First things first, it is imperative to know that the result of a breath test is often used as the paramount evidence to illustrate a defendant’s level of intoxication. In order to lay a proper foundation of how all of this will play out, I must back up a bit. The breath test decision will likely be the second big decision you will have to make if stopped for an alleged drinking and driving offense. The first will be whether or not to consent to field sobriety tests. Just like you have seen on all the television shows, a suspect will get pulled over, the officer will ask for his or her license and registration, and then will ask him or her to step out of their vehicle. Once removed, they will inevitably be asked to submit to field sobriety tests. You know the tests I mean: walking the line, standing on one leg and counting to 10,000, following the pen with your eyes, reciting the alphabet in multiple languages backwards. To cut to the chase, my philosophy is simply to never consent to field sobriety tests. After all, no matter what your mental state, how do you think you would do? As part of the rules, you have the unbridled right to refuse field sobriety tests. In fact, unlike the breath test, there is no penalty for refusing the field sobriety tests. Thus, you can only hurt yourself by going through this dog and pony show. Think about it for a second, you get stopped by the police for suspicion of driving drunk, then the first thing you are asked to do is voluntarily submit to a series of extremely difficult physical demonstrations. The bottom line is that consenting to the field tests is a lose/lose situation. If you do well you can be accused of being an extreme alcoholic that can do difficult things even when drunk, and if you fail the result is clear. Remember, if one were pulled over for DUI and refused the field sobriety tests they may still be arrested on suspicion of dui. Clearly, however, suspicion is much better in court than confirmation of DUI.

Moving on, once stopped for alleged drinking and driving you will likely be arrested, brought back to the police station, and asked whether or not you will consent to a breath test. What should you do? I will simply lay out the rules of the game and the answer should be clear. First of all, without a breath test the State will be forced at trial to prove that you were impaired solely based on the police observations of you. Imagine if you refused field sobriety tests, as I recommended, (which again you can do with no penalty) and refused a breath test. There would simply be little to no evidence to present at trial to show that you were either intoxicated or impaired. Let me pose a hypothetical example: John Doe gets pulled over on a Friday night for speeding. Upon speaking with the police officer, alcohol is detected on Mr. Doe’s breath. Mr. Doe is removed from his car and asked to submit to field sobriety tests. He stops for a moment and thinks about David Zwanetz’s DUI article and decides to be politely uncooperative and refuse to submit to the field tests. Mr. Doe is swiftly arrested, brought back the police station, and asked to submit to the breath test. Thinking “what would Dave Z do?” he refuses the breath test as well. Now what evidence will the State have at trial? 1) Mr. Doe was speeding, 2) Mr. Doe smelled like alcohol. On these facts, at trial, the State would most likely be unable to prove beyond a reasonable doubt that Mr. Doe was either substantially or even slightly impaired. After all, Mr. Doe could surely smell like alcohol without actually consuming alcohol, and speeding is a relatively common offense that could surely be committed by a sober individual.

As I mentioned above, there is no penalty for refusing field sobriety tests, and therefore, no one should ever take them unless he or she is completely alcohol free. There is, however, a penalty for refusing a breath test. This penalty is the only reason why the question of whether or not to take the test is a question at all. Basically, if you refuse a breath test, the maximum criminal penalty you are facing can be increased. But, in order for there to be an enhanced criminal penalty there has to be a criminal conviction, which as I explained above is unlikely if one refuses the tests. Thus, the most worrisome penalty for most people comes not in District or Circuit Court but at the Motor Vehicle Administration. Interestingly, however, as of January 2007 the penalty for refusing a breath test so closely mirrors the penalty for taking the test and blowing a high result that there is simply no logical incentive to consent. Allow me to expand.

If charged with DUI/DWI in Howard County, Maryland, you would be facing both criminal and/or civil penalties. On the criminal end, you would be facing approximately one (1) year in jail and/or $1000.00 in fines. On the civil end, the MVA will conduct a hearing to decide what type of suspension, if any, to impose on your license. The level of suspension you would be facing would vary depending your choice of either taking or refusing the breath test. The penalty for refusing comes by way of the MVA possibly imposing a greater period of license suspension for a person that refuses to submit to a breath test. This is the legislature’s way of encouraging people to take the breath test, and conversely, punishing those who pull the carpet from under the feet of the State. Interestingly, however, in my opinion in January of 2007 the legislature made a major blunder. Below I have broken down the three possible MVA penalties in order to expose the flaw.

- On a first offense DUI/DWI, if you take the breath test and blow a .08 - .14 you could face up to 45 days of license suspension. That suspension can be modified to allow the suspended driver to go to and from work, school, alcohol counseling, and to any pre-planned doctor visits or to get meds.

- On a first offense DUI/DWI if you take the breath test a blow a .15 or above you are facing 90 days of suspension, which can only be modified by getting the ignition interlock system installed on your vehicle for 1 year.

- On a first offense DUI/DWI if you refuse a breath test you are facing 120 days of license suspension, which can only be modified by getting the ignition interlock installed on your vehicle for a period of 1 year.

Now do you see? The MVA/legislative penalty for taking a test and blowing a .15 or higher is almost exactly the same as refusing the test outright. Therefore, there is absolutely no logical incentive to take a breath test and give the Police and the State’s Attorneys the evidence they need to convict you. Additionally, everyone is entitled to a request an MVA hearing where an attorney like me can fight to prevent one from getting suspended at all. The long and short of it is that if your refuse both the field tests and the breath test you will most probably be acquitted in criminal court, where you are facing jail, but have to face minutely smaller penalties at the MVA. Would anyone choose possible jail over possible license suspension? I know I wouldn’t.

In my years of study I have always been fascinated with how little the general public knows about the very laws that govern their daily lives. I find nothing wrong with sharing the rules of the game, even if it means exposing flaws in the system. Unquestionably, with knowledge comes power and in no way do I intend to keep this power to myself.

This article was written by David Zwanetz, Esq., Associate Attorney at the law firm of Shapiro & Mack - Howard County, Maryland’s, top Criminal Defense firm. David Z. also trains and competes in Brazilian Jiu Jitsu at Baltimore MMA school, Crazy 88 Brazilian Jiu Jitsu.