Seth Okin is a DUI, traffic, and criminal defense attorney who practices across the state of Maryland.
The Supreme Court has ruled that police officers can require drivers to submit to breathalyzer tests without a warrant. The holding of Birchfield v. North Dakota allows for the arrest of individuals who refuse to allow the blood alcohol content (BAC) of their breath to be tested during a traffic stop, a penalty imposed by many states.
While police must still obtain a warrant for the more invasive form of BAC testing requiring a blood sample, a majority of the Court held that law enforcement’s interest in accurately testing BAC at the time of the traffic stop outweighs potential privacy concerns when the more commonly administered breath test is utilized.
Several states impose criminal and civil penalties for refusing to consent a handheld breathalyzer test, with arrest being the most common consequence of refusing to allow one’s BAC to be tested. In Birchfield, the Supreme Court addressed the specific question of whether criminalizing a drivers’ refusal to take a BAC test violates the Fourth Amendment.
Although Plaintiffs cited privacy concerns, arguing that the Fourth Amendment is meant to protect citizens from these types of warrantless searches, a majority of judges nonetheless found their argument unconvincing when applied to handheld breathalyzer devices.
The majority opinion was written by Alito and joined by Roberts, Kennedy, Kagan and Breyer, and draws a distinction between the two methods used to determine a person’s BAC; blood and breath testing.
Although the Court has ruled in the past that chemical tests of blood alcohol content constitute searches under the Fourth Amendment, Alito reasoned that warrantless “searches” of a person’s blood alcohol level through a minimally-invasive breath test do not implicate the same types of privacy concerns that are raised when administering a blood test.
Taking into account the time-sensitive nature of accurately measuring a person’s BAC, which naturally decreases as the body metabolizes alcohol, Alito felt the interests of law enforcement outweighed any privacy rights implicated by being forced to blow into a hand-held device.
Alito also noted that individuals who refuse to take a breathalyzer test are likely not doing so because they feel that the act of blowing into a straw is an invasive violation of their privacy, but rather because they do not want their BAC to be tested at that time.
In contrast to the quick and easy administration of a breathalyzer test, the process required for a blood test requires a person’s bodily fluids to be physically and permanently drawn out of their body, implicating a more serious privacy concern. The warrant requirement for law enforcement to require an individual to submit to this type of testing stands.
Birchfield specifically challenged the criminal penalties many states impose upon individuals who for refusing to submit to a breath test in the absence of a warrant, arguing that criminal penalties may not be imposed for lawfully refusing to consent to a warrantless search.
The majority opinion analyzed the practical methods involved in administering these searches, concluding that a breath test, but not a blood test, may be legally administered as a “search incident to lawful arrest for drunk driving.”
Justices Sotomayor and Ginsburg dissented, arguing that both tests should require law enforcement officials to obtain a warrant. Justice Thomas wrote separately to clarify that while he agreed with the majority opinion, he felt that attempting to draw distinctions between the different BAC tests was irrelevant to the legal analysis. Thomas felt that the distinction the majority drew between various methods of administering the same essential chemical test were arbitrary.
While Sotomayor and Ginsburg warned that relaxing the warrant requirements could undermine important Fourth Amendment privacy protections, Thomas felt neither blood nor breath tests should require a warrant in the first place.
In light of the fact that warrants in these situations may be obtained in minutes over the phone, the survival of warrant requirement is less of a condition in practice than it may seem in the legal analysis. However, the holding may affect best practices of local state law enforcement in a variety of jurisdictions across the county.
As technology rapidly advances, allowing for ever-more sophisticated methods of BAC testing, the battle over what privacy rights are protected by the Fourth Amendment will likely require further analysis in the future.
Borderstan contributor and law firm sponsor Price Benowitz LLP. The views and opinions expressed in the column are those of the author — our contributor and law firm sponsor Price Benowitz LLP — and do not necessarily reflect the views of Borderstan.
Amato Sanita is a criminal defense attorney who practices in state and federal courts in Buck’s County and Philadelphia, PA.
Maine officials recently testified before the U.S. House Oversight and Government Reform Committee to address concerns over fraudulent use of food stamp benefits. Department of Health and Human Services Commissioner Mary Mayhew and others have been petitioning the federal government and the U.S. Department of Agriculture to allow the state to pursue photo identification on all benefit cards in Maine.
Food stamps, known so because they were at one time issued as stamp books, have evolved to a more modern shopping device. Presently known as SNAP — Supplemental Nutrition Assistance Program — benefits, food stamp allowances are loaded on electronic benefit transfer (EBT) cards similar to debit and credit cards.
Easily manipulated and traded like any cash commodity, food stamps have long been subject to fraudulent misuse. Difficult to prevent and trace, food stamp fraud has been given careful consideration by both the USDA and state agencies that administer the program. According to latest statistics, fraud is down from a 1990’s rate of four-cents on the dollar to just one penny per dollar loss.
To lower the fraud rate even more, some agencies, like Maine’s, are attempting to convert all EBT cards to a mandatory photo ID card. In theory, it is a simple solution to combat food stamp trafficking. Maine officials have issued 60,000 photo cards voluntarily and would like to increase the number to include all of the state’s 101,000 SNAP recipients.
Not so fast, say USDA officials responsible for regulating the food stamp program.
SNAP is a federally funded program administered by state agencies, but who sets the rules can be a legal conundrum. An issue as commonplace as a photo ID card quickly becomes mired in questions of federal and state law with constitutional ramifications.
In the District of Columbia, where SNAP beneficiaries number over 130,000 or twenty percent of the population — one of the highest ratios in the nation — food stamp fraud is just as much an issue. The District has no photo requirement for its EBT cards.
However, like Maine recipients, SNAP users in Washington, D.C. can spend their monthly benefit in any state and at any retailer that accepts EBT. Because of the District’s size and proximity to other states, it is likely that a recipient in the nation’s capital might use their EBT card in Maryland or Virginia. Hence one significant issue with photo EBT cards.
Pursuant to federal regulations and the USDA’s own rules, inclusion of a photo on the EBT is entirely legal. The Food and Nutrition Act of 2008 allows that a state agency may require photos — it is in the implementation that conflict arises.
Lacking uniformity among all states poses a challenge to SNAP users. If D.C. SNAP recipients have no photo EBT card and travel to Maine, would their cards be valid as required by program regulations? An EBT card from one state must be honored in another state.
Another challenge that the many agencies need overcome is a separate federal provision that requires that no retail grocer “may single out [EBT card] users for special treatment in any way.” Taken in a strictly legal context, this means that a retailer who must see a photo ID for an EBT card user must also ask any debit or credit card user for the same identification.
Additionally, Article I, Section 8 of the U.S. Constitution grants the U.S. Congress the exclusive power to regulate commerce among the states. At first blush it would appear that the regulation of food stamp spending and usage — as a form of interstate commerce — is vested solely with federal regulations and the USDA. One state cannot refuse to honor EBT cards issued by another state simply because a recipient has crossed a state line; or, if a card has a photo or not.
The creation of a simple photo ID card becomes a complex and twisted struggle between the federal agency that funds SNAP and the many state agencies that administer the benefits.
In Washington, D.C., at least two agencies — the city’s Economic Security Administration and the Department of Human Services — are involved in the application, issuing, and regulation of SNAP benefits. They do so only under the provisions established by the USDA.
While food stamp fraud is a financial crime, is can easily lead to drug and property crimes. Preventing fraud is a necessary multi-agency consideration. Like any problem that affects society as a whole, the solution is neither a federal nor a state question singly.
Maine’s attempt to issue statewide photo ID cards for SNAP recipients may someday end up before the U.S. Supreme Court. Until then, as long as the needy are not punished or discriminated against for using an EBT card properly, the USDA and states must work cooperatively to reduce fraud using the best practices available.
Peter Tragos is a partner at Tragos, Sartes, and Tragos, a law firm that practices in federal court and Florida. They handle FLSA claims.
The D.C. Council has unanimously voted to raise the District’s minimum wage to $15 an hour over the next five years. Although the federal minimum wage is set by the Fair Labor Standards Act (FLSA), many states and cities have passed legislation to increase the minimum wage in their specific geographic regions as a result of the higher cost of living in those areas.
Like other major metropolitan cities such as Los Angeles, Seattle, and New York, DC officials feel that the increasing cost of living in the District requires an increase in the minimum wage for both traditional entry level workers, as well as tipped employees.
The Fair Shot Minimum Wage Act of 2016 passed last week will gradually increase the District’s minimum hourly wage from the current rate of $10.50 to $15.00 by the year 2020, with the first increase set to take place less than a month from now, on July 1, 2016. In addition, the tipped minimum wage will increase in annual $0.57 cent increments from the current $2.77 an hour until it reaches an hourly rate of $5.00 on July 1, 2020.
Thereafter, the bill provides that both wages will continue to increase based on Consumer Price Index data in order to match the constantly rising cost of living in the District. The automatic increase going forward was included in an effort to make future legislation addressing the minimum wage unnecessary, as the passage of the bill has been the subject of intense controversy.
John Yannone is a partner at Price Benowitz and the head of the firm’s Personal Injury Practice Group. He practices in D.C. and Maryland.
Officials from Virginia, Maryland, and D.C. released a proposal to create a new, more powerful Metrorail Safety Commission to address the safety concerns that have troubled the Metro for years. The proposal comes amid increasing pressure for transparency and an overhaul of Metro safety in light of the slew of hazardous incidents like track fires, a shutdown of the Metro, and a recently reported case of sexual assault on a Red line train bound for Glenmont in D.C.
The new safety commission will have significantly more power to conduct investigations and enforce safety measures than the previous Tri-State Oversight Commission, which failed at Metro security and was taken over temporarily by the Federal Transit Administration. This was the first time that the FTA has intervened in a subway system in the history of the U.S., marking a low point for the 40-year-old Metro.
Mayor of D.C., Muriel Bowser, Governor of Maryland, Larry Hogan, and Governor of Virginia, Terry McAuliffe together announced the draft this week for the bill that they will present at the D.C. Council this summer, and at General Assembly sessions in Maryland and Virginia next year.
The proposal details the power that will be granted to the Metrorail Safety Commission, which includes creating and enacting safety rules, doling out citations and fines for violations, conducting investigations into lapses in safety, issuing subpoenas for safety investigations, and requiring transit agencies to invest in necessary safety equipment.
One provision in the bill that has raised eyebrows regards the Commission’s ability to decide when or if they make their investigations available to the public. With many people calling for more transparency, it is concerning that a new safety commission will be entitled to pull the curtains on investigations that relate to public safety. These reports will be shown to the mayor of D.C. and the governors of Virginia and Maryland, but in confidentiality. There has been no comment on this provision as of yet.
The Commission will be a six-person panel made up of two representatives from each region of the Metrorail, who will be compensated with $200 per day spent on duty with funds from each jurisdiction. The operating costs of the Commission will be independent of the Metro and will be divided equally between D.C., Maryland, and Virginia, with federal funding when applicable.
Transportation Secretary Anthony Foxx and federal officials applauded the proposal as a positive sign, while remaining firm on the definitive need for a Metro safety commission that can overhaul the transportation system.
Any step to implement an entity that can monitor and secure the safety of metro riders is certainly welcome in D.C., but the secrecy provision is concerning when it is clear that greater transparency about safety is desired among Metro riders.
In April, a woman who fell asleep on a Red line train was sexually assaulted by a man who threatened her with a knife, before exiting at the Glenmont station. Authorities quickly apprehended him using surveillance video, but the incident was not reported until six weeks later. Metro General Manager Paul Wiedefeld claims that because the suspect was quickly taken into custody and did not pose a threat to the public, they did not feel that it was necessary to inform Metro users of the incident.
However, many of the hundreds of thousands of daily Metro users disagree. They took to social media outlets like Twitter to express their dismay that this incident was concealed from them. Many comments raised the point that knowing about these happenings on the subway can allow them to make more informed choices and take necessary safety precautions.
With this in mind, it will be interesting to see how this Metrorail Safety Commission legislation progresses with the secrecy provision included. One has to wonder how the lack of transparency affects our safety in public transportation, and who exactly the secrecy provision aims to protect.
Borderstan contributor and law firm sponsor Price Benowitz LLP. The views and opinions expressed in the column are those of the author — our contributor and law firm sponsor Price Benowitz LLP — and do not necessarily reflect the views of Borderstan.
Kerri Castellini is a trusts and estates attorney in Washington, D.C. and Maryland. She helps clients with estate planning, guardianship, and probate cases. Kerri is a member of the Women’s Bar Association and has written about evolving estate planning issues like digital assets (accounts, passwords, and web properties).
The Republican-controlled House of Representatives took a clear stand against the first prong of Mayor Muriel Bowser’s renewed push for D.C. statehood last week, striking down the District’s budget autonomy measure.
The Local Budget Autonomy Amendment Act of 2012 has been a source of controversy between Congress and the District since its inception, although the vast majority of D.C. voters support it. Republicans have been questioning its legality both in and out of court since the referendum was approved by over 80% of D.C. voters in 2013.
In keeping with D.C.’s continued resistance to Congressional control of the local government, the Local Budget Autonomy Amendment Act would allow District officials to spend local tax dollars and non-Federal funds without having to wait for Congress to adopt an appropriation act.
D.C. officials point out that having to wait for Congressional approval leads to delays in the provision of important public benefits and services, such as police patrols and public school nurses.
Despite a recent finding by a D.C. superior court judge that the Local Budget Autonomy Amendment Act is Constitutional, a majority of the House still feels that the District is impermissibly overstepping its federal boundaries.
In addition, outspoken Republican opponents fear that removing the Congressional approval requirement will lead to the funding of abortions and other controversial programs within the District.
The Local Budget Autonomy Amendment Act is premised on the powers granted by the District of Columbia Self-Governance and Government Reorganization Act, more commonly known as the Home Rule Act of 1973. The historic passage of the Home Rule Act was the first and most important step toward D.C. autonomy, relaxing Congressional control of the District and granting local government officials general powers to govern local affairs.
The Local Budget Autonomy Amendment Act seeks to extend the powers granted to the D.C. legislature by the Home Rule Act in order to allow the District to exercise greate control of local funds by removing the existing Congressional approval requirement.
Last March, in a 39-page opinion, D.C. Superior Court Judge Brian F. Holeman determined that Congress had chosen to delegate “its authority and responsibility over the District’s affairs to the local government” with the Home Rule Act, and that the Local Budget Autonomy Amendment Act was a valid exercise of that delegated authority. “This Court is unable to interfere with that lawful delegation of authority and exercise of that delegated authority by the Council, the Mayor, and the citizens of the District of Columbia,” Judge Holeman concluded.
In spite of the finding that the Local Budget Autonomy Amendment Act was a valid exercise of the authority delegated to the District’s legislature, Republicans have been outspoken in their belief that D.C. officials are overstepping their Constitutional authority. House Speaker Paul Ryan condemned the Autonomy Amendment Act as unconstitutional, claiming the D.C. government was running “fast and loose with the Constitution.” Citing Article I, Section 8 of the Constitution, which gives Congress the power to “exercise exclusive Legislation in all Cases whatsoever, over . . . the Seat of the Government of the United States,” Ryan issued a statement successfully calling upon the House to “act to take back Congress’s powers under the Constitution.”
The Local Budget Autonomy Amendment Act was struck down by a large margin last Wednesday, with two Democratic representatives, Jim Costa (Calif.) and Brad Ashford (Neb.), siding with their Republican counterparts to bring the vote to 240 to 179.
However, despite the overwhelming passage of the Republican-backed Clarifying Congressional Intent in Providing for D.C. Home Rule Act of 2016, or HR 5233, D.C. officials have not lost hope.
The Local Budget Autonomy Amendment Act still has to go to the Senate, and the District has some powerful Democratic allies on their side, including President Obama, who has threatened to veto HR 5233.
In the weeks leading up to the House’s vote on the Budget Act, the White House published a statement of administrative policy making the President’s feelings on the issue of D.C. statehood very clear.
“The Administration is disappointed that the Congress has failed to provide elected leaders in the Nation’s capital the most basic authority to spend local tax collections without congressional approval, an authority held by local officials across the Nation… Such authority is fundamental to a well-functioning democracy, and the Congress denying the District this authority is an affront to the residents and elected leaders of the District.”
This message echoes the sentiments of many D.C. residents, who feel Congress is denying them their basic rights as U.S. citizens.
The published statement ended with a clear warning to the House that if the President were presented with HR 5233, his senior advisors would recommend he veto the measure. The fight for D.C. statehood is far from over.
Borderstan contributor and law firm sponsor Price Benowitz LLP. The views and opinions expressed in the column are those of the author — our contributor and law firm sponsor Price Benowitz LLP — and do not necessarily reflect the views of Borderstan.
Whitney Butcher is a personal injury attorney in Raleigh who focuses on litigation regarding defective products and dangerous drugs. Ms. Butcher is an associate with Whitley Law Firm, a firm with offices in Winston-Salem, Raleigh, and across North Carolina.
It is being called “the largest and most complex safety recall in U.S. history” according to the National Highway Traffic Safety Administration (NHTSA). 28.8 million airbags have already been recalled and NHTSA has recently announced that through 2019, it plans on recalling an additional 35-40 million more.
Fourteen separate automakers are being advised to recall vehicles with airbags made by a major supplier, Takata. After 10 deaths and over 100 injuries, NHTSA has discovered a defect in some of these airbags. The airbag inflators can rupture, spraying sharp metal shards with tremendous amounts of force throughout the vehicles.
Among the 10 reported dead as a result of the faulty airbag was a 17 year old girl from Texas. She was driving a 2002 Honda Civic. The airbag exploded and the shrapnel from the airbag struck her neck. Many more have been horrifically injured with reports of metal shards slicing the occupants’ upper bodies.
NHTSA has not yet released a list of the specific vehicles that could be affected with this latest recall but it plans on consulting with the automakers in question to establish a roll-out schedule with the highest risk vehicles being called first.
Vehicles being operated in areas with high humidity as well as older model vehicles have been identified as higher risks for rupturing airbag inflators. NHTSA imposed a civil penalty of up to $200 million against Takata. It has been documented that Takata was aware of the faulty airbags possibly years before filing notification with federal regulators.
If you are notified that your vehicle is part of the recall, the first thing you should do is remain calm. Out of the 30 million cars that have already been impacted with the potentially faulty airbags, only a very small number have actually been affected.
It is important, however, that you take the recall seriously and make it a priority to have the work completed as soon as the new parts become available and the work can be scheduled. The work must be done at a franchised dealership. Independent mechanics are not permitted to do the work on recalls.
Karin Riley Porter is a criminal defense attorney with Price Benowitz LLP. Ms. Porter is a former prosecutor who works out of her office in Fairfax, Virginia. She handles white collar, sensitive misdemeanor, complex DUI, and felony cases in Northern Virginia.
A group called The Pink Pistols are celebrating a major victory in both the gun control as well as the gay rights arena, following a finding that portions of D.C.’s concealed carry requirements are “likely unconstitutional.”
Last week District Judge Richard J. Leon granted the preliminary injunction sought by the Pink Pistols and their co-plaintiff, D.C. resident Matthew Grace, effectively halting enforcement of the District’s “good cause” requirement to obtain a concealed carry permit.
Although the D.C. Attorney General plans to appeal the decision and request a stay of the injunction, the decision may nonetheless have a ripple effect on similar gun control legislation in other states. In addition to the legal ramifications, the publicity surrounding the decision has brought the Pink Pistols’ message into the public spotlight, a victory in and of itself.
The Pink Pistols feel that animus toward perceived sexual orientation “constitutes a clear and present danger to the sexual-minority community that predicates just cause to carry a firearm for self-defense.” Pink Pistols leader Gwen Patton hopes increased public awareness that the LGBTQ community is arming itself will have a deterrent effect on hate crimes.
Current D.C. regulations require applicants seeking a concealed carry permit to meet multiple gun safety, age, personal history, and health requirements, all of which must be verified by a member of the Metropolitan Police department during an interview with the applicant.
The pending lawsuit does not challenge any of these requirements, which are mirrored in nearly every state’s concealed carry application process. Rather, at the heart of the lawsuit is D.C.’s “good cause” provision, which provides that the Chief of the Metropolitan Police Department “may” issue a concealed carry permit only “if it appears that the applicant has good reason to fear injury to his or her person or property or has any other proper reason for carrying a pistol” D.C. Code § 22-4506(a).
April Cockerham is an immigration attorney with Price Benowitz, LLP, a law firm based out of Washington, D.C., which also represents clients in criminal defense and DUI matters. April received her J.D. at the University of Arizona.
Once again, Washington D.C. is poised to become the stage for a real-time examination of bipartisan interpretations of federalism, as Mayor Muriel E. Bowser (D) leads the district’s renewed push for statehood.
Although there has been an ongoing struggle within D.C. to resolve the inequalities suffered by its residents as a result of the district’s federal status, the coming Presidential election may prove a turning point in the long road toward statehood.
District officials have been trying to take advantage of the American population’s renewed interest in politics to raise public awareness of D.C. residents’ second-class citizenship status, and it appears to be working.
Although residents of Washington D.C. are required to fulfill citizenship duties just like residents of any other state, they have no representation in Congress as a result of D.C.’s federal district status. In addition, although residents must pay taxes, the local government cannot spend those tax dollars as it sees fit without prior Congressional approval.
Congress treats the district of Washington D.C. just like any other federal agency, which in practice amounts to hobbling the local government in both its budget and legislature, as well as denying the electorate federal voting rights.
Opponents of the district’s efforts feel that granting D.C. statehood would be unconstitutional, as the federal district was originally created to form a politically neutral arena within the United States – a Capitol not swayed by state or local politics.
In response to such concerns, the latest proposed referendum would leave a small federal segment untouched within the new state of Washington D.C., negating the need for a constitutional amendment. Shrinking the size of the district while adding a new state to the union are both squarely within Congress’ exclusive jurisdiction.
Proponents of statehood point to two prongs of Congressional power – Congress’ exclusive and absolute authority over the district itself, as well as its sole vested power to create new states – as enabling Congress to do exactly what is sought by the proposed referendum while acting squarely within its constitutional authority.
In spite of outspoken opposition to the proposed change, nothing in the Constitution expressly prohibits the creation of a new state out of a portion of the current federal district. Article I, Section 8, Clause 17 of the Constitution, (also known the “Enclave Clause”), grants Congress exclusive jurisdiction over the federal district.
While Clause 17 also limits the total size of the district to “not exceeding ten miles square,” this provision has been interpreted as merely limiting the total size of the district, and thus does not impair Congress’ implicit authority to change the geographic area of its exclusive jurisdiction when necessary. In fact, Congress has already exercised its jurisdiction to reduce the total size of the district once.
Mary Nerino is an attorney in Virginia with Price Benowitz LLP who practices in criminal defense. In addition to misdemeanor, DUI, and felony cases, Mary represents students who are facing allegations of misconduct North Carolina is now suing the federal government in defense of its discriminatory law concerning the LGBTQ population and the usage of public restrooms. According to the law, people may only use public restrooms corresponding to the gender listed on their birth certificates.
The Justice Department found the law to be a violation of the 1964 Civil Rights Act in its function of restricting a certain portion of the population, as identified by their personal gender identity, when it comes to use of the restroom and public facilities.
In other words, the law condones and actually facilitates a form of sexual discrimination that is generally frowned upon – not to mention, illegal, as outlined in Title VII of the 1964 Civil Rights Act.
This contentious issue becomes highly relevant when it comes to the workplace — where employees require unfettered access to facilities in which to change and use the restroom — and morally speaking, should have every right to do so without having their own conceptualization of their gender identity questioned.
The law not only disregards the needs and rights of a small and marginalized subpopulation within our nation, but it does so by holding steadfast to an old and outdated view on gender – as a static and fixed medical term referencing only physical attributes of an individual.
It completely ignores the complex emotional implications that comprise gender identity, and that make gender more of a fluid, gray-area issue, best measured on more of a spectrum-like basis.
Taken within the context of everything the LGBTQ community has been striving to communicate through efforts of organization and advocacy, North Carolina’s chosen interpretation of the law represents a disturbingly invalidating and closed stance on this delicate issue and the plight of the LGBTQ community.
The specifics of the clash occurred when Justice Department officials called for a revision to the statute that would incorporate the legally mandated protection from sex discrimination into its policy (i.e. Title VII); North Carolina argues that the LGBTQ community is not explicitly named — nor was the population intended protection – within Title VII’s traditional implications.
We can presumably agree that before the trans community emerged as an organized social movement in the political playing field, they were not specifically named in Chapter VII; however, it is also safe to say that the purpose of Chapter VII was designed to specifically prevent this type of debate, which has only arisen because discrimination on the basis of sex has occurred, and therefore protection was implied, if not specifically cited by the movement’s only recently determined name.
We encounter this conundrum time and time again, when a changing social climate necessarily calls our country’s policies into question, as it becomes apparent that an oversight has taken place — often due to these same issues of verbiage.
Changing verbiage, changing contexts, and changing times all necessitate the modern interpretation of governmental policy – and somewhere in the efforts to modernize our
understanding of what our Constitution represents, modern-day conservative forces would prefer to blatantly exclude an entire group of individuals, whose needs have become a source of international concern, rather than to address the underlying problem – which is that our conceptualization of gender itself has become outdated.
Who are we to rigidly uphold an old and outdated conceptualization of gender as a black-and-white issue? And what does it say about a government that is so fearfully attached to a strict interpretation of Chapter VII that it is willing to alienate and marginalize an already vulnerable population?
If a commitment to social justice is not enough of a motivation to do so, perhaps the billions of dollars North Carolina stands to lose in federal funding will be motivation enough for the state to make haste in creating policy that is aligned with our national values and federal laws.
In the meantime, it is worth our while to begin to ponder how to best define gender in inclusive and non-discriminatory terms that do not oversimplify this issue of growing social importance.
When it comes down to it – who do you want to be the determining authority on defining gender? Chances are, North Carolina’s state government would not be your first choice. It certainly wouldn’t be mine.
Shawn Sukumar is a criminal defense attorney in D.C. with Price Benowitz. Shawn received his J.D. at Emory University Law School, and has exclusively focused his practice defending clients facing criminal allegations, from serious felonies to drug charges and DUI defense.
Washington D.C. has now joined a handful of states in legalizing the possession of marijuana for personal use. The city’s voters were in favor of this legalization partly based on a growing dissatisfaction with high numbers of arrests in DC for minor drug offenses.
According to a 2013 study conducted by the American Civil Liberties Union, the District led the nation with the highest percentage of marijuana possession arrests per capita.
Legalizing marijuana possession for personal use means that adults 21 years and over can now legally possess up to two ounces and grow up to six marijuana plants for their own personal use. It is also legal to gift up to one ounce to another individual 21 years or older as long as nothing of value is received in exchange.
It is still illegal to publicly consume marijuana, sell marijuana, or possess marijuana with the intent to sell it. It is also illegal to possess or use it on federal property in any amount. You cannot grow it anywhere other than your own private property and it is illegal to drive under the influence of marijuana.
Although DC has become more lenient on marijuana use, being caught with more than what is considered recreational can still carry high penalties. For example, a person convicted for possessing more than one half pound of marijuana with the intent to distribute it faces up to five years in prison, a fine of up to $50,000, or both.
It is important to understand the new laws in place regarding the legal amounts of marijuana possession in DC. You can still be arrested, charged and convicted for certain marijuana-related offenses and the penalties depend upon the severity of the charges. Any marijuana charge can be a serious offense and carry significant consequences.
In addition, the D.C. laws do not change federal law, and individuals can still be arrested by federal agencies that patrol federal property in D.C., including the U.S. Park Police, Secret Service, and Capitol Police.
Nicholas Braswell is a criminal defense attorney in Richmond who recently left the Office of the Public Defender to join the ranks of Price Benowitz. Mr. Braswell handles a wide range of criminal defense matters, ranging from white collar allegations to serious felonies to DUI defense in the greater Richmond area.
On Wednesday, April 27, the Supreme Court will hear former Virginia Republican Governor Bob McDonnell’s appeal on his federal corruption conviction, in which he will claim that he did not violate Virginia law when he accepted over $177,000 in gifts from Star Scientific’s CEO Jonnie Williams, Jr.
Such gifts included a Rolex watch, about $20,000 in designer clothes for McDonnell’s wife, $15,000 for their daughter’s wedding, and several paid trips and golf outings.
According to Solicitor General Don Verrilli, McDonnell “solicited and secretly accepted personal benefits in exchange for ‘official acts’ that fall within the definition federal law has given that term for more than a century.”
In 2014, McDonnell and his wife were convicted on 11 counts of corruption, the decision being upheld by the Fourth US Circuit Court of Appeals in Richmond. His two-year prison sentence, as well as that of his wife, is currently on hold while the Supreme Court appeal proceeds.
The Supreme Court will also hear Mrs. McDonnell’s case at a later date, since her appeal is currently on hold, pending the result of her husband’s case.
In legal briefs, McDonnell has argued, “Close relationships between business leaders, lobbyists, and public officials are commonplace.” His argument also cites the Citizens United case of 2010, in which the Court endorsed “routine courtesies” between politicians and wealthy businesspeople.
The question the Court will have to decide on Wednesday is whether or not such behavior is illegal, or if it is simply a distasteful but acceptable norm of the relationship between politics and the wealthy.
The absence of Justice Antonin Scalia due to his death in February may have a negative impact on McDonnell’s case, considering the late Justice was a “strong voice for these types of issues,” according to one of McDonnell’s lawyers.
If the Supreme Court upholds McDonnell’s conviction, the ruling could have a major impact on clarifying bribery laws and serious repercussions for politicians and public officials.
By defining the difference between bribery and routine actions or courtesies to constituents, the Supreme Court will potentially put wide-reaching constraints on politician-constituent relationships.
Edward Tayter is a DUI and criminal defense attorney in Maryland, with an office in Howard County. Mr. Tayter is part of the criminal defense team at Price Benowitz, LLP, a law firm that also represents clients in probate, whistleblower, and immigration matters.
Thanks to a package of substantial criminal justice system reforms just passed by the Maryland legislature, certain types of offenders within the state will be able to work towards rehabilitation, rather than spend unduly long periods of time incarcerated.
Deemed “groundbreaking” by Baltimore County state Senator Bobby Zirkin, the initiatives are geared towards shrinking prison populations within the state and preserving resources better spent on treatment and recidivism prevention programming.
The aptly titled Justice Reinvestment Act serves a number of purposes, such as placing a greater number of low-level drug-related offenders into treatment programs, simplifying the process for earlier release of certain inmates, reducing potential incarceration times for those guilty of parole violations, facilitating greater opportunities for criminal record expungement and eliminating mandatory minimum sentencing for particular offense categories.
The road to passage of this legislation was not always a smooth one, with negotiations breaking down at least two times during the course of debate. Given the substantial nature of some of these changes and the effort to address a broad array of issues across the criminal justice landscape, it was necessary for legislators to spend a great deal of time working out the final details.
Though some have argued that the reforms tip too far in favor of convicted criminals, the legislation also toughens sentencing guidelines for those found guilty of second-degree murder or abuse that causes the death of a child. It establishes some anti-racketeering measures that ares likely to aid in the prosecution of gangs known to be involved in the distribution of illegal drugs.
Among the most notable elements of the legislation are:
- Increased likelihood of treatment, rather than incarceration, for low-level drug crimes
- Shifting of responsibility to state for ensuring prompt availability of treatment spaces to prevent long wait times in jail
- Easier route to parole for those convicted of non-violent theft, drug, and bad check crimes once 25 percent of their sentence has been served
- Elimination of mandatory minimum sentencing for drug dealing, false prescriptions, and manufacture of drugs
- Capping of maximum sentences for dealing, manufacturing, or fabricating prescriptions at 20 years for initial and second offenses, 25 for third offenses, 40 for fourth offenses
- Elimination of jail time for those guilty of driving on suspended license
- Geriatric parole eligibility reduced from 65 years to 60 years, provided no less than 15 years of sentence already served
- Minor violations of probation and parole will trigger minor sanctions before possibility of jail time, provided public safety is not deemed at risk
Though not without its critics, the change in thinking about the Maryland criminal justice system has secured wide support from both sides of the aisle, and it has been a priority of Governor Larry Hogan throughout his administration.
Hogan’s top criminal justice aide, Chris Shank, characterizes the legislation as a “sea change” in which government officials are increasingly attempting to be smarter on crime, rather than merely tougher on crime. The prior way of thinking, the argument goes, produced little more than exorbitant prison costs without a concomitant reduction in serious and violent offenses.
Kush Arora is a criminal defense attorney in Maryland. Mr. Arora handles cases at the state and federal level, and his practice ranges from sensitive misdemeanor cases to DUI defense to serious felony allegations. He is also part of Price Benowitz LLP’s White Collar Defense Practice Group.
Last year, the US Department of Justice announced a strategic change in how it will prosecute corporate crime in the Yates Memo. Instead of focusing mainly on corporate entities, it is aggressively pursuing individual executives as well – the specific people directly responsible for corporate malfeasance. And the DOJ isn’t alone. The Financial Crimes Enforcement Network (FinCEN) also recently stated an increased focus on personal liability.
Many believe the change came about primarily after the 2008 financial and housing crisis, which led to widespread public criticism of the Justice Department for being too soft on corporate executives.
Critics claimed even though federal prosecutors collected billions of dollars in fines from Wall Street banks and other corporations, they were much too easy on the executives themselves, whose very actions led to the financial system collapse and subsequent recession.
The policy states that if companies want credit for cooperating with investigators, they will need to turn over evidence of individual misconduct – i.e., name names – to help prosecutors collect evidence and build strong cases.
It was one of US Attorney General Loretta Lynch’s first major policy announcements when she took office in 2015 and was intended to show corporate boards there’s no protective shield against culpability for white collar crime.
In practice, however, prosecutors may find it’s harder than ever to convict individuals of financial fraud and other white collar crimes – particularly in light of a bill Congress introduced in November 2015 called the Criminal Code Improvement Act of 2015.
One of the bill’s provisions delves into the gray areas of intent and knowledge of the law, which are difficult to prove. It says that if the statutory language of the offense does not specify a mens rea requirement, then the prosecutors must show the crime was committed knowingly. In addition, if a reasonable person would not know or have reason to know the underlying conduct was unlawful, then prosecutors need to prove that the defendants knew or had reason to know of the unlawfulness of the conduct.
This is important because the “knowingly” standard is not easy to prove. In light of the Yates Memo and the DOJ’s focus on personal liability in criminal cases, this new bill would compound the major difficulties involved with seeking individual culpability in large corporate cases.
Demonstrating state of mind is always challenging, but it is especially so in complex financial and securities litigation where countless regulations, multi-layered financial scenarios, and corporate divisions play off each other.
C-level executives have a tendency to operate above mainstream business operations. They defend themselves by saying they were too far removed from day-to-day processes and procedures to know what was going on. Mid-level managers involved in day-to-day operations argue their actions were simply one small part of a boundless mechanism with unknown interdependencies and reactions.
And although the ignorance defense doesn’t normally work in court, in cases involving large companies it can make it very difficult for the government to find evidence of criminal intent. Put differently, it is hard to find criminal intent in individuals when the actions of a company are so heavily dispersed. Most often, there is no one person who has enough information to have criminal intent to commit a crime. Instead, the prosecutors are often left with evidence of recklessness and negligence.
The Justice Department opposes this bill because it will likely impede their goal of convicting more guilty individuals, as opposed to mainly corporate entities.
The DOJ has spent years investigating complex financial crimes with the sole intention of reaching settlements to impact corporate bottom lines, rather than building cases against executives to send them to jail. To obtain more individual convictions, federal prosecutors must work harder than ever to prove intent and knowledge.
If the proposed legislation passes, DOJ must fine-tune its investigative tactics and sharpen its prosecutorial skills to build successful cases.
Thomas Soldan is an experienced litigator and criminal defense attorney in Loudoun County who handles a range of criminal cases, including DUI, felony cases, and criminal speeding charges. Mr. Soldan works out of Price Benowitz LLP’s Virginia offices in Leesburg and Warrenton.
The District of Columbia and neighboring Prince Georges and Montgomery counties in Maryland are among a growing number of jurisdictions, local and nationwide, using digital cameras to enforce speed limits. According to the Insurance Institute for Highway Safety (IIHS), as of February 2016, 141 communities in the US have some level of speed camera law enforcement.
While advocates hail the benefits of improved highway safety, speed camera usage continues to be controversial. Civil liberty issues, potential conflicts of interest among contractors earning commissions, overall lack of program oversight, and the general belief jurisdictions are using them simply to generate revenue rather than protect citizens, are among the leading concerns.
Stoking the controversy is the fact that nearly as many state and local governments have enacted laws prohibiting camera usage or narrowly restricting how and where they can be used. Data from the Governors Highway Safety Association website shows that:
- 13 states have passed laws that prohibit speed cameras
- 28 states have no specific laws addressing speed cameras
- 2 states plus DC clearly allow speed cameras as outlined in legislation
- 7 states limit speed camera use by location or other conditions
The basic legal issues relate to due process and how speeding violations captured by a camera can be proven and/or citations delivered. Driver identification is a huge concern. Some jurisdictions, including D.C. and the nearby Maryland counties simply issue a ticket to the car’s registered owner regardless of who was driving. The registered owner is fully responsible for the ticket without any evidence he or she was the actual driver.
Camera critics also point out that when a police officer physically issues a ticket to a driver, the offender can question the officer about evidence both at the time of the incident and again in court. But this option is not available when tickets are automatically generated and mailed to a vehicle owner, and in reality, equipment failures and ambiguous results are fairly common.
A 2014 study issued by the D.C. Office of Inspector General found that tickets were frequently issued in the District even when vehicles could not be conclusively identified. The report went so far as to suggest the D.C. government was emphasizing ticket revenues over system accuracy and fairness as well as improved safety – a point hotly disputed by the Metropolitan Police Department and the D.C. City Council.
The good news is local and federal courts are keeping a close watch. Many motorists have successfully challenged camera citations on the basis of due process violations. In fact, the D.C. Department of Motor Vehicles reports that in FY 2013, judges dismissed more than 35 percent of the adjudicated photo-captured violations because of ambiguous evidence. And in Baltimore City in 2013, more than 6,000 tickets were voided due to lack of proof because a key equipment vendor stopped appearing in court to substantiate its evidence. This represented a major lack of oversight and control of the city’s speed camera program.
Virginia Attorney Thomas Soldan urges motorists and vehicle owners to understand their rights. “Luckily drivers here in Virginia do not have to deal with these issues, but in most traffic cases, courts will uphold speed camera tickets supported by clear cut evidence. Federal, state and local laws continue to be debated, and the definition of clear cut evidence continues to evolve, particularly in light of due process. In situations where the evidence is not clear, citizens should be able to assert their rights legitimately.”
Courts will continue to hear cases and make rulings. Drivers and vehicle owners should take note. Understand the issues, know your rights, and keep in mind a basic premise of our judicial system – innocent until proven guilty.
This column is written by D.C. Criminal Lawyer Jason Kalafat, an experienced attorney at Price Benowitz LLP in D.C. who handles complex DUI and serious felony cases. The attorneys at Price Benowitz also practice groups in Immigration, Personal Injury, and Trust & Estates law.
In March 2012, a special investigation by a federal judge concluded that two Justice Department prosecutors intentionally hid evidence in the 2008 case against Sen. Ted Stevens, then facing false-statements charges. He was convicted just before the 2008 election, losing his seat in the Senate.
Now, almost seven years later, according to the National Law Journal, “federal judges in Washington are considering a rule that describes in detail for the first time the government’s obligation to turn over evidence to defense lawyers.”
Federal prosecutors are legally required to provide information to the defense in criminal cases, even if the information is potentially favorable to the defense. However, it is up to each court and to individual judges to decide how to enforce this requirement.
On Wednesday Feb. 3, the U.S. District Court for the District of Columbia announced a proposed change to the local rules that would “set court-wide standards for what information prosecutors must disclose and when they must start producing that evidence to the defense.”
In defending the proposed change, the committee of judges and lawyers in D.C. from the prosecution and defense bar, who have been working on drafting the rule for the past year, cites the landmark case of Brady v. Maryland.
In 1963, the Supreme Court ruled in the Brady case that the government has a responsibility to disclose material evidence, which has the potential to change the outcome of a case, to the defense. The proposed D.C. rule would require prosecutors to more promptly turn information over to the defense by giving them a specific time frame for doing so.
This is an important step by the courts to memorialize this ethical burden on the prosecution. The criminal defense community is happy to see the courts stepping in. Implementing such a rule would benefit defense lawyers and prosecutors by helping the latter understand their responsibilities and obligations, making criminal cases proceed more fairly and smoothly.
In the past, the Department of Justice has opposed rules and legislation which attempted to address Brady v. Maryland, and has indicated that it opposes this new proposed D.C. rule.
Borderstan contributor and law firm sponsor Price Benowitz LLP