Unfortunately, during the course of my practice I have seen many sad incidents where criminal law collides with family law in an oftentimes violent way.

Here at Andalman & Flynn, we see many cases regarding this serious issue. The numbers vary, but according to the American Bar Association, and a study by the US Dept of Justice, “3 million women and 835,000 men are physically assaulted by an intimate partner annually in the United States.” http://www.ojp.usdoj.gov/nij/pubs-sum/183781.htm. More frighteningly, another US Dept of Justice study indicated that “In 2000, 1,247 women and 440 men were killed by an intimate partner.” http://www.ojp.usdoj.gov/bjs/pub/pdf/ipv01.pdf. There are both criminal and non criminal methods to control and stop domestic violence.

Criminal penalties may result if the victim chooses to file an Application for Statement of Charges. In Maryland, the Judge or Commissioner then reviews the Application to decide if there is probable cause to believe a crime has been committed. Thereafter, a warrant may be issued for the arrest of the alleged perpetrator. The least serious charge of Assault, Second Degree Assault, carries a max penalty of 10 years in jail and/or $2,500, and obviously, crimes committed in a domestic disturbance can be much more serious than simple assault.

The Maryland courts handle these types of cases another way when the victim pursues a civil remedy. This is done by filing a Request for a Protective Order or a Peace Order. The first Protective Order may be either Temporary or on an Interim basis, depending on who ordered it, but either way, that Order to stay away lasts only as long as it takes to have a Final Order Hearing. The Final Order Hearing is vitally important because of its impact on a potential divorce or criminal case that also may be pending. I recommend that all parties be represented by counsel at this hearing because the stakes can be so high.

Next, assuming a Final Order is put in place at the end of the hearing, criminal penalties then attach to that Order should that Order ever be violated. Orders are violated in many ways, including but not limited to, further abuse of the petitioner, threatening the petitioner, contacting  the petitioner, going to their work, etc. Should one be found guilty of violating the Final Order, for a first offense the max penalty is 90 days in jail and/or $1,000 fine, and for a second or subsequent offense the max penalty is one year in jail and/or $2,500 fine.   

Lastly, it’s worth mentioning that Final Orders typically last between 6 months and 1 year. There is a recently enacted Maryland law which enables Judges to make a Final Protective Order permanent. This is permitted if the Defendant in the Final Protective Order served 5 years stemming from the incident that was the subject of the Final Protective Order. This type of relief is reserved for the most egregious offenses and it was put in place to protect against subsequent abuse that sometimes occurs after the Order expires.

For more information about domestic violence, protective orders and peace orders, see the article at  http://www.andalmanflynn.com/library/Peace_Orders_and_Protective_Order.pdf.

Peter Casciano
Attorney at Law
Andalman & Flynn, P.C.
8601 Georgia Avenue, Suite 604
Silver Spring, MD 20910
(301) 563-6685 phone
(301) 563-6681 fax
pcasciano@a-f.net
www.andalmanflynn.com

As a “Master of the Bench” member of Montgomery County’s Inns of Court, I attended a presentation on “Drinking and Driving” last night. The speakers included a Montgomery County police officer who trains other officers in how to test a driver to see if he/she is under the influence of alcohol; two judges, and the State’s Attorney for Montgomery County. All of the speakers agreed that drivers should not assume that “just having two drinks” is safe because it really is the size of the drinks that matters most. Also during the presentation, the police officer showed by demonstrating on some of us attending the presentation that even individuals who do not blow .08 on a breathalyzer are physically influenced by a couple of drinks.

In Maryland, if a driver blows a .08 on a breathalyzer test, then he/she is statutorily presumed to “Driver under the Influence,” and if a driver blows even just a .07, then that driver is statutorily presumed to be guilty of the lesser offense of “Driving While Impaired.” Further, no longer does one have to blow a .02 before a police officer can have reasonable suspicion to believe that a driver is under the influence of alcohol; just an odor of alcohol is enough for a police officer to administer a field sobriety test on you.

Field Sobriety Tests by Montgomery County Police Officers routinely include the eye test of following a light with your eyes (called the “Horizontal Gaze Nystagmus test), the Walk and Turn test (walking on an invisible line); and the one leg stand for thirty seconds; and reciting the alphabet. According to the police officer at last night’s presentation, contrary to popular belief, Montgomery County Officers do not ask drivers to recite the alphabet backwards.

The laws in Maryland are becoming much stricter against drunk driving; for example a driver convicted of DWI or DUI is entitled to receive Probation before Judgment (“PBJ”) only once every ten years. When someone convicted of a crime (either by pleading guilty or through a trial) receives a “ PBJ” – then the driver receives no “points” against his/her driving record if the crime is a moving offense (i.e. speeding, DUI’s , reckless driving etc) and the guilty conviction is struck from the individual’s criminal record and stays off his/her criminal record if the terms of probation are succesfully completed. A PBJ is certainly a good thing to get !

Now, if the driver is a multiple DUI/DWI offender (and certainly if the driver already received a PBJ within the last ten years), then getting a “PBJ” is unlikely and a sentence in jail is very possible if that driver is convicted again of DUI/DWI. The good news is that in Montgomery County, and in other parts of Maryland, there are many alternative programs to sentencing and the driver’s attorney should certainly be aggressive and knowledgeable enough to know to ask for these alternative programs; such as mandatory attendance at MADD meetings or A/A meetings; ignition interlock device which requires the driver to breathe into the device before the car would start; home confinement; and/or mandatory participation in Drug Court.

Through my twenty-plus years of representing defendants in DWI/DUI cases, I have been very successful in helping many drunk drivers avoiding convictions and jail-time; and just as important if not more important, help those individuals conquer or at least control their never-ending battle with alcoholism by finding and recommending appropriate counselors and programs. Alcoholism is a very real and disabling disease; and not only affects the individual but everyone in that individual’s life.

Submitted by:  Mary Ellen Flynn, Esq.;  301-563-6685; meflynn@a-f.net

I represent many Defendants, including young people, when they get in trouble partly because they don’t really know the laws associated with driver’s licenses.

Here are some general rules regarding licensing in the State of Maryland:

You are eligible for a learner’s permit at 15 years, 9 months. If you apply for a learners permit and you are between 15 and 9 months and 16 years old, you must submit a copy of your school attendance record with your license application that shows less than 10 unexcused absences. What can a driver do with a learners permit? Short Answer: You can’t drive alone! Who can you drive with? A 21 year old who’s had their own license for 3 years and who isn’t sitting in the back seat. Lastly, holders of learners permits can take the driving test once they complete a driver education program and have had the Learners Permit for 6 months or its been 6 months from the last time that applicant was convicted of a moving violation.

An applicant can get a Provisional license at the minimum age of 16 years, 3 months, and a regular old license at 17 years, 9 months. A holder of a provisional license cannot drive unsupervised between midnight and 5am, with some exceptions for school and work. Also, provisional drivers have an added penalty for ANYONE in the car being caught without a seat belt on, so be aware. These restrictions end for a provisional driver when they reach age 18.

On the other end of the spectrum, if you are 70 years old, to obtain a driver’s license, you have to prove two things to the Motor Vehicle Administration (MVA):

1. that the applicant previously operated a motor vehicle in a satisfactory way, and

2. a doctor’s note stating that the applicant is both physically and mentally able to drive a car.

There you have a basic crash course on the convoluted restrictions associated with driver’s licenses. Lastly, I would like to point out that the State has just recently passed a law prohibiting the dreaded act of texting while driving. This issue has garnered much attention in the last year or so and different legislative bodies have dealt with it differently. To show how serious Great Britain is on this issue, they released a Public Service Announcement showing the risks: http://www.youtube.com/watch?v=JIqO2IBR8aY. I am serious, do not click through if you are sensitive to graphic material because this clip shows a particularly brutal car crash.

Maryland’s law prohibits sending a text message with a handheld device used to send an electronic messages via a short message service, wireless telephone service or electronic communication network while your car is in the travel portion of a roadway (moving or not). The law is new (effective October 1, 09) and hasn’t been tested in the appellate courts yet, but I believe its broad enough to cover texts, emails, twitter, and any other electronic post you can think of. Exceptions: texting 911 in an emergency and using a GPS. Penalty: $500 fine and conviction of misdemeanor.