Monday, March 25, 2013

Liars are always ready to take oaths.

Baltimore is no longer the set of "The Wire, " where fictional police (pronounced locally as "poh-leece") lie and manipulate their way to an arrest.  Or isn't it? On March 24, 2013, Justin George, of The Baltimore Sun, reported on the alleged police misconduct of a Baltimore City cop, Kendall Richburg.   And it is script-worthy, indeed. As a lawyer, I laugh only to keep from crying.

Mr. George chronicles the wrongful conviction of an alleged drug buyer convicted on Officer Richburg's lie about actually observing the "hand-to-hand" drug purchase. This story details some pretty awful police conduct, and it would be appalling enough, on its own, even without the full back story of Officer Richburg's misdeeds.

Tuesday, March 19, 2013

Arbitration clauses should not mean surrender.

Just about all the commercial contracts you sign have an arbitration clause. Where an arbitration clause resides in your contract, one or both parties may be prohibited from filing a lawsuit in the state of federal courts until the arbitration is completed. Or litigation may be prohibited completely, at any time.

The arbitration clause was once heralded as a means to limit legal fees and the cost of resolving disputes for all parties to a contract.  It was intended to streamline dispute resolution and put economically weaker parties on relatively equal footing with their deeper pocketed opponents. But the arbitration clause often operates to impose added cost and expense on the economically weaker party, only, by layering an additional stage of dispute resolution.

At worst, one party to your deal will insert a totally one-sided arbitration clause that severely limits your rights and remedies to arbitration, only, while leaving the more powerful party to choose court over arbitration. Imagine agreeing to play tennis against a stronger opponent, but only after conceding that your opponent is the only one permitted to appeal the line judge's decision on your serves and points. The one sided arbitration clause is just as bad. On February 26, 2013, the United States Court of Appeals for the Fourth Circuit applied Maryland contract law to strike down just such a one-sided arbitration clause.

Noohi v. Toll Brothers  involved a homebuyer's lawsuit against the homebuilder, and the homebuilder's attempt to throttle the lawsuit by asserting a very one-sided arbitration clause. Mr. and Mrs. Noohi had plunked down $77,000 as a down payment toward a house, to be built by Toll Brothers. But when the financing did not come through, they canceled the contract and requested return of their deposit.  Toll Brothers kept the money, and the Noohis sued.

Toll Brothers filed a motion in court to stop the case, and for an order forcing the homebuyers into binding arbitration. The arbitration clause was boilerplate that required the homebuyers to arbitrate any and all disputes with Toll Brothers.  The same arbitration clause granted Toll Brothers the freedom to bring it's disputes against the homebuyer directly to court or to arbitration, at Toll Brothers' sole election. Judge Richard Bennett denied the motion to force arbitration on the economically weaker homebuyers, declaring that the arbitration clause was "quite simply one-sided and onerous."

The appellate court agreed with Judge Bennett, while applying Maryland's law of contracts.  Quite simply, a legal and enforceable arbitration clause requires "mutuality of consideration." That means that both sides must give something in exchange for the other side's promises to arbitrate.  And most importantly, the court acknowledged and accepted Maryland's requirement that an arbitration clause operates like a contract-within-a-contract.  It must be supported by it's own consideration, independent of the consideration for the overall contract.

A good example of this is the employment contract that requires an employee to accept the arbitration policy of the employer, while the employer retains sole discretion to make unilateral changes to that policy after the employee starts working. In this example, the exchange of consideration for employment is illusory.  The employee cannot count on the arbitration policy to stay the same even for one minute after starting on the job. The employer has surrendered nothing to the employee, and has not agreed to maintain one certain policy of arbitration. In this example, the exchange of promises that create the overall employer/employee relationship are not consideration for the contract to arbitrate placed within the employmente contract.

What's this mean for you and your business? Don't immediately accept that the arbitration clause in your contract is enforceable against you to limit your remedies against the other side for breach. When a dispute arises, the deal must be examined to determine whether there is mutuality of consideration for the arbitration clause, as if it stands alone, separate and apart from the contract in which it is buried.

Consider this an equalizer for the party with not-so-deep pockets. After all, you signed a contract, not an instrument of surrender.

Monday, March 18, 2013

Should I refuse a breathalyzer or field sobriety test?

     You messed up.  You were driving a vehicle after “one or two drinks” (you’re not fooling anyone) and you’re over the legal limit. You know it.  Now you’re sitting on the shoulder during those terrifying moments between the initial traffic stop, and the dreaded “license and registration.”

       You’re wondering, “If the cops ask me to take a breathalyzer or a field sobriety test [Editor’s note: they will], should I comply, or refuse?”  You’re at a cross roads.  But unlike the trespassing hippie from the Frost poem that doesn’t have the benefit of exploring both paths, I’ve sketched the road map below:

The well trodden path
       In the first scenario, you abide by your parents’ directive that “honesty is always the best course of action.”  When the police officer asks “have you been drinking” you admit that you have.  You submit to the breathalyzer and the field sobriety tests and fail with flying colors.  You get booked for DUI:

  •  On the criminal side, your statements admitting your prior drinking are used as evidence against you.  The failed breathalyzer and field sobriety tests are also used as evidence against you.  You are found guilty of DUI and receive a sentence (up to a year for a first offense).

  • On the administrative side, the MVA suspends your license either 45 (if you blew between a .08 and a .15) or 90 (.15+) days.  The penalties double for subsequent offenses.

The road less traveled
       In the second scenario, you remember what the attorney from the Wire said to his clients: “shut up.”  You don’t admit anything to the police, and refuse the breathalyzer and the field sobriety test.  You get booked for DUI.

  •   On the criminal side, there are incriminating statements the State’s Attorney can offer against you.  There are no failed breathalyzer or field sobriety tests.  Your attorney has a fighting chance and wins you an acquittal.

  •  On the administrative side, the MVA suspends your license for 120 days.  The penalty increases to a year for subsequent offenses.

Which do I choose?
       The first option results in a shorter suspension of your license, but dramatically increases your chances of being found guilty of DUI (and even if you get Probation Before Judgment—it cannot be expunged from your record).  If you are on probation, a “guilty” disposition, even if it does not result in jail time, will constitute a violation of your probation, and could result in you “backing up” time.  If you’ve already been convicted of DUI or DWI, penalties for repeat offenders increase substantially.

       The second option results in a longer suspension of your license, but dramatically increases your chances of beating the charge of DUI (and charges that result in a “not guilty,” “nolle prosequi” or “stet” are eligible for expungement).

       Don’t take this post as a blessing to pull a Hasselhoff and get behind the seat of a car.  Drinking and driving is dangerous and illegal.  Don’t do it (you've noticed that both options result in you being booked and charged).  But if you do, remember your options.

Thursday, March 14, 2013

Handguns, self-defense, and Maryland's interpretation of the Second Amendment

            In 2008, Judge Antonin Scalia, speaking for a fractured Supreme Court, in District of Columbia v. Heller, 554 U.S. 570, galvanized the right to bear handguns (for “traditional lawful purposes”) among the class of civil liberties protected by the Constitution.  Yay!  The decision also recognized that the “inherent right of self-defense” is central to the Second Amendment.  Yay!

            You want to defend yourself, too.  And your desire to defend yourself does not decrease when you leave your home (in fact, depending on the neighborhoods through which you must travel, that desire may increase).  So keep a handgun in the glove compartment of your car, under the driver’s seat, or tucked in your waistband, right?  After all, the Constitution protects the “inherent right of self defense” and the right to bear handguns for that purpose, right?

            You’ll have to join the legions of Constitutional scholars currently serving time if you think so.

            Maryland, like many States of the Union, view the carrying of weapons in public with high dudgeon.  If you “wear, carry, or transport” a handgun on your person or in your vehicle, you are subject to a minimum penalty of 30 days in jail (if you have previously been convicted of weapons crimes, the minimum penalty increases to two years).  Md. Criminal Law Code Ann. §4-203.  There are exceptions for police and military folks—but if you’re reading this—you’re likely neither of those.

            If you’re going to carry a handgun outside your home, you must get a permit.  Md. Public Safety Code Ann. §5-303.  In March, 2012, a federal court judge found that Maryland’s law requiring applicants to show a “good and substantial reason” as a prerequisite to obtaining a permit violated the Second Amendment.  That decision was appealed to the Fourth Circuit, and arguments were heard in October 2012, but the requirement remains in place, pending the decision of the appellate court.

            Do yourself a favor.  Before you celebrate your civil liberties by toting a handgun outside your home, get yourself a permit.

Expungement in Maryland- Wiping your slate clean.

            Every time you are arrested or charged with a crime, it is recorded in the public records.  Even if you were never charged, the charges were dropped (or “nolle prossed”), or you were found “not guilty,” the records remain.
            Potential employers, neighbors, or anyone with a wandering curiosity can punch your name into the Maryland Case Search and see your record of arrests/charges.  Although you were never found guilty by a judge or a jury, the court of public opinion is not nearly as forgiving (remember, O.J. was acquitted, but we all remember how that went).

            Expungement is a mechanism that wipes away all stuff that didn’t “stick.”  The following cases are eligible for expungement: 

  •  You were found “not guilty”
  • Your charges were dismissed, or the State declined to prosecute (entered a "nolle prosequi")
  • Your case was placed on the inactive ("stet") docket
  • You were granted a full pardon by the Governor (somebody's got important friends, eh?)
  • You were given probation before judgment (except for DUI related offenses)

How do I do it?
For arrests:  If you were arrested prior to October 1, 2007, you must request an “Investigative Release Form” from the agency/department that arrested you.  If you were arrested after October 1, 2007, the records of your arrest are automatically expunged after 60 days.

For criminal charges:  Expungement requires the submission of a “petition for expungement” found at The Maryland Judiciary Website.  The fee is $30.

When do I file?
        If you were found not guilty, your charges were dismissed, or the State entered a nolle prosequi, you are eligible for expungement immediately, provided you file a general waiver and release.  Otherwise, you must wait 3 years. (The waiver and release gives up your right to sue the State for your wrongful arrest, detention, or prosecution—the applicable statute of limitations is three years).

       If you were given a probation before judgment, you are eligible for expungement 3 years after the judgment was entered, or the probation was completed, whichever is later.

       If your case was placed on the “stet” docket, you must wait three years to file for an expungement.

       Need help? Call me.