CAN A DUI CONVICTION PREVENT MY CITIZENSHIP?

We had come to realize that receiving a ticket for drinking and driving creates stress and inconvenience should we get convicted or receive probation before judgment for this offense. This problem is now compounded if you are not an American citizen!

While it is still possible to become a citizen with a DUI charge, you will be required to prove to ICE that you are still a person with “good moral character”. Normally, if the charge does not have intent or maliciousness as one of the elements of the charge , then the charge will not be considered a crime involving “ moral turpitude.” For citizenship purposes, ICE appears to be focused on whether you knew you violating the law when you engaged in the drinking and driving act. The Maryland drinking driving law does not contain any references to evil intent or to cause harm or injury to anyone or to engage in reckless behavior. So, it is not likely a crime of moral turpitude for citizenship purposes.

“Can I Get Citizenship with a DUI or a DWI Conviction”

In her excellent article on this topic, “Can I Get Citizenship with a DUI or a DWI Conviction”, Danielle Nelisse, Senior Immigration Attorney writes, “having a dui does not usually prohibit USA citizenship unless there was bodily injury to someone else.”

However, while the crime itself may not represent bad moral character, being on probation is considered bad moral character. The fact that a person is under supervision of the court suggests to the ICE that his “bad” behavior requires ongoing involvement by the court. Nelisse writes that in “many states a person can ask a criminal court judge to terminate their probation early so that they are off probation by the time of their citizenship interview. The naturalization applicant should admit responsibility for the DUI conviction and be ready to explain. that he is not a habitual drunk ( another ground of disqualification for citizenship) and has changed his life for the better.”

Whether you a citizen or not, obtaining a good traffic defense lawyer for your traffic charges and a good immigration lawyer if you are not a citizen if you are facing serious traffic charges always makes sense.

“Can I Get Citizenship with a DUI or a DWI conviction? Reprinted with permission from the author Danielle Nelisse, Senior Immigration Attorney. See: https://immigrationworkvisa.wordpress.com

If you are charged with a felony in the State of Maryland, the general rule implies that you are facing at least one year of potential jail time for the charge.  Misdemeanor charges usually carrying a  maximum in jail of one year or less.

This was the general rule before the Maryland legislature started to enter the field of criminal law. Now, if you are charged with a crime you must research the crime to determine whether the law is classified as a felony or a misdemeanor!

More Jail for a Misdemeanor than a Felony?

Surprisingly some misdemeanors carrying longer potential jail sentences than felonies do.  For example, the charge of 2nd degree assault carries up to 10 years in jail while possession of marijuana/heroin and other substances with intent to distribute, is a felony, but carries a maximum in jail of only 5 years!

While there is no direct path, which clearly differentiates a felony from a misdemeanor, the general rule is that felonies are classified as more serious crimes than misdemeanors.

The classification of a crime as either a misdemeanor vs. a felony is important for several reasons:

1. Felonies may have greater consequences for immigration purposes;
2. Most felony charges in Maryland must be tried in the Circuit (more serious) Court;
3. Conviction of a felony charge may disqualify you from serving on a jury;
4. Conviction of a felony may also prevent you from……..

-being hired for government jobs:

– eligibility for receiving public housing;

– serving as a police officer or other law enforcement jobs;

– being a lawyer;

– receiving social security benefits;

– voting

Examples of Felonies are:

• Burglary

• Weapons offenses

• Most sex crimes

• Kidnapping

• Murder

• Vehicular Homicide

Examples of Misdemeanors:

• Petty theft

• Assault in the second degree

• Violation of a protective/peace order

• Possession of drugs

Felony Statutes of Limitations

Statues of limitations consist of rules which prohibit the State of Maryland from instituting criminal charges against someone if the crime was committed beyond the stated period of time for initiating the charges.

There is no general statute of limitations for felonies in Maryland.  There may be limitations periods for select individual offenses.

Murder, manslaughter, or unlawful homicide: no limit

Misdemeanors in general: punishment under one year have a one-year statute of limitations;

Misdemeanors punishable by imprisonment over one year: no limit

Welfare offenses: within three years

For a list a some others with limitations periods, please examine the Maryland Courts and Judicial Proceeding Article § 5-106.

Protective and Peace Orders- Maryland Law Provides for a Cooling off Period Between the Parties

Whether you’re the person filing for a protective order (Petitioner) or the person against whom the Protective Order is filed (Respondent), Maryland law gives the parties a period of up to six months to decide whether to seek a final protective order or to dismiss the case, if they choose to.

It is fairly simple and straightforward. When the Petitioner first files for a protective order before a judge, the court enters a temporary protective order (TPO). The TPO usually lasts for approximately a week at which time the court holds the final hearing to decide whether to enter a Final Protective Order (FPO), which can last for up to one year.

However, if the parties are in agreement because they would like to take more time to decide whether they can reach a compromise without having to undertake a hearing for a FPO, the court can extend the TPO for up to 6 months for “other good cause” under §4-505 (c)of the Maryland Family Law Article.

This window often serves as a golden opportunity for the parties to enter into discussions to attempt to settle some of their outstanding differences, like child support (emergency family maintenance), marital counseling, financial issues, among others, while the case is still pending, but not finalized.  If things do not work out between them, the petitioner still enjoys the protections of a temporary stay away order until the final protective order hearing. If things work out, then the petitioner has the right to ask the court to dismiss the protective order case. The dismissal would then remove the case from Maryland court’s public database- “Maryland Judiciary Casesearch”.

Similarly, a court can extend a Temporary Peace Order for up to 30 days for “other good cause” which can serve as a “cooling off period” for people in a dispute who are not related to each other e.g., neighbors.

Extending Temporary Protective Orders and Temporary Peace Orders are rights possessed by many, but asserted by few, simply because their existence may not be widely known by protective / peace order lawyers.

With legalization of marijuana in places like Colorado and its decriminalization elsewhere, more marijuana is now being shipped through the U.S. mail than in recent years, according to the U.S. Postal Inspection Service, whose seizures of marijuana parcels have increased by more than 400 percent since 2007. Traffickers use commonplace objects to conceal the drugs. In fact, traffickers are using soup and paints cans, trash receptacles and other products to conceal the shipments. Drug smugglers have also recently used shipments of frozen goat meat, salt and pepper shakers, jukeboxes, garden hoses, bras, wigs and even a live dog as places of concealment.

In turn, the Postal Service has been forced to accelerate their detection efforts to try to gain ground on the drug industry, which seems to possess a ready supply of marijuana to keep up with the country’s need to smoke it.

The actual street value depends upon demand, which differs in various geographic locations.

Recently, the process gave rise to arrest 4 men on drug traffic charges in Maryland. The four allegedly had large shipments of marijuana sent from California and Oregon. These parcels of varying weight were sent to various locations in Maryland.  These parcels amounted to 85 pounds over a three-month period.

Maryland has enacted a Drug Kingpin law which provides for a mandatory 5 years in prison for someone convicted of distribution 50 pounds or more of marijuana or 448 grams of cocaine. The police can add the amount of the shipments together if they were shipped within a 90-day period. In addition, someone convicted 4 times for this offense must serve 40 years in jail!

The creation of body cameras has added a new and helpful additional weapon to law enforcement as well as criminal defense work. No longer will any of us have to rely solely upon witness accounts of criminal activity. Body cameras could amass great treasure troves of information for protective and peace order cases where police are called to investigate reports of criminal activity.

In Montgomery County, Maryland, for example, a county police department launched the body camera pilot program over the summer. Police said last month that since July, more than 4,700 recordings of police interactions have been recorded by the 76 officers participating in the pilot.

The use of body cameras by police must track the strictures of the Maryland Wiretapping and Electronic Surveillance Statute. This law is found in Maryland Courts and Judicial Proceeding Article, section 10-401.This law prohibits the recording of the audio (of conversations) without the prior consent of both parties to the conversation.

However the law establishes an exception where law enforcement investigates the commission of anyone of number of crimes which includes murder, kidnapping rape and theft above $10,000.00 In these cases, the police do not need to obtain consent of both parties.

For now, the placing of body cameras will become more common as time goes by. Along with the proliferation of these devices, governments will be required to enact regulations governing their use by police. Issues dealing with under what circumstances for example the police may turn off these cameras or block out the sound leaving only the video images have yet to be settled.

In the meantime, lawyers defending people charged with crimes and people involved in protective and peace orders, gain the advantage of live film footage from events which up to now have been left only to the memories of those present at the scene.

You should give some thought to your decision of hiring a lawyer for your criminal or DUI or DWI case.  

1. Georgraphically convenient- if your case is filed in Montgomery County, Maryland, for example, do you want a Rockville criminal lawyer or Rockville traffic lawyer? Or is the location of your attorney’s office less important to you than some of the other considerations in selecting him or her.
2. Do you want to hire a lawyer from a small or large firm?  If you hire a lawyer from a large firm, will the lawyer with whom you meet task other lawyers or paralegals to work on your case.
3. Do You Feel Comfortable talking to your lawyer? You will have to share private information with your attorney. There may be intimate details that are critical to the case and omitting them can have an effect on the outcome of your case. Hiring someone that you feel comfortable around is going to make your traffic or criminal case easier for you.
4. How long have they practiced law? You’ll want to know about the lawyer’s expertise and whether the lawyer is a veteran or beginner attorney, for instance.
5. What type of cases do you generally handle? What percentage of your practice is devoted to traffic or criminal law You’ll also want to know about a lawyer’s expertise and how much of the attorney’s practice is devoted to the topic area your legal issue falls within.
6.  Who is your typical client? This is an important, but often-overlooked question. For example, if you are an individual with a particular legal problem, but the attorney your meeting with represents only corporations; this may not be the best lawyer for you.

7. How many cases have you represented that were similar to mine? Now is not the time to act shy. Feel free to ask about the attorney’s track record, such as the number of cases won or settled, for example.
8. Other than a law degree, what kind of special training or knowledge do you have that might apply in my situation? Some cases, like DUI and patent cases, require specialized training and knowledge for effective representation. Be sure to inquire whether your case fits into that category.
9.  Does your attorney charge a flat fee (one fee regardless of the time involved) or an hourly fee, and what are your attorney’s fees and costs, and how are they billed? Will paralegals or legal assistants handle a portion or all of my case? If so, ask about reduced costs.
10. What is your approach or philosophy to winning or representing a case? This can be important in two ways. First, if you are seeking an amicable divorce, for example, but the attorney is known to “go for the kill” in divorce cases, the attorney may not be the right one for you. Or do you want someone who can be aggressive but can also handle your case in a diplomatic manner until he or she needs to change the tone of his or her representation?
11. Are there others ways for solving my legal problem? Ask the professional whether there are any alternatives for solving your legal problem, such as through arbitration or some other out-of-court arrangement. A good attorney will generally inform you if your case can be handled through other less expensive and time consuming means.
12. How will you let me know what’s happening with my case? Communication is key when working with a lawyer. Ask the lawyer how often and under what circumstances you will hear from him or her. You’ll want to know how your case is coming along and about other important dates.
13. What is the likely outcome in my case? It is fair to ask the attorney whether you have a good chance of winning your case. You are not looking for the “right” answer, just an honest one. For instance, if you’re facing an uphill battle in, let’s say, a difficult criminal case you’ll want to know up front from the attorney so you can prepare yourself for what lies ahead.

While the answers to questions you ask your lawyer will vary widely, it is important to keep in mind that nothing should be taken as a guarantee. Instead, these questions should give you some general knowledge of a specific lawyer’s experience and skill-level, and whether the lawyer is a good fit for you.

On June 23, 2016, the Supreme Court decided the case of Birchfield v. North Dakota. As we described in our previous blog on criminal law, the Court in Birchfield took up the issue of whether under the United States Constitution, a state can punish someone by suspending their right to drive simply because they refused to take a blood or breath. Emdenlaw attended the oral argument for the case before the U.S. Supreme Court along with other Rockville criminal law attorneys.

Many of you already know that laws (Implied Consent Laws) exist in every state and federal territory; these laws generally say that, should a driver be stopped by the police on suspicion of driving while under the influence of drugs or alcohol, he is deemed to have consented to the testing of his blood alcohol content (BAC) by breath or blood simply by driving in that state in the first place

If the driver nonetheless refuses to submit to testing, he is punished with administrative penalties, such as the suspension of his driver’s license for a period of time. However some states, such as Minnesota and North Dakota as detailed in Birchfield, have gone a step further and make it a crime simply to refuse to take the test. Birchfield attempts to balance the states’ interest in ending drunk driving, and the individual’s 4th Amendment right to be free of the government’s warrantless searches. Maryland makes it a crime to refuse only if you are convicted of the underlying DUI.

The Supreme Court ultimately decided that a warrantless breath test is permitted while a warrantless blood test is not. They wrote: “having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great. … We reach a different conclusion with respect to blood tests. Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test.”

To explain its decision, the Court brought in the well-established legal doctrine known as Search Incident to Arrest (read about this doctrine and other search and seizure basics in our article). This doctrine holds that once police lawfully arrest a person, they may search him and his immediate surroundings for two reasons: (1) to confiscate any weapons, thereby ensuring officer safety, and (2) to prevent the loss or destruction of evidence. In Birchfield the Court ruled that while the arrestee has no control over his BAC, the natural lessening  of alcohol in the blood over time requires the need for police to the preserve evidence of recent alcohol or drug use by using a fast means to collect breath or blood test results.

The Court held that there is a big difference between one’s right to privacy over a breath test and a blood test. A breath test requires minimal intrusion and “is not an experience that is likely to cause any great enhancement in the embarrassment that is inherent in any arrest.”

Since a blood test,contains and has the potential to reveal, much more personal information than does a breath sample, it requires either a warrant, or consent of the arrestee, or the presence of emergency circumstances.

Practically speaking, this means that states may make it a crime for a driver to  refuse to submit to breath test, but may not do the same for a blood test.  This may have some effect on the use of blood tests going forward, particularly when it comes to driving while under the influence of drugs or, taking drugs in combination with alcohol, cases. It will not change the cops’ use of breath tests.

Finally, the Court stated that a breath test is unintrusive, especially when compared with a blood test or other tests, such as a cheek swab, because “no sample of anything is left in the possession of the police.” This may or may not be true given the ability of the police to use GPS tracking without a warrant.

The US. Supreme Court only takes cases of national significance and its ruling has a direct effect on the criminal laws in Maryland.

With the pervasiveness of cell phones, police are using GPS coordinates for cell phone tracking and to track the location of crime suspects. However, in their zeal to make arrests, the police have been secretly and illegally using high tech equipment to locate suspects in a wide range of cases, including murder, robbery, and drug-related offences. (more…)

Did you know that if you are charged with a crime, the outcome of your case may have a direct bearing on your ability to practice your profession, if your profession requires that you possess a professional license in Maryland? (more…)

Using a federal law known as the implied consent law, police are getting around the search warrant requirement by coercing suspects into consenting to a blood test when they are charged with violating DUI laws on federal property: something police may find to be faster and easier than obtaining a warrant. “Implied consent laws” state that you have already consented to the police taking a sample and conducting a chemical test of your breath, blood, or urine if you are arrested for suspected drunk driving, and every state in the U.S. has some form of this law on the books. (more…)