Monday, December 8, 2014

LEAD PAINT POISONING DEFENSE (LPPD): Maryland Lead Defense Attorney

www.CharlesJeromeWare.com.  "Here to make a difference."
Ross v. Hous. Auth. of Baltimore City, 430 Md. 648, 63 A.3d 1 (2013).
The Maryland Court of Appeals has held that, while Plaintiff’s medical expert was properly excluded as an expert as to the “source” of the Plaintiff’s lead exposure, the exclusion of that testimony did not preclude the Plaintiff from establishing the causal link by circumstantial evidence at trial.

To prove that the Defendant’s subject premises was a “substantial factor,” and therefore caused the Plaintiff’s injuries resulting from lead exposure, the premises (1) must have been a source of the Plaintiff’s exposure to lead, (2) the exposure must have contributed to the elevated blood lead levels, and (3) the associated increase in blood lead levels must have been substantial enough to contribute to the Plaintiff’s injuries.

The Court held that an expert is not necessary in order to establish prong (1), but that expert testimony might be essential in proving prongs (2) and (3).

The Court of Appeals remanded the case back to the circuit court on the basis that the fact-finder could infer from the evidence that lead exposure at the subject premises was a substantial contributing factor to the Plaintiff’s blood lead levels without the testimony of a causation expert.
[Attorney Charles Jerome Ware is a nationally-respected, Maryland-based, lead paint poisoning defense attorney.  For questions or an initial courtesy consultation, contact Attorney Ware at (410) 720-6129 or (410) 730-5016; or email him at charlesjeromeware@msn.com]

THE "GRAND JURY" AND "THE HAM SANDWICH": MARYLAND TRIAL ATTORNEY SPEAKS

www.CharlesJeromeWare.com.  "Here to make a difference."
I heard the phrase many years ago when I was a first-year law student.  I have heard it, as well as used it myself, over the many years since law school.  The popular phrase among lawyers is this: "The grand jury can indict a ham sandwich."
Though obviously exaggerated, the phrase is not far from being true.  The grand jury is a secret group of people called upon to make a very important decision who are controlled by the prosecution.  The decision they are called upon to make is whether a person will be officially charged (indicted) for allegedly committing a crime.
By its very secret and insular nature, the grand jury can be an extremely subjective body of decision makers.  Both bad and good decisions come out of grand juries every day in the United States. 
Technically speaking, a grand jury is a legal body that is empowered to conduct official proceedings to investigate potential criminal conduct and to determine whether criminal charges should be brought. A grand jury may compel the production of documents and may compel the sworn testimony of witnesses to appear before it. A grand jury is separate from the courts, which do not preside over its functioning.
The Fifth Amendment to the US Constitution provides "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger..."
The United States is virtually the only country that retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing. Grand juries perform both accusatory and investigatory functions. The investigatory functions of the grand jury include obtaining and reviewing documents and other evidence and hearing the sworn testimony of witnesses that appear before it. The grand jury's accusatory function is to determine whether or not there is probable cause to believe that one or more persons committed a certain offense within the venue of the district court.
The "grand jury" in the United States is composed of 12 to 23 citizens
[see, U.S. v. Williams, Jr., 112 S. Ct. 1735, 504 U.S. 36 (1992); "State Grand Juries," Susan Brenner and Lori Shaw, Univ. of Dayton School of Law (2003); "Frequently Asked Questions About the Grand Jury System," American Bar Association (ABA), http://www.aba-now.org (2010)]
www.CharlesJeromeWare.com. "Here to make a difference." We can help you. Guaranteed.
Among his numerous other legal awards and honors such as "America's Best Attorneys and Counselors", U.S. Super Lawyer, "Top Lawyers in America", Top Attorneys and Counselors in the U.S., "Top Lawyers in Maryland", and winner of the national "Charles Hamilton Houston Award for Outstanding Litigation", premier criminal defense attorney Charles Ware is recognized and ranked by hi many satisfied clients as well as his legal peers as "One of the 10 BEST DUI and DWI Attorneys in the State of Maryland," as confirmed from research, surveys and other investigation by The American Institute of DUI and DWI Attorneys [AIDUIA] --- a respected national organization of trial lawyers.
Attorney Ware is also the founder and senior partner of the Maryland-based national business, criminal defense and civil trial law firm Charles Jerome Ware, Attorneys & Counselors, LLC. For an initial courtesy consultation, call Mr. Ware at (410) 730-5016 or (410) 720-6129.

UNDERSTANDING MARYLAND DUI & DWI LAWS

Maryland drunk driving laws are can be complicated and complex. There are multiple charges that fall under the umbrella of drunk driving in Maryland, and there are different penalties for each charge. The two main charges are known as driving under the influence (DUI) and driving while impaired or operating while impaired (DWI or OWI) in Maryland.

A. Maryland Drunk Driving Laws: DUI Versus DWI

Under Maryland drunk driving laws, a distinction is made between being over the legal blood-alcohol limit and driving while impaired by alcohol.
(1) Driving while impaired (DWI) is considered a lesser offense than driving under the influence (DUI), and thus the penalties for DWI are less severe than those for DUI.
(2) You may be arrested and charged with a DUI in Maryland if, via chemical testing, a police officer determines that your blood-alcohol content is .08 percent or higher. This is the legal limit in Maryland and in just about every other state in the U.S.
(3) To receive the lesser charge of a DWI in Maryland, your blood-alcohol content must fall between .07 and .08 percent. Once again, this will be determined through chemical testing.

B. Suspicion of Drinking and Driving in Maryland

(1) Under Maryland drunk driving laws, a police officer may pull you over on suspicion of either a DUI or DWI for a number of reasons.
(2) One of the most common reasons an officer may pull you over is because you committed a traffic violation. Examples of traffic violations include:
  • Driving through a red light
  • Failing to stop at a stop sign
  • Driving with your headlights off at night
  • Speeding
  • Driving in two lanes at once
(3) A police officer may also pull you over even if you are not breaking a traffic law. If your driving appears erratic, that is reason enough for an officer to investigate further. Examples of erratic driving behavior include:
  • Weaving in and out of a lane
  • Driving too slowly
  • Hesitating before passing through a green light
(4) Once the officer has pulled you over, he or she may try to gauge whether you are intoxicated by observing your behavior. Alcohol on your breath, slurred speech, and bloodshot eyes are all considered and taken as signs of possible intoxication.

C. Field Sobriety and Breathalyzer Tests

(1) If, after observing you up close, the officer still suspects you of being intoxicated, he or she may ask you to step out of the vehicle and submit to field sobriety tests.
(2) Field sobriety testing is used by Maryland police to determine whether someone is probably drunk. Possible field sobriety tests that an officer might use in a Maryland drunk driving incident include:
  • Saying the alphabet
  • Standing on one leg
  • Walking in a straight line
  • Following a moving object with your eyes without moving your head
(3) The officer may also seek to administer a breathalyzer test. A breathalyzer is a device that allegedly can gauge blood-alcohol content by detecting trace amounts of alcohol in a person's breath.

D. Refusing Chemical TestingCaveat Emptor!

(1) Under Maryland drunk driving law, if you refuse to undergo chemical testing, including a breathalyzer test, you may be subject to some stiff administrative penalties.
(2) For example, you may have your driver's license immediately suspended for 120 days for a first offense. After that, you could have your license suspended for one year, just for refusing a breathalyzer test.
(3) Maryland is one of a handful of states that does allow you to have an attorney present while taking a chemical test to determine blood-alcohol content. Once arrested by police, you will have the constitutional right to a DWI attorney. As long as your lawyer can appear within two hours of your arrest, you can delay your chemical testing until your attorney arrives.
(4) If you refuse to submit to field sobriety testing, the officer has the right to arrest you on the spot on suspicion of driving drunk or impaired.
[see all DUI and DWI blogs of Charles Jerome Ware on the Internet; Maryland Code Annotated]
ABOUT DEFENSE ATTORNEY CHARLES WARE
www.CharlesJeromeWare.com. "Here to make a difference." We can help you. Guaranteed.
Among his numerous other legal awards and honors such as "America's Best Attorneys and Counselors", U.S. Super Lawyer, "Top Lawyers in America", Top Attorneys and Counselors in the U.S., "Top Lawyers in Maryland", and winner of the national "Charles Hamilton Houston Award for Outstanding Litigation", premier criminal defense attorney Charles Ware is recognized and ranked by hi many satisfied clients as well as his legal peers as "One of the 10 BEST DUI and DWI Attorneys in the State of Maryland," as confirmed from research, surveys and other investigation by The American Institute of DUI and DWI Attorneys [AIDUIA] --- a respected national organization of trial lawyers.
Attorney Ware is also the founder and senior partner of the Maryland-based national business, criminal defense and civil trial law firm Charles Jerome Ware, Attorneys & Counselors, LLC. For an initial courtesy consultation, call Mr. Ware at (410) 730-5016 or (410) 720-6129.

NO GUARANTEES: GRANDPARENT RIGHTS IN MARYLAND

www.CharlesJeromeWare.com.  "Here to make a difference."
[The information provided herein is not designed nor intended to be legal advice]
The issue of grandparents rights comes up frequently in my law practice.
Grandparent visitation rights are not guaranteed nor assured in Maryland.  The "best interest of the child" is the standard legal guide here.
The visitation rights of grandparents are written in Maryland law and can be found in the Maryland Annotated Code, Family Law Article §9-102.  The statute was last amended in 1993, and now reads as follows:
 "An Equity Court may:
  1. consider a Petition for reasonable visitation of a grandchild by a grandparent; and
  2. if the Court finds it to be in the best interest of the child, grant visitation rights to grandparent." [MD Code Family Law § 9-102]
However, a grandparent is unlikely to be successful petitioning for visitation over the objection of the parents unless the grandparent is able to show that the parent is unfit or exceptional circumstances exist to indicate that the lack of grandparent visitation will have a harmful effect upon the child who is the subject of the petition. [Koshko v. Haining, 398 Md. 404, 921 A.2d 171 (2007)].

Case Rulings

As in all visitation cases, the court will always consider the best interest of the child in deciding whether to grant visitation. Generally, the court will honor the wishes of the custodial parent and presume that any schedule for visitation presented by the parent is in the best interest of the child.
The Supreme Court of the United States (SCOTUS) addressed the issue of third party visitation in Troxel v. Granville, 120 S.Ct. 2054 (1999).  In a case brought by grandparents who sought an expanded visitation schedule, the court held unconstitutional a Washington state statute that allowed a court to award visitation to any third party at any time based solely on the best interest of the child standard.
Subsequently, the Maryland Court of Special Appeals, citing Troxel, held that the trial court violated a mother’s Constitutional rights when it ordered her to comply with an increased visitation order between her child and the paternal grandparents.  [See Brice v. Brice, 133 Md. App. 302 (2000)].
In Brice, the mother did not oppose or deny visitation between the daughter and the grandparents but she did object to the court imposing a schedule. The court did not find that Fam. Law § 9-102 is unconstitutional.  Instead, the court found that application of the statute was improper because no court had found the mother unfit and visitation had not been denied.
 Thus, in Maryland, grandparents can still file a petition for visitation under Maryland Annotated Code, Family Law Article, § 9-102.  However, it appears that the petition will only be considered if the parent has been found unfit, exceptional circumstances existed or the parent denied grandparent visitation all together.
In 2007, the Maryland Court of Appeals affirmed that parents have a fundamental right to control the upbringing of their children and that grandparents may only be awarded visitation only if they show that the parents are unfit or exceptional circumstances exist.
"To preserve fundamental parental liberty interests, we now apply a gloss to the Maryland Grandparent Visitation Statute requiring a threshold showing of either parental unfitness or exceptional circumstances indicating that the lack of grandparental visitation has a significant  deleterious effect upon the children who are the subject of the petition."
[Koshko v. Haining, 398 Md. 404, 441 (2007)]
[see, http://www.peoples-law.org/grandparent-visitation-rights; John Fader & Richard Gilbert, Maryland Family Law §6-6 (4th Ed. 2005)]

COMMON LAW MARRIAGES AND DIVORCES IN MARYLAND

www.CharlesJeromeWare.com.  "Here to make a difference."
A "common law" marriage, defined or described as a relationship in which a couple lives together as spouses but has not participated in a lawful marriage ceremony, cannot be created in the State of Maryland.  In other words, a couple cannot acquire marital rights and responsibilities in Maryland by simply living together for a specified period of time.  Further, no legal action is required to dissolve such a relationship---which essentially has no legal standing.
The State of Maryland does, however, recognize as valid, "Common law" marriages which were lawfully created in other states and countries, provided the legal requirements for "common law" marriage in those states and countries have been met.  In those specific cases, legal action is in fact necessary to dissolve those legal "common law" marriages created in other states and foreign countries in compliance with their licensing and ceremonial regulations.  Maryland courts can then determine the rights of the parties now living in Maryland.
For the important purposes of spousal benefits, pension plans, other retirement issues, social security, and inheritance, etc., a valid marriage in Maryland is required.
Individuals should consult an attorney with specific questions as to whether a marriage is valid in Maryland.
[Charles Jerome Ware is a Maryland-based national divorce attorney.  You may contact him with questions or an initial courtesy consultation at (410) 720-6129 or (410) 730-5016.  The information provided above and herein is not designed nor intended to be legal advice]

KEY MARYLAND HOLIDAY CHECKPOINTS AND STRATEGIES, 2014-15

Local Maryland police departments have announced key Maryland holiday DUI checkpoints, including sobriety checkpoints as well as strategies for underage alcohol sales.  These checkpoints and strategies will be in operation through January 15, 2015:
  1. Sobriety checkpoints at traditional geographic locations with high-volume DUI arrests and citations;
  2. Compliance checks of businesses that hold retail alcohol licenses by using underage volunteers to attempt purchases;
  3. Plain clothes surveillance by police officers of alcohol-selling businesses to insure no underage sales;
  4. Public encouragement of and quick response to telephone calls and other complaints of underage drinking parties; and
  5. Sobriety checkpoints near popular alcohol-drinking "spots" such as bars, restaurants, etc.
www.CharlesJeromeWare.com. "Here to make a difference." We can help you. Guaranteed.
Among his numerous other legal awards and honors such as "America's Best Attorneys and Counselors", U.S. Super Lawyer, "Top Lawyers in America", Top Attorneys and Counselors in the U.S., "Top Lawyers in Maryland", and winner of the national "Charles Hamilton Houston Award for Outstanding Litigation", premier criminal defense attorney Charles Ware is recognized and ranked by hi many satisfied clients as well as his legal peers as "One of the 10 BEST DUI and DWI Attorneys in the State of Maryland," as confirmed from research, surveys and other investigation by The American Institute of DUI and DWI Attorneys [AIDUIA] --- a respected national organization of trial lawyers.
Attorney Ware is also the founder and senior partner of the Maryland-based national business, criminal defense and civil trial law firm Charles Jerome Ware, Attorneys & Counselors, LLC. For an initial courtesy consultation, call Mr. Ware at (410) 730-5016 or (410) 720-6129.

UBER Ride-Sharing vs. TAXI CAB INDUSTRY: The Battle Begins in Franchising in NEVADA

www.CharlesJeromeWare.com.  "Here to make a difference."
UBER, the up-and-coming ride-sharing service that has major aspirations for thousands of future franchises as well as its first IPO has encountered a legal snag to its ambitions in the State of Nevada, of all places.
As of December 1st, 2014, UBER has temporarily suspended its business operations in Nevada, after a local court issued a preliminary injunction prohibiting its commercial operations statewide.
The district court judge issued the restraining order against UBER after a case was filed to restrain its commercial activities on November 24th, 2014.  UBER arrived in Nevada on October 24th, 2014, and immediately faced problems with the Nevada Taxicab and Transportation Authority from the very beginning.  In its first 30 or so days of operation in Nevada, it was reported that at least 50 UBER-related cars were impounded.
The Transportation Authority and other opposition argue that UBER must follow the same guidelines and restrictions as "other taxi companies."
[The information presented is not designed nor intended to be legal advice.  Charles Jerome Ware, a premier trial and franchise attorney, can be reached at (410) 720-6129 or (410) 730-5016.  His national law practice is headquartered in the Maryland and Washington, D.C. area.]