Posted on October 19, 2009 in Personal Injury

SUMMARY OF APPLICABLE MARYLAND STATUTES AND CASELAW

I. Rules of the Road, Duty & Standard of Care

The Maryland Transportation Article codifies the "Rules of the Road" for all vehicles traveling on Maryland roadways. All drivers of vehicles in Maryland must observe the rules of the road. Md. Transp. Art. §21-102. They may also assume that others will obey the rules of the road and need not anticipate that others will violate the law. Dean v. Redmiles, 208 Md. 137, 374 A.2d 329 (1977). Pursuant to Md. Transp. Art. §21-1202, the operator of a bicycle on a public street possesses all the rights and duties of the driver of a vehicle. These general duties include the duty to operate a bicycle, or any vehicle, with ordinary care under the circumstances. Kaffl v. Moran, 233 Md. 473, 477-478, 197 A.2d 240, 242 (1964). In addition, there are unique rules of the road that apply particularly to the operation of bicycles. Drivers of motor vehicles owe a duty to bicyclists to exercise due care to avoid colliding with any bicycle being ridden by a person. Md. Transp. Art. §21-1209. Bicycle operators must to ride as close to the right side of the road as practicable, except when turning left, traveling on a one way street, or passing a slower moving vehicle. Md. Transp. Art. §21-1205. Operation of a bicycle in violation of a statute does not constitute negligence as a matter of law, unless the violation is the proximate cause of injury. Miles v. State, 174 Md. 292, 198 A. 724 (1938).

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 Posted on October 17, 2009 in Family Law

On September 21, 2009, the Maryland Court of Appeals issued an opinion holding that the Circuit Court for Garrett County had erred in ordering a paternity test for a child without first considering the child’s best interest. The case, Kamp v. Department of Human Resources, began when Darren Kamp, the father of four children with ex-wife, Vicki Duckworth, requested a paternity test for his fourth child after his ex-wife filed a motion to increase child support. The parties had been married for 16 years, had three children whose paternity was not questioned, but then had a fourth child after Darren had had a vasectomy. During the divorce proceedings in 1999, Darren agreed that he had four children.

The trial court, after ordering paternity testing that found that Darren was not the father of the fourth child, denied Vicki’s motion to increase child support and further terminated Darren’s child support obligation. The Department of Human Services appealed the trial court’s ruling, arguing that Darren could not contest paternity. Maryland’s highest court’s judges all agreed that trial court erred in ordering the test and terminating support, but disagree on their reasoning why. Three of the judges would base their decision on Darren’s 13 year delay in challenging paternity of the child, while the other four judge’s base their decision on the trial court’s lack of consideration of the best interest of the child before ordering the test.

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 Posted on October 16, 2009 in Federal Crimes & White Collar Crimes

https://www.silvermanthompson.com/lawyer-attorney-1300820.html As a Maryland Federal Criminal Attorney I know that nothing in the federal sentencing guidelines strikes more fear into the hearts of defendants and defense attorneys than the Career Offender provisions, found at section 4B1.1. This section is the most overused and perhaps least understood of all components of the guidelines.

In a nutshell, a criminal defendant is considered a Career Offender if he is currently charged with a violent crime or controlled substance offense and has previously been convicted twice of “a felony that is either a crime of violence or a controlled substance offense.” It is basically the federal version of a “third strike” rule. The consequences of being labeled as a career offender are disastrous. First, a defendant’s criminal history category is automatically raised to Category VI-the most serious category in federal law. Second, the offense level for the current charge is also automatically inflated to some of the highest in the guidelines system. In most cases, the level is raised to 37. To give some perspective, level 43 is the highest designation in the sentencing guidelines, and applies to crimes such as 1st degree murder!

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 Posted on October 14, 2009 in Criminal Defense

As a Maryland Criminal Lawyer/Attorney I often counsel people that they must " win the race to the courthouse". What I mean by that is very often inexperienced or inept prosecutors will reflexively side with whomever earns the title "victim" (actually it is really complaining witness) by winning the race to the courthouse to file charges. The typical example is a bar fight or an altercation at some other location that is broken up or otherwise ceases prior to police arriving on the scene. Unless a weapon was used or someone was seriously injured, the police do not have the legal authority to make an arrest. This is because without a weapon or serious injury the only crime would that could be charged is second degree assault which is a misdemeanor in Maryland. The police can only arrest in misdemeanor cases if they actually witness the events. Otherwise, the police are supposed to simply write a report and advise the combatants as to the procedures for filing charges against one another.

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 Posted on October 13, 2009 in Divorce

In Maryland alimony terminates, unless the parties agree otherwise, upon any of the following four events: (1) death of either party (2) the date specified by the court (rehabilitative alimony) (3) upon remarriage spose receiving alimony or (4) if the Court finds termination is necessary in order to avoid an inequitable result. Maryland Code, Family Law § 11-108.

Many clients ask if cohabitating with a new partner is the same as re-marriage for the purposes of termination of alimony. The answer is no, unless the parties agree otherwise (via a separation agreement). However, this does not mean that the paying ex-spouse can not seek a modification based upon the marriage type relationship. According to the Maryland Court of Appeals case Gordon v. Gordon, 342 Md. 294 (1996), the Court should consider the following factors when determining if a relationship amounts to cohabitation for purposes of terminating alimony according to separation agreement between the parties: establishment of common residence, long term romantic involvement, shared assets or bank accounts, joint contribution to household finances, and/or recognition of the relationship by the community. The Court in Gordon specifically states that the following provision included in a separation agreement properly defines cohabitation:

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 Posted on October 12, 2009 in Criminal Defense

Maryland Criminal Lawyers/Attorneys are often called upon to defend people who are charged with Assault or Child Abuse as a result of incidents of parental discipline with their children. I have blogged about this issue in the past but it is worth repeating that prosecutors and police are far more aggressive today in terms of initiating criminal prosecutions in cases that were traditionally viewed as legitimate parental discipline.

My case last week in Prince Georges’ County Maryland involved an incident between my client and his 14 year old son at a restaurant. The facts were that my client’s son was graduating from middle school this past June. Originally the ceremony was scheduled to take place at 3:00pm. However a change in the time was made by the school a few weeks prior to the scheduled date. The time was moved up to 1:00pm. My client’s estranged wife, with whom my he is currently entrenched in a bitter custody dispute, decided not to pass this information on to my client and as a result he missed the graduation.

He showed up at the school at 3:00pm with his mother whom he had flown in from out of town to attend the ceremony only to find out that the ceremony had concluded about an hour before he arrived. Needless to say, he was quite angry and immediately called his ex-wife on the phone. She played dumb and claimed to have thought that she passed the time change on to him and to express how sorry she was that they had missed the graduation. She informed him that they were at a restaurant and invited them to come to their location so they could at least take pictures.

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 Posted on October 07, 2009 in Medical Malpractice

A Florida jury has jus awarded the parents of a 15 year old girl $4.3 million in a medical malpractice case that was filed in 1996. The case arose when the girl was born, at which time doctors misdiagnosed a virus that the girl had. As a result, the girl’s brain and kidneys were permanently damages. The girl now has severe vision problems and permanent cirrhosis of the liver.

Once the girl got sick, the doctors allegedly ignored symptoms that pointed to an enterovirus, a typically mild illness that can become deadly in infants without a developed immune system. The doctors also failed to take liver and blood tests that would have quickly identified the virus.

As an experienced Baltimore, Maryland medical malpractice lawyer, I have handled a number of cases involving children who have suffered severe and permanent injuries from malpractice. It’s always tragic to see a child whose life has been permanently affected by the negligence of another.

We handle cases like these all of the time in my practice.

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 Posted on October 05, 2009 in Personal Injury

WBAL Radio is reporting on their website that Tim Wheatley, the Business Editor for the Baltimore Sun was killed today in a morning accident in Baltimore County. According to WBAL, Mr. Wheatley was attempting to pull onto York Road from Corbet Road when his vehicle was struck on the driver’s side by a UPS truck. The intersection where the accident occurred is controlled by a traffic control device, and at this time an investigation is ongoing to determine who is at fault for the accident. Mr. Wheatley’s daughter was also injured in the accident.

Every year, thousands of Marylanders are injured in automobile accidents as a result of someone else’s negligence. An experienced trial attorney can help protect the injured. If you or someone you know is injured in a car accident in Maryland, contact the Maryland personal injury lawyers of Silverman, Thompson, Slutkin & White, LLC. or contact Andrew G. Slutkin with further questions or inquiries at 410-385-2786

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 Posted on October 02, 2009 in Divorce

Alimony, also known as spousal support, is a payment or a series of payments made from a former spouse to the other that serves as a continuation of the economic responsibilities made during the marriage. There are three types of alimony awarded in Maryland. The first is pendente lite alimony (PL alimony) which is awarded to a spouse during the limited period while the case is pending. The purpose of PL alimony is to keep the status quo of the parties while the divorce action is pending, so that one party does not have an unfair economic advantage over the other. The second type of alimony is rehabilitative alimony. This is alimony that is awarded by the Court only for a set period of time. This period of time is for the purpose of allowing the receiving former spouse to rehabilitate themselves from economic dependence to economic independence through education or training. The third type of alimony is indefinite alimony which the Court only awards in 2 situations. First, when due to age, illness, infirmity or disability the former spouse seeking alimony cannot reasonably be expected to make progress towards becoming self-supporting. Second, when even after the former spouse seeking alimony will have made progress towards becoming self-supporting, the parties’ respective living standards would be unconscionably disproportionate.
Many clients inquire as to how alimony is determined and may be under the wrong impression that like child support , alimony is calculated using a set guideline or formula. There is no formula or guideline for calculating alimony in Maryland, and it is the Judge’s discretion as to whether or not to award alimony. The amount and duration of alimony in Maryland is determined by the Court after considering a list of factors. Maryland Code, Family Law 11-106 states the factors, which are as follows:
(1) the ability of the party seeking alimony to be wholly or partly self-supporting;
(2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
(3) the standard of living that the parties established during their marriage;
(4) the duration of the marriage;
(5) the contributions, monetary and nonmonetary, of each party to the well-being of the family;
(6) the circumstances that contributed to the estrangement of the parties;
(7) the age of each party;
(8) the physical and mental condition of each party;
(9) the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony;
(10) any agreement between the parties;
(11) the financial needs and financial resources of each party, including:
(i) all income and assets, including property that does not produce income;
(ii) any award made under §§ 8-205 and 8-208 of this article;
(iii) the nature and amount of the financial obligations of each party; and
(iv) the right of each party to receive retirement benefits; and
(12) whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the Health – General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur.

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 Posted on October 02, 2009 in Criminal Defense

Maryland Criminal Attorneys represent people accused of domestic violence assaults more and more often these days. As I have noted in the past, the numbers of these cases that are being pursued by the police and prosecutors have increased exponentially over the last decade and a half after the acquittal of OJ Simpson of the murder of his wife.

Very often in domestic violence cases the alleged victim refuses to cooperate with the prosecution. Alleged victims will often recant their allegations, evade service of process and refuse to appear in court or, if the couple is married, invoke the marital privilege and refuse to testify. There are many reasons why alleged victims do this including that the couple has reconciled their relationship, the defendant is the primary breadwinner in the family and his incarceration would cause economic hardship for the family, or that the charges were fabricated in the first place which, believe it or not, happens quite often and, I believe, it is what happened in the case I had this week in the District Court for Baltimore County.

The facts of the case were that the alleged victim and the defendant were in an argument that, according to the victim, became physical. She claimed at the time of the offense, both to the 911 operator and the responding police officers, that the defendant had thrown her to the ground, strangled her and and struck her in the face. The officers noted slight redness to her cheek and a very small amount of dried blood in one of her nostrils. She claimed that after the assault she left the location in her car with the couple’s 3 year old son. She made the 911 call about 15 minutes later and met the police miles from the scene (and away from the defendant) in a parking lot. She was heard to be crying on the 911 tape but was not hysterical or unable to carry on an intelligent conversation. The officer noted in his report that she was crying, shaking and visibly upset. My client was later charged with second degree assault. The State was unable to serve the alleged victim with a summons and she did not appear in court.

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