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WHEN JUSTICE WINS, WE ALL WIN

When justice wins, we all win. Here is a sample of Marks & Katz's victories for justice. Each case is different (e.g., with a different set of facts, law, and adjudicators), and this listing is by no means meant to indicate the results Marks & Katz, LLC, will obtain for future clients. Our goal, of course, is for winning advocacy at every turn.  

-OUR CRIMINAL DEFENSE VICTORIES

-OUR FIRST AMENDMENT VICTORIES

-OUR MVA AND DMV VICTORIES

-OUR ADDITIONAL LITIGATION VICTORIES FOR JUSTICE

MARKS & KATZ'S CRIMINAL DEFENSE VICTORIES

The Case of the Signpost Ahead

The police -- keeping watch  on a large Bush-Cheney sign -- see a minivan pull up. The driver takes an alleged bayonet --that is never produced at trial -- to the sign and cuts out a large rectangular chunk. Meanwhile, his passenger gets out of the car and later gets back in. The police arrest the driver and passenger.  

A firm founded by former active Republican Jay Marks (now and for many years a strong devotee to social justice) and longtime civil liberties activist Jon Katz, Marks & Katz, LLC, once again steps in to defend a colorful political activist.  

At trial, the prosecution starts disintegrating. The police admit the alleged bayonet was found in plain view in the minivan. The judge, therefore, grants Marks & Katz's request to throw out the concealed dangerous weapon charge. The police testify that the driver was cutting the sign in broad daylight, near one of the city's busiest intersections. Marks & Katz argues that, therefore, there is no need for a conspiracy nor a conspiracy, because the driver is acting on his own without making any effort to hide his actions. The judge acquits on conspiracy. 

Left with the property destruction count, Marks & Katz argues that the sign was abandoned, and therefore valueless, where the commercial property owner never showed up to testify that the Bush-Cheney supporters had any permission to place the poster there. The judge reasoned that the poster didn't lose its value where the posters thought they had permission. 

The result of this overcharging by the police: acquittal on two counts, and a one-year probation before judgment without executed jail time for property destruction, together with a restitution and community service order. In seeking the most lenient possible sentence, Marks & Katz argued that this incident, just one month before election day, took place when opponents of Bush and the Gulf War were still angry over the 2000 election Supreme Court outcome and the ongoing war, and that the driver had since found a way to channel his activism into the positive outlet of Habitat for Humanity.  

The Case of Picture This

Before he ever hires us, our client stands before a judge who sentences him to six months in  jail for photographing his housemate while her crotch allegedly is partially visible. Our client turns to Marks & Katz, LLC, to undo the damage. 

At trial, we emphasize to the jury that on the alleged incident date, our client comes upstairs from the basement without his glasses. He sees his housemate sleeping on the living room couch, and photographs her with his nearby digital camera (and creating the allegedly smoking gun). He puts down his camera, and goes about his business. 

In closing argument, we remind the jury that being offensive is not a crime (lest Muzak serve life in prison). We remind the jury that our client previously always saw the complainant dressed more modestly, and had no notice that she would be disrobed at all when he took the photo. The jury deliberates for about two hours, requests clarification of the jury instructions (which clarification Marks & Katz provides), and then the jury returns a verdict for justice, to the tune of "not guilty". 

Every Breath You Take: Beating the Breath Technicians at Their Own Game

When most people are in bed, a police officer stops our client allegedly for running a red light. The case quickly changes to a drunk driving prosecution. The officer is dissatisfied with an odor of alcohol coming from the car, and our client's allegedly insufficient performance on field sobriety tests including standing on one leg and walking heel-to-toe for nine steps in each direction (hardly physical exercises that people practice even in gym class). 

The officer brings our client to a police breath test equipment operator, who claims to find a 0.15 blood alcohol level. Marks & Katz immediately goes to work, to include challenging the reliability of the test results. The trial judge is at first skeptical about our arguments, but then ends up discounting the breath test results after we argue further that the police made a critical error in not assuring that our client was observed for at least twenty minutes with an empty mouth (both empty from eating and from regurgitating), to avoid the possibility of a false test result. To drive the point home, we present the testimony of a forensic scientist who is fully familiar with the limitations of the breath testing equipment and of the people who operate the equipment.  Consequently, our client wins on the count of driving under the influence of alcohol, is found liable for the less serious charge of driving while impaired, and is granted his request for a probation before judgment, to enable him to avoid losing any points off his license.  

Miranda to the Rescue

Late one evening, the police stop our client for allegedly disobeying a flashing detour sign. The police officer smells alcohol on our client, and suspects driving under the influence of alcohol. The officer writes in his report that soon after asking our client to do field sobriety tests (e.g., the one leg stand and the walk and turn test), our client says without prompting: "We both know I'm too drunk to do these tests." If this statement comes into evidence, the prosecutor will have a much stronger case, even though our client refused a blood alcohol test 

At trial, we have a judge who is personable, but who also has a tendency to overrule most objections. Consequently, we make few objections, until the prosecutor tries to ask the police officer about our client's alleged admission that he was drunk. Specifically, after the arresting officer is on the witness stand for a few minutes, the prosecutor asks the police officer "What else did the defendant say at the scene?". Marks & Katz promptly objects, and the judge sustains the objection. The prosecutor keeps trying to ask the same question a different way, Marks & Katz keeps objecting, and the judge keeps on sustaining. 

The prosecutor could have gotten Marks & Katz's objection overruled had the prosecutor laid the foundation that the police officer had not yet testified about every relevant statement made voluntarily by our client at the scene (the most important one being that he was drunk). If the prosecutor followed this approach, Marks & Katz would have invoked Miranda, and argued that the alleged admission of drunkenness was made through questioning while in custody and without waiver of our client's Miranda rights to remain silent and to have a lawyer present. 

By keeping out our client's alleged admission of drunkenness, we successfully argue that he was not guilty of the lead charge of driving under the influence of alcohol (which carries up to one year in jail and enough points to revoke a license). Instead, our client is only found guilty of driving while impaired by alcohol, which carries a maximum of sixty days in jail and eight points off one's license (which will not automatically jeopardize a license). Even though our client was found guilty less than five years before for drinking and driving, we convince the judge not only to keep our client out of jail, but not even to impose supervised probation. This case highlights that the most exhilarating victories in criminal defense tend to come once the defendant takes the risk of going to trial.  

The Case of the Marijuana that Wasn't

It is Thursday at 1:00 a.m., with barely a car in site. The police stop our client for not stopping at a flashing red light. The officer incorrectly concludes that the driver has been driving while intoxicated. Our client agrees to a breath test, which proves the officer wrong. Not satisfied, and suspecting that drugs therefore are involved, the officer calls a so-called drug recognition expert (DRE) to the station. Arriving several hours later, the DRE concludes from the driver's behavior and apparent green coating under his tongue that the driver is under the influence of marijuana. 

At trial, on charges of driving under the influence of drugs and a moving violation  Marks & Katz, LLC, successfully argues our client's innocence of driving under the influence of drugs. We focus on the prosecutor's burden to prove our client guilty beyond a reasonable doubt, and proceed to point to the reasonable doubt galore, including the absence of any marijuana leaves, the smell of any marijuana, and any admission of the use or presence of marijuana. We argue that the DRE has insufficient qualifications and is using junk science. We win against the charge of driving under the influence of drugs. Our client is found guilty only of the non-jailable offense of driving through a flashing red light; about two months later, we convince the judge to assess no points for the traffic light violation. 

The Case of the Marijuana that Was, or Was It?

It is late at night, and a police officer thinks he sees our client driver puffing marijuana from a pipe. For that sole basis, the officer stops the driver, and smells smoked marijuana coming through the open window. The police order the driver out of the car, and find two pipes in the car. A police search of the car finds two bags of a leafy green substance. Nothing is found on our client's person. 

At trial on charges of possession of drugs and drug paraphernalia, Marks & Katz, LLC, argues to suppress all evidence due to an unlawful car stop, since both tobacco and marijuana can be smoked from the same pipe, but the judge allows the testimony after deciding the testimony is sufficient to show such a pipe is ordinarily used to smoke marijuana . We also argue that the prosecutor failed to prove beyond a reasonable doubt the essential element of our client's knowledge of the presence of the alleged marijuana. After all, the car was an overstrewn mess, the prosecutor presented no admissible proof of the car owner's identity, and even the officer had significant difficulty finding the alleged marijuana, 

Our winning argument, though, is to challenge that the alleged marijuana found by the police is not necessarily the same substance that was tested by the county's crime lab. Well in advance of trial, Marks & Katz, LLC, filed a demand for the presence and testimony at trial of the chemist and all other persons who handled the alleged marijuana or the package containing the alleged marijuana. However, the prosecutor only produces the testimony of two of the four people who handled the alleged marijuana package (the stopping and seizing officer and chemist testify). Therefore, our client is found not guilty for the alleged marijuana. He is found guilty only of the non-jailable offense of drug paraphernalia possession (for the alleged pot pipes). 

The Case of the Innocent Drunk Man

It is late at night, and a police officer finds our client kicking snow from a car that was run off the road. The officer never sees our client inside the car, and has not witnessed a warm engine. 

At trial on drunk driving charges, Marks & Katz, LLC, hammers home its winning argument that the prosecution failed to satisfy Maryland law's essential element that our client drove or attempted to drive the vehicle after drinking too much (see the law here). We win despite evidence of our client's poor coordination, admission that he had been drinking at the bar, and breath test results indicating that his blood alcohol level was over twice the legally allowed limit. Despite these strikes against our client, there is insufficient evidence to prove when our client had been driving or attempting to drive the car, and whether his drinking at the nearby bar started only after his one-car accident. 

Sinking the Drinking and Boating Prosecution

The sun has just set, and our client is boating with a companion to a restaurant. However, our client miscalculates when the dark will arrive, and the police stop our client for not having the rear light illuminated in the dark. The police start talking with our client and erroneously conclude intoxication, based on "uncooperative" behavior, swaying, "strong" alcohol odor, "slurred speech", "glassy eyes", and imperfect performance on the unscientific field sobriety tests (see http://www.markskatz.com/dwi.htm ) and the sham horizontal gaze nystagmus test. 

Marks & Katz, LLC, steps up to bat. At trial, before the first witness gets sworn in, we convince the prosecutor -- apparently against her wishes -- to reduce the charges from boating under the influence of alcohol (carrying up to twelve months in jail) to boating while impaired by alcohol (carrying only one-sixth the jail exposure). 

Marks & Katz cross examines the arresting police officer at trial to highlight how weak his story is. For one thing, we get the police officer to admit that our client's boat was swaying, and that when one gets on land from a long boat ride (as our client did), the land can feel like it's swaying. This natural swaying argument helps win the case. We also argue that the absence of a blood alcohol test result should be construed favorably for our client, because Maryland case law burdens the government with proving a willful refusal of a blood alcohol test. We walk out victorious with our client owing nothing more than a fine for not having illuminated his rear light. 

The Case of the Sabotaged Sabotage Prosecution

It is a chilly early December morning. Four figures pass without detection into a military base, carrying hammers inscribed with biblical phrases. They begin to hammer on two warplanes, one with a huge rosary now hung from its nosecone, intending on beating swords into plowshares. They pour their blood on the planes, symbolizing the blood of Jesus. They've hung a banner from one of the planes, and have left leaflets decrying these planes and the depleted uranium bullets that they fire. 

These four Plowshares peace activists hire Marks & Katz and former United States Attorney General Ramsey Clark to advocate for them at their criminal jury trial. However, before the jury trial begins, it is time to strike back for the prosecution's overcharging the Plowshares in alleging sabotage and conspiracy to commit sabotage. Jon Katz successfully argues in writing and during arguments one week before trial that this is not a case of sabotage even if one were to believe the prosecution's factual allegations. For further information about the Plowshares case, click here. For Marks & Katz's winning motion to dismiss the sabotage counts, click here. 

The Case of the Unlawful Drunk Driving Arrest

It is late at night, and a police officer stops a car after it weaves in and out of its lane. The case goes to trial on charges of criminal drinking and driving. However, the trial doesn't go far before Marks & Katz, LLC, wins a dismissal for an unlawful stop of our client. 

At trial, held just twenty yards from the arrest site, Marks & Katz, LLC, cross examines the stopping police officer, to convince the judge to throw out the case. We lock the officer into a story that will enhance our chances of suppressing the stop: traffic was light; the officer observed our client driving for less than one hundred yards; and our client did not cause any near-collisions. We then successfully argue to suppress the stop and all subsequently obtained evidence, because the Maryland Court of Appeals confirmed in 2001 that mere weaving in and out of one's lane of travel -- without more -- is not a sufficient basis for stopping a car (see the case here). The judge agrees that the prosecution has in fact failed to show that our client was lawfully stopped by the police. Our client is acquitted.

The Case of the Absent Breath Technician

It is holiday season, and the police stop our client for a traffic violation. The officer suspects our client is drunk, and confirms this through a breath test showing a blood alcohol level exceeding Maryland's legal limit.  

Marks & Katz, LLC, files numerous pretrial documents to protect our client's rights, including a demand that the prosecution provide all particulars concerning the charges against our client. The case goes to trial on charges of drunk driving. Before the presentation of evidence, Marks & Katz alerts the judge that the charging document alleges multiple crimes of driving while intoxicated, driving under the influence of alcohol, and driving under the influence of drugs. Based on our previous demand for particulars, we ask that the prosecutor be required to limit the trial to just one of these charges. Instead of arguing that the prosecution does not have to make such a designation, the prosecutor elects to prosecute only on a charge of the then less serious charge of driving under the influence of alcohol. The benefit to our client was to reduce his exposure to a maximum of sixty days in jail and eight points off his Maryland license, rather than the more onerous lead charge carrying a maximum of twelve months in jail and twelve points off the license. 

Why did the prosecutor elect to proceed with the lesser drinking and driving count, rather than on the more serious drinking and driving count? Why did the prosecutor not present the testimony of the breath technician, even though the technician was apparently present in the courthouse. Those questions made little difference to our client, who was happy to leave the courthouse only with a guilty finding on the lesser count, and with a probation before judgment disposition that avoided jail and avoided any points off his license.  

The Disintegrating Drunk Driving Prosecution

The police stop our client at a field sobriety checkpoint, which the Supreme Court has refused to invalidate, despite the Fourth Amendment's guarantee against unreasonable searches and seizures. The police suspect our client of drunk driving, and obtain a breath test reading that is more than twice the established legal limit. 

 We show up in court for our client's scheduling hearing, but the prosecutor has not processed the case yet. The judge tells us to come back if notified to do so. Instead, the case falls into silence, and we hear nothing more. Several months pass, and now it is nearly too late under the Constitution to enable a prosecution. For reasons still unknown, we discover the prosecution dismissed the case before it ever started. 

The Case of the Powerful Motion

One evening our client is exceeding the speed limit, leading to a police stop. Our client's alleged blood alcohol level is very high, creating exposure to mandatory jail time. Marks & Katz, LLC, files numerous pretrial documents to protect our client's rights, including a motion to suppress the prosecution's evidence. After the prosecution fails to file a timely opposition to our motion to suppress, Marks & Katz files a motion to treat our original motion to suppress as conceded to, because the governing court rules allow such a concession to be declared absent the timely filing of an opposition motion. 

We show up for the trial date, and among the judge's first words is to inquire about the prosecution's position on Marks & Katz's motion to suppress evidence. After the judge shows no sympathy for the prosecution's failure to file an opposition motion, the prosecutor dismisses the case without prejudice, to keep the opportunity to begin the prosecution anew on a later date (which would have had  Marks & Katz arguing a violation of our client's right to a speedy trial). Over one year has passed, and the case has remained dismissed, where now it will always remain.

The Case of the Crime that Didn't Exist

The police execute a search and seizure warrant on a house in the District of Columbia, to find Marks & Katz's client nearby numerous lockboxes, which demonstrators can use to lock arms together in a fashion that requires substantial time and effort by the police to get them disengaged. The prosecutors try to obtain a conviction, but there's just one catch: the District of Columbia has no law at the time prohibiting possession of such items. Nevertheless, the prosecutor tries to twist the English language on its head to claim that our client has violated a law that governs possession of implements of burglars' tools; demonstrators' lockboxes clearly are not burglars' tools. At the hearing on its motion to dismiss, Marks & Katz persuasively and methodically shows the judge that the language of the statute involved in the prosecution -- straight down to the placement of the commas in the statute -- has no relationship to the alleged criminal activity by our client. The judge agrees and dismisses the prosecution. Although the prosecutor then files an appeal, the prosecutor then withdraws the appeal before legal briefs are due. Late, but finally, our client obtains justice. 

The Case of the Unjust Bond That Shrank

Marks & Katz's client is arrested under suspicion of trying to kill our client's baby daughter by shaking after she is brought to the hospital with cerebral hemorrhaging. Before even holding a bond hearing, the court sets bond at $325,000 for our client. Marks & Katz immediately goes into action by visiting the hospital to obtain and review critical medical records of the child, to show the court -- along with medical studies on shaken baby syndrome -- that legions of circumstances could have caused the child's injuries without any wrongdoing by our client. We demonstrate that, even assuming for argument's sake that the child was shaken, shaking by itself has as little chance of causing brain injury as shaking an egg will break the yolk (it will not). Furthermore, we present medical evidence that even when a baby suffers a head injury, the child can remain lucid for up to forty-eight hours, which, therefore, raises substantial questions about who or what might have caused this child's head injury, and when. Through these arguments, combined with other persuasive evidence that our client is not a risk of flight nor a danger to others, the same judge dramatically reduces our client's bond to $50,000, which enable him to leave pretrial detention in a matter of days after his arrest. 

Once is Never Enough

Marks & Katz's client is accused of harassing her husband's significant other by going to the complainant's home and raising a raucous. At the peace order hearing, the complainant gets on the witness stand and talks on and on. Marks & Katz cross examines her to show our client had a legitimate purpose to be there, because she was visiting her husband who was inside. At the close of the opponent's evidence, Marks & Katz argues, in part, to dismiss for failure to testify to any continuing course of conduct, since the law does not otherwise permit a harassment finding. The judge agrees and dismisses the case. Justice is done, except for the injustice of our client's having to spend legal fees and experience the anxiety of defending her case. 

The Case of the Eluded Mandatory Minimum Sentence

It is nighttime and Marks & Katz's client gets into a one-car accident. The police arrive to take an accident report, but eventually suspect our client of drinking and driving. Our client takes the breath test, which results in .20, which exposes our client to a mandatory minimum five days in jail if convicted. Marks & Katz sees that all the prosecutor's necessary witnesses are present, and, with our client's admission to the police of being the driver, determines that the chances of an acquittal are very limited. Consequently, our client negotiates to plead guilty as a first-time drunk driver (despite a previous conviction that brings an additional five days of mandatory minimum jail exposure), and then Marks & Katz successfully contends through a hotly argued hearing that no sufficient proof has been made that our client's .20 blood alcohol test result accurately reflects a blood alcohol level at the time of the collision, when considering our client's testimony about drinking liquor after the collision took place, and after leaving the wheel. We all walk out of the courthouse free from the jail's cages.  

The Prosecution that Ended Soon After it Started

Maryland's new Republican lieutenant governor is speaking at a local hotel, and he has attracted a group of demonstrators demanding sufficient funding for public education. The demonstrators are told to leave, which they start doing. Not satisfied with his speed of departure, the police arrest one of the demonstrators, who then turns to Marks & Katz for pro bono criminal defense. Marks & Katz argues to the prosecutor that the arrested demonstrator (charged with trespass and failure to obey a police officer's lawful order) is from a low-key community activist organization (ACORN), and that the prosecution was not justified. Two weeks before the case is to go to trial, the prosecutor dismisses the case. 

The Victory for Double Jeopardy and Nude Dancing

One evening in 1999, police in SWAT-team gear raid an exotic cabaret for allegedly violating the county's ban on full nudity in public. The defendants convince the trial judge to throw the case out of court, successfully arguing that the cabaret is not a public place under the governing law, and that the Constitution protects nude dancing. The prosecution successfully appeals to the Circuit Court, which sends the case back to District Court for trial. 

The defendants then hire Marks & Katz, which successfully obtains leave to appeal to the Maryland Court of Appeals.  Marks & Katz successfully argues in writing and during August 2002 oral argument that the defendants' double jeopardy rights prevented the prosecutor's original appeal and required the reinstatement of the original dismissal of the prosecution, even though no witnesses had yet been sworn in against the defendants. In November 2002, a four to three majority of the Court of Appeals rules in the defendants' favor, and reinstates the original dismissal of the prosecution. For full details, click here. 

Obtaining Justice in a Post-9/11 World

A teenager escapes to the United States from the violence of post-Marxist Afghanistan. He applies for political asylum. Unfortunately for our client, although the Republican administration does not like Marxist governments, the Soviets and their client Marxist government have long since departed Afghanistan. Similarly, although the United States government does not like the Taliban, this is pre-Taliban days. Asylum is denied our client, and he is without a valid visa to remain in the United States. 

For inexplicable reasons, the United States government then takes several years to issue an order for our client to depart the United States. Several years later, the September 11 murders take place, and the federal government tries to interview as many native males from Afghanistan and other "suspect" countries that will speak to the authorities. In the process, the federal authorities nab our client for deportation proceedings. Not satisfied to stop there, the United States Attorney's Office steps in, and charges our client with the crime of violating his deportation order. A conviction will make our client jailable, and will further harm our client's ability to return to the United States in the future, and can harm his ability to obtain residence visas in other countries. 

Once criminally charged, our client hires Marks & Katz to defend him in criminal court. Marks & Katz goes into action by presenting a spirited defense at the preliminary hearing to demonstrate the case's substantial weaknesses, including the prosecutor's failure to show that our client knew or should have known about the deportation order. Not a shred of evidence shows that the deportation order was delivered to our client, rather than just to his previous immigration attorney, nor that the previous immigration lawyer even knew where to find the client by that time. 

The prosecutor initially refuses to drop the case. However, after Marks & Katz's persistence in presenting a spirited defense for our client, the prosecutor finally relents and dismisses the case rather than seeking an indictment. 

WHAT DO CLIENTS SAY ABOUT OUR CRIMINAL DEFENSE WORK? "Jon and his staff were meticulous, dedicated, and determined to ensure my rights as a citizen were fully maintained during my case. He laid out several scenarios on how things could proceed and stuck to the one that we both felt had the highest likelihood of success of maintaining my innocence - which was the end result. While I was financially constrained, Jon worked with me to ensure I had the best defense I could, which was more than I ever imagined! I keep Jon's card in my wallet and highly recommend him to anyone needing legal services." (From a criminal defense client).

"Mr. Katz has provided excellent service at competitive price for my case. Everything went on just as what he described in our initial meeting. I'm so satisfied with the outcome, and I'd strongly recommend this attorney! I really appreciate your effort you put in my case, Jon." (From a criminal defense client). 

MARKS & KATZ'S FIRST AMENDMENT VICTORIES

Marks & Katz's Joint Appellate Amicus Brief Advances Winning 1st Amendment Argument

Howard County, Maryland, attempts through the back door to keep out adult entertainment businesses through its ordinance that leaves a minuscule number of sites available for the location of current and future adult businesses. Marks & Katz joins forces with co-counsel David A. Wasserman to file an amicus curiae appellate brief before Maryland's highest court against the ordinance. The court grabs onto our joint amicus brief's argument that the ordinance unconstitutionally requires the disclosure of the identities of too many owners and financially interested parties in proposed and existing adult businesses. Our joint amicus brief is the only brief against the ordinance to address this issue head on, to the point that the concurring court opinion finds that the "clearest statement of this issue is located in the Amicus brief filed by [our client] Free Speech Coalition of the District of Columbia, Maryland and Virginia." For more information, click here. 

The Vindication of First Amendment Rights Through Persistence

The circus is coming to town, and an animal rights group wants to park its protest van outside opening night. The only hitch is that the hosting city says no. 

Not content with the city's answer, People for the Ethical Treatment of Animals calls Marks & Katz, LLC, to vindicate its First Amendment rights, and to show that for circus animals, the picture is far from rosy. 

In less than two business days, Marks & Katz, LLC, obtains a reversal for PETA one day before the circus's opening night, after arguing to Baltimore's Law Department that the permit denial amounts to an unconstitutional prior restraint of protected speech. Marks & Katz argues that Baltimore has a particular First Amendment problem for not even having written guidelines for granting or denying such permit applications.

PETA shows up at opening night only to have police order the protest van to move from its permitted spot, claiming that the van is obstructing rush hour buses. Marks & Katz partner Jon Katz moves into action, telling the police that the permit is a done deal, and calling a Baltimore City Law Department attorney about the police interference with the permit. The van stays where it is, while disseminating video images and pamphlets about the circus. 

The PETA demonstrators return to the circus arena the next night on foot. As the PETA demonstrators hand out pamphlets to passersby and circus attendees, police stand within arms length of the demonstrators, sometimes telling the demonstrators they are blocking the path of pedestrians, even though the sidewalk is wide enough to accommodate several people walking abreast. 

Our partner Jon Katz faxes and speaks with Baltimore's Law Department  the next day to complain. Persistence once again pays off. When Jon visits the PETA demonstrators outside the circus's third night, the demonstrators are freely distributing animal rights pamphlets, with not a police officer in site. For more information on this case, click here.  

Vindicating Workers' Free Expression Rights

With lead counsel, Marks & Katz, LLC, succeeds in reversing termination of prison officer who appeared nude on the Internet. See full details here. 

MARKS & KATZ'S MVA AND DMV VICTORIES

Not content to have criminal penalties available for alleged intoxicated drivers, Maryland and the District of Columbia allow civil suspension of driving privileges for intoxicated driving, regardless of the outcome of the parallel criminal prosecution. Here are victories we have obtained in this forum: 

The Case of the Invisible Ink

One evening, a police officer stops our client allegedly for weaving on the roadway. The officer claims to smell a strong odor of alcohol on our client's breath, claims our client refused field sobriety tests (e.g., one-leg stand and walk and turn), and claims he refused a breath test at the station. However, perhaps the officer is writing with invisible ink, in that the advice of rights form for the breath test has no officer signature to confirm that our client was properly advised about his right to take or refuse the breath test, the officer omits the incident location in the report that goes to the administrative law judge who decides whether to suspend our client's license (thus failing to establish that our client was driving in a place where the drinking and driving laws are applicable), and gives no support to suspect unlawful blood alcohol (other than saying our client weaved on the road and had a strong alcohol odor on his breath). At our client's Maryland administrative license suspension hearing, Marks & Katz successfully argues to the administrative law judge that the opposition has failed to prove that the police officer had reasonable grounds to believe our client was driving with an unlawfully high blood alcohol level. As a result of our victory, our client averts his exposure to a 120-day license suspension for having refused to take the alcohol breath test. 

The Case of the Officer's Vague Pen

Late one evening, the police stop our client for allegedly disobeying a flashing detour sign. The police officer smells alcohol on our client, and suspects driving under the influence of alcohol. Our client refuses a blood alcohol test, bringing exposure to a mandatory 120-day driver's license suspension for the refusal, and a one-year suspension if this is not a first offense. 

In preparation for our client's administrative license suspension hearing, Marks & Katz sees that the police officer has made a major blunder by failing to show in the administrative record any evidence of drunkenness other than strong odor of alcohol and a client who allegedly almost misses hitting a flashing detour sign. Marks & Katz argues that it is rare to see an administrative record that does not allege such details as bloodshot or watery eyes, slurred speech, failure (or refusal) with field sobriety tests, and evidence of impairment through erratic driving and other non-sober behavior. Marks & Katz also points out that, although the officer concludes our client almost hit the sign, the officer does not allege that our client hit the sign, and does not say how close our client came to the sign. That our client did not hit the sign shows, we argue, sufficient sobriety ultimately to follow the detour sign.  

Marks & Katz argues that the allegation of nearly hitting the flashing detour sign is not enough to give the officer reasonable grounds to ask for a breath test. We ask the administrative law judge to take judicial notice that the route involved in this case is a major artery, and that drivers will miss unexpected traffic signals (including detour arrows) all the time on major routes, because such signs are not expected. We argue that to allow a license suspension under such circumstances will set the bar much too low for determining when an officer has reasonable grounds to request a blood alcohol test. 

Without taking the proceedings further, the judge takes out the decision form and starts writing -- an excellent sign that we will win, which we do. 

The Case of the Ticking Clock

The police stop our client driver for not stopping at a flashing red light, and the officer incorrectly concludes that the driver has been driving while intoxicated. Our client agrees to a breath test, which proves the officer wrong. Not satisfied, and suspecting that drugs therefore are involved, the officer calls a so-called drug recognition expert (DRE) to the station. This being in the early morning, the DRE takes over three hours to arrive. The DRE claims reasonable grounds exist to suspect our client was driving under the influence of marijuana, and asks our client to submit to a blood drug test. Our client refuses, which means exposure to a 120-day license loss should the administrative law judge determine the DRE had reasonable grounds to ask for the blood test. 

At our client's administrative license suspension hearing, Marks & Katz successfully argues to the administrative law judge that the DRE failed to offer the blood test within four hours after the arrest. Maryland law provides for the blood test to be taken within that four-hour window. Marks & Katz also successfully argued that it was not insignificant that the test was offered only twenty minutes after the four-hour window had elapsed. For instance, Maryland law allows a driver the same four hours to withdraw a blood test refusal; our client was denied that opportunity based on the time that had elapsed to ask him to take the blood test. We walked out of the hearing room with our client and with his driving privileges fully intact. 

The Case of the Vague John Hancock

The police stop our client for erratic driving. The officer incorrectly concludes that the driver has been driving while intoxicated. Our client agrees to an alcohol breath test, and signs the breath test advice of rights form that includes a checkbox to indicate a refusal to take the test, and a checkbox to indicate agreement to take the test. 

Our client passes the alcohol breath test.  Suspecting our client of driving under the influence of drugs, the officer calls a so-called drug recognition expert (DRE) to the station. The DRE claims reasonable grounds exist to suspect our client was driving under the influence of a designer drug, and asks our client to submit to a blood drug test. Our client allegedly refuses, which means exposure to a 120-day license loss should the administrative law judge determine the DRE had reasonable grounds to ask for the blood test and that our client refused the test. . 

At our client's administrative license suspension hearing, Marks & Katz successfully argues to the administrative law judge that the government failed to meet its burden to prove (1) that our client properly was offered the drug test and (2) that our client was fully advised of all potential risks for refusing the drug test. The government only supplies one advice of rights form for the hearing, and the same form covered both breathalyzer tests for alcohol, and blood tests for drugs. Nothing in the evidence shows that our client was re-read any rights before the police checked off the box showing a refusal of the blood drug test, nor that our client was offered the opportunity to sign a confirmation that our client was refusing the blood test. Moreover, no time is indicated on the advice of rights form to show whether our client was offered the blood test within the requisite four hour period after being arrested (NOTE: Unfortunately, in March 2004, the Maryland Court of Appeals made it possible to suspend a license for a refusal, even if the test is offered after the statutorily provided time period). As a result, our client wins.

The Case of the Vindicated Drunk Man

A police officer finds our client late at night, kicking snow from a car that was run off the road. The officer never saw our client inside the car, and did not witness a warm engine. Our client does not perform the field sobriety tests to the officer's satisfaction. Our client submits to a blood alcohol test that delivers a result over twice the legal limit. 

At our client's administrative license suspension hearing, the administrative law judge admits into evidence the police report alleging that our client admitted to driving the car from the parking lot of the bar across the street. Marks & Katz argues that the case should be dismissed for failure to show the extent to which the alcohol was consumed before or after our client was run off the road. The administrative law judge refuses to dismiss without testimony from our client, who has a Constitutionally protected right to remain silent. 

Our client waives his Fifth Amendment right to remain silent, and  Marks & Katz presents his testimony to convince the administrative law judge that he had an insignificant amount of alcohol during a six-hour period before the one-car accident, and that he drank the remaining liquor at the bar across the street only after the accident. After the bar's closing time, our client returned across the street, standing next to his car. We leave the hearing room victorious. 

The Case of the Paperless Police Officer

The police stopped our client at a field sobriety checkpoint. The officer suspects our client of drunk driving, and personally obtains a breath test reading that is more than twice the established legal limit. At our client's license suspension hearing date in the District of Columbia, Marks & Katz's Jon Katz greets the police officer, who claims he is only present for another case, and was never notified of my client's hearing date. Our client's hearing is then announced, and we find the same police officer in the hearing room. 

As the hearing examiner begins preliminary matters, Jon Katz expresses his understanding that the officer did not come with his case file, and the officer confirms the same. Instead of choosing the option to allow the officer to get his file and return, the hearing examiner excuses the officer. The hearing examiner then directs that the case be dismissed upon her receipt of a notice from the city's health department of our client's completion of a drinking and driving education program. We leave the hearing room with our client's license intact.

The Case of the Limp Police Report

A police officer suspects our client of drunk driving, and proceeds to conduct field sobriety tests (which tests are further discussed by us here). Still suspecting drunk driving, the officer brings our client to the police station, and asks our client to submit to a blood alcohol test. Our client refuses, which means exposure to a 120-day license loss should the administrative law judge determine that reasonable grounds existed to seek the blood alcohol test. 

At our client's administrative license suspension hearing, Marks & Katz successfully argues to dismiss the proceedings, with the administrative law judge finding no showing in the police report that our client had been properly stopped by the police  in the first place. We leave the hearing room with justice ours. 

The Case of the Missing Smoking Gun

Our client is stopped for speeding, and the police officer suspects her of drunk driving. He asks our client to undergo the so-called field sobriety tests  (which tests we further discuss here), and claims our client failed them. The police bring our client to the police station, and claim our client refused to take a blood alcohol test, which exposes our client to a 120-day driving suspension, without the possibility of a restricted license absent the opportunity to participate in the ignition interlock program. 

Our client immediately hires Marks & Katz to defend against the resulting criminal prosecution and license suspension case. Marks & Katz immediately takes action, including obtaining a copy of the Motor Vehicle Administration's documentary evidence against our client. Meticulously reviewing every document in the case, Marks & Katz sees that the MVA has submitted the wrong advice of rights form (the form DR15), by submitting a DR15 form for a different person from a day before by a different police officer. 

At our client's license suspension hearing, Marks & Katz verifies that the file still includes the wrong DR15. Marks & Katz wins by arguing that the police report's claim of a blood alcohol test does not satisfy the Motor Vehicle Administration's burden to prove that our client was properly advised of the costs and benefits of refusing a blood alcohol test. Absent a DR15 that was presented to our client, the MVA's case must fail, and it does. Even though the wrong DR15 rarely finds its way into the evidence file, Marks & Katz knows that a victory is just as sweet whether won by panning for tiny glimmers of gold -- as here -- or hitting all the balls out of the ballpark. 

MARKS & KATZ'S ADDITIONAL VICTORIES FOR JUSTICE

The Case of Close but no Cigar

It is June 2003, and the Montgomery County, Maryland, government sends a 17 1/2 year-old man to see if a store will sell him a cigar when the age cutoff is eighteen. The county government then slaps Marks & Katz's retail store client with a $500 citation for selling tobacco to a minor. Instead of paying the fine (which payment would be an admission of liability), the store hires Marks & Katz to go to trial. 

At trial, the county's attorney presents one sole witness, the now-eighteen-year-old who alleges he bought a cigar from the store when 17 1/2 years old. The county's attorney offers the cigar into evidence. Marks & Katz successfully keeps the cigar out of evidence after establishing that the evidence was insufficient to show this was the same cigar purchased by the witness, who had not maintained control and custody of the cigar between the cigar's purchase date and the trial date. 

After the county's attorney rests at trial, Marks & Katz successfully wins the case after arguing that no sufficient proof was made that it was actually tobacco that was sold (for instance, the alleged cigar was never tested for tobacco by a chemist, and the county's sole witness said nothing about familiarity with tobacco products other than his conclusory statement that he had bought a cigar); and after arguing that there was only testimony about the name of the store, but not of the corporate name that appeared on the citation against our client. The judge grasped onto the county's failure to connect the store name with the corporate name listed on the citation (both names were totally different), and found our client victorious. 

The key to Marks & Katz's victory was to focus the judge not merely on whether tobacco had been sold to a minor, but to focus the judge on the county government's failure to prove every element of the alleged infraction, including proving who committed the alleged wrong. 

MARKS & KATZ, LLC - EXPERIENCED FIGHTERS FOR JUSTICE

     Marks & Katz was founded by a couple of eternal idealists who continue to believe that justice is not just a dream, justice is not just an ideal, and justice is not to be relegated to dusty library stacks. We kept this ideal alive before, during, and after law school, when many around us thought we were being quixotic. This ideal drives our law firm and what we do for our clients every day. We put our clients ahead of money, focus on winning advocacy, and maintain strong passion for our clients and their causes. Our founding law partners Jay Marks and Jon Katz met in 1969, attended public school together, trust each other deeply, and work closely together. We opened in 1998 after working many years at other law offices. We are dedicated to justice, welcome tough cases, and never shy away from controversy. 

How We Bill/Contact Us:

JAY S. MARKS (Admitted in MD/DC/IL, and the U.S. Court of Appeals (4th Circuit)).  Se habla espanol. Se fala portugues.

JONATHAN L. KATZ  (Admitted in MD/DC/VA state and federal courts, and the U.S. Supreme Court) On parle francais. 

Visit our homepage at www.markskatz.com.  Copyright 1999-2007 Marks & Katz, LLC.