DC DUI/DWI LAWS: LEAVING THE SCENE AFTER COLLIDING

The pertinent DC statute addressing driving a motor vehicle while under the influence also addresses leaving the scene of an accident after colliding because often drinking and driving results in accidents. Thus this blog addresses both of these offenses in detail enumerating the statutory/legal elements for both offenses separately. Specifically, the statute criminalizes damage to property as well as damage to an individual and also a domestic animal. That is, any person operating a vehicle that causes “substantial damage” to another property (vehicle) and leaves without either giving assistance or without leaving his name, place or residence, and identifying information — is guilty of leaving after colliding a scene of an accident (LAC) – and upon first conviction will face: 180 days/$1000 fine, and on the second offense would potentially face up to a year/fines not more than $2500 or both if injury is to a person, if damage is to a property or a domestic animal — then the first offense 30 days/$250.00 and second 90 days/$500 fines. In an event that there is an injury to any individual as a result of the accident, then, the law enforcement and 911 must be called and one cannot leave the
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Categories: Uncategorized.

RECENT COURT OF APPEALS DECISION: DISCLOSURE OF JENCKS/DISCOVERY

In Hernandez v. U.S. decided on January 14, 2016, the DC Court of Appeals affirmed the assault charge but remanded for further review by the trial court on the issue of non-disclosure of the Jencks material and whether a new trial would be warranted. Factually, Hernandez was charged with domestic violence assault against his girlfriend. Although she had technically denied the assault, due to some language barriers and other significant independent evidence — the trial court’s findings were affirmed on that issue alone. Specifically, an independent witness had seen the defendant choke Ms. Argueta-Avila/the complainant and then saw her fall to the ground. The Officer at the scene described the complainant frantic, shaken and crying with scratches on her chin and arms. Moreover, the record contained testimony from the complainant that every time he drinks he does this, meaning puts his hands on her. The trial court credited the complainant’s testimony that the defendant grabbed her shirt and pushed her. The trial court recognized that when she had told the police that Mr. Hernandez did not assault her — she meant that he had not hit her, but that legally there was sufficient evidence of assault. However, the Court of Appeals
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Categories: Uncategorized.

Justice Department v. Apple Computer: IPHONE SEARCH AND SEIZURE

In an ongoing criminal investigation, the Justice Department in the Eastern District of NY, on October 9, 2015, requested an order pursuant to all Writs Act, 28 U.S.C. § 1651, to compel Apple to “disabl[e] the security of an Apple device that the government has lawfully seized pursuant to a warrant.” This case has brought to the forefront once again the balancing act between the need from the law enforcement to decode encrypted devices (the going dark problem), prevailing privacy issues, and the lack of Congressional authority to compel third party private manufacturers to cooperate with the government or to design devices not necessarily impermeable. Here in support of their request to the District Court, the government cited and argued the 1977 US Supreme Court (“the New York Telephone”) whereby the telephone company was compelled to install a pen register in their our equipment to cooperate with an ongoing criminal investigation of their facility. The District Court distinguished the facts and circumstances of that case from present facts in that: the order here is seeking information from a device that Apple does not own or have control over whereas in the case cited the government sought information from the company’s
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Categories: Technology law.

RECENT COURT OF APPEALS RULING REVERSING TERMINATION OF PARENTAL RIGHTS (TPR) —

In the recent opinion issued by the Court of Appeals in IN RE D.M.; T.M., (March 13, 2014), the Court once again articulated that when a biological parent is unable to care for his or her child, her choice of a fit custodian must be given a weighty articulated consideration by the trial court. T.M., the biological mother of D.M., appealed successfully her termination of parental rights by the trial court.   She argued on appeal that the lower court erred by “failing to give weighty consideration to the third-party custodial arrangement” she set forth as a placement option and in lieu of termination of her parental rights.  She had proposed her mother in law TM2 as a placement option. Although the child had special needs and behavioral issues, TM2 was willing to care for the child and had taken affirmative steps in that direction: she had completed foster parenting classes, undergone home study by the agency, and was licensed as a foster parent. CFSA did not support mother’s choice of placement reasoning that TM2’s work hours, and the child’s special need, and behavioral issues worked against the placement.  The lower court agreed.  The Court of Appeals reversed essentially stating that
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Categories: Family Law and Uncategorized.

DC ADOPTION PROCEEDINGS

In the District, Child and Family Services (“CFSA”) involved adoptions are both complicated in legal requirements as well as in procedural steps needed to reach finalization.  The legal process starts with filing of an adoption petition, which would generate show cause orders to be served on parents.  Upon service, the parents may either enter a written consent, or contest the proceedings. The adoption petitioner then in a contested proceedings has to prove by clear and convincing evidence that either the biological parents have abandoned or failed to provide financial support for the child for a period of six months preceding filing of the petition or that they are withholding their consent contrary to the best interest of the child.  These elements are generally established through factual witnesses such as the social workers, the petitioners, and in some cases the biological parents. The best interest of child legal criteria in the adoption proceedings triggers court’s analysis of the following factors: 1) The child’s gradual and consistent care and overall integration in the foster home environment.  Evidence again that is either presented through fact witnesses, social worker’s observations etc – or established through a therapeutic relationship/treatment. 2) Physical mental and emotional health
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