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Posted at 01:56 PM ET, 03/28/2012

Councilwoman going more than 100 mph on Beltway could challenge reckless driving charge: legal experts

The Prince George’s County councilwoman who was caught traveling at more than 100 mph on the Capital Beltway last month has pleaded guilty to an unsafe lane change ticket stemming from the incident — a plea that could hamper police’s ability to move forward with the more serious, reckless driving charge, according to independent legal experts.

Online court records show that council member Karen R. Toles (D-Suitland) pleaded guilty to the unsafe lane change ticket on March 5, a day before police reversed themselves and gave her an additional, reckless driving ticket for the Feb. 22 incident. According to legal experts not involved in the case, Toles’s attorney could now move to throw out the reckless driving charge on double jeopardy grounds, essentially by arguing the councilwoman is being prosecuted again for a crime to which she has already pleaded guilty.

“I think you’ve got an argument that you can raise that the conduct is the same, and you’re really putting her in jeopardy twice for whatever the criminal activity was,” said Glenn F. Ivey, a former Prince George’s State’s Attorney who now works at the Venable law firm in D.C.

For now, the defense attorneys’ opinions are speculation. Online court records show Toles has a trial date scheduled for next month on the reckless driving charge, though they do not indicate that her attorney, Rosalyn Pugh, has filed any sort of double jeopardy motion.

Pugh did not return a phone call seeking comment. John Erzen, a spokesman for Prince George’s State’s Attorney Angela Alsobrooks, said prosecutors do not handle traffic violations that do not involve jail time or fatalities, and whether there is a double jeopardy problem would be “up to the judge to decide.”

The circumstances of the case are these. About noon on Feb. 22, a Prince George’s County police officer saw Toles’s county-issued Ford Edge traveling southbound on the Capital Beltway, law enforcement sources have said. The Edge veered across several lanes of traffic as it drove toward the exit for Branch Avenue, the sources have said.

The officer turned on his lights and sirens and followed Toles, law enforcement sources have said. As he did so, his cruiser’s in-car camera showed him reaching speeds as high as 108 mph, sources have said.

When the officer finally reached Toles’s vehicle — which was stopped at a red light at the intersection of Branch Avenue and Auth Road — she drove away again, apparently unaware the officer wanted her to pull over, sources have said. Toles eventually stopped near the intersection of Branch Avenue and St. Barnabas Road, and the officer gave her a ticket for making an unsafe lane change and warning for speeding, sources have said.

Police initially defended the officer’s actions, saying that he had no radar gun to determine Toles’s exact speed and that the equipment in his cruiser was not properly calibrated because he normally works in an administrative job. They said that while the officer had to speed to catch Toles, he did not have enough time or space to determine her pace.

But on March 6 — after commanders and others reviewed the incident — police issued the councilwoman a reckless driving ticket. They said the “totality of the circumstances” led them to file the additional charge.

By that time, Toles had apparently already paid the unsafe lane change ticket, court records show.

Assistant Prince George’s Police Chief Kevin Davis said police did not know that Toles had already paid the unsafe lane change ticket when they issued her the additional citation for reckless driving on March 6. But even if they did, he said, they might have given her the reckless driving ticket anyway. Davis said that while he was not a legal expert in the double jeopardy rules, he considered the unsafe lane change and reckless driving separate offenses.

“The fact of the matter is there were unsafe lane changes that occurred during the course of what we believe to be reckless driving behavior,” Davis said.

To determine if double jeopardy rules apply, that is generally what a judge would consider — whether the reckless driving and unsafe lane change were, in a legal sense, separate from each other, defense attorneys not affiliated with the case said. If the charges were separate, authorities could proceed with the reckless driving case, defense attorneys said. If they were not, double jeopardy rules would kick in and the reckless driving charge would likely be thrown out.

The standard that judges generally use to determine whether charges are separate is called the Blockburger test, a reference to the 1932 Supreme Court case Blockburger v. United States. The test requires that judges ask “whether each provision requires proof of a fact which the other does not.”

The Blockburger test was used prominently in the 1990 Maryland Court of Appeals case G ianiny v. State of Maryland, where the court threw out an automobile manslaughter charge against a man who had already paid a fine for negligent driving. In that case, the court ruled that the state had to prove the negligent driving charge in order to prove the manslaughter charge. Consequently, the court said, the man’s paying the negligent driving fine prohibited prosecutors from charging him with manslaughter on double jeopardy grounds.

Toles’s case, though, might not be so clear-cut, defense attorneys said.

An unsafe lane change could be an element of reckless driving, but police could argue Toles did other things — such as speeding excessively or driving erratically in other ways — that constitute reckless driving, the attorneys said.

“There’s probably a theory that says the reckless driving can be based on conduct separate from simply an unsafe lane change,” said defense attorney Robert C. Bonsib, who is not involved in the case. “The issue is far from certain, depending upon how the facts are developed and the specific nature of the allegations supporting the reckless driving.”

Ivey, the former Prince George’s State’s attorney, said a judge would also have to look at the law itself to determine “if the elements for [unsafe lane change] are all contained in the reckless driving” statute.

“If that’s the case, then it’s a lesser included offense of reckless driving, and they should win on double jeopardy grounds,” Ivey said.

No matter what her defense, Toles does have some incentive to fight the reckless driving charge. A conviction for reckless driving, which carries a $510 fine and six-point license penalty, would push the total points on Toles’s license above eight points and initiate the process to suspend her driving privileges, according to authorities and court records. Before the unsafe lane change conviction — which carries a $90 fine and one-point license penalty — Toles had two points on her license, according to court and state motor vehicle records.

Toles has said previously that she was late for an appointment the day she was pulled over, and that she would not drive a county-owned vehicle until she completed a driver improvement course.

By  |  01:56 PM ET, 03/28/2012

Categories:  Matt Zapotosky, Pr. George's

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