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Jonathan Tishman could have just paid the $60. The ticket – due to improper use of his high beam – did not bring any points. And the 24-year-old data analyst from Germantown, Md. would have been on the road.
Instead, Tishman went online and found a lawyer who thought the whole thing was just as overcooked as he did. And so he and Mark Zaid — a prominent DC attorney better known for representing national security whistleblowers, including the one who was at the center of President Donald Trump’s first impeachment — found Monday in a sparsely-attended traffic court in the Montgomery County District Court Square Afternoon.
“It’s about what’s right, what’s just and what’s fair,” Zaid said before the case was called while he and Tishman waited for the officer to arrive. “It’s also what’s fun for me.”
Zaid did not charge Tishman for the effort and estimated that at his usual billing rate of $600 an hour, he gave Tishman approximately $7,500 in free legal advice. The allegations were as follows:
At approximately 5:48 p.m. on January 17, 2022, Tishman was driving his Nissan Maxima east on the Capital Beltway near Wheaton in the second lane.
A slowing car to his left suddenly cut him off by turning right in front of him, according to Tishman. He slammed on the brakes and flashed his high beams twice — both to warn the driver and out of frustration, Tishman said in an interview.
A soldier who appeared to be behind him turned on his turn signals and pulled Tishman toward him. His offense was listed on the ticket: “Driver’s failure to use multi-beam streetlights at the height required for safe driving.”
For Zaid and Tishman, the case boiled down to the officer’s misinterpretation of the word “use.” The Maryland law that actually governs using high beams behind another motorist was never written to apply to rapid flashes that motorists make all the time, they claimed.
A state police spokeswoman declined to comment specifically on the case, but said flashing high beams in general can be dangerous.
“Flashing high beams when you are too close to another vehicle can be distracting. It can provoke an unintended reaction from another driver and actually make a situation more dangerous,” spokeswoman Elena Russo said.
Zaid represented himself in a similar case in Montgomery County in 2009, when he himself received a ticket for flashing his lights to warn oncoming drivers of what he believed to be a speed trap. He won when a county official failed to appear in court for being drafted into military service.
Zaid’s research did not cover directly related cases in Maryland. But he came into court holding a yellow-highlighted printout of State v. Gardner of the Montana Supreme Court.
In this case, two deputies from the Mineral County Sheriff’s Department Logan pulled over Ray Gardner after he flashed his high beams. The Montana Supreme Court addressed the use of the term.
“Gardner’s momentary flicking of his high beams did not cause the visual impairment that the law prohibits,” the court ruled. “High beam flashing is a common form of signaling from one driver to another: to warn a driver that they have forgotten to dim their lights, or to warn of dangerous road conditions, a traffic accident, or wildlife on the road ahead … If the legislature wanted to ban this common practice, it would have done so more clearly. In the words of the late Justice Antonin Scalia, “legislators do not hide elephants in mouse holes.”
As it turns out, the Maryland police officer for Zaid and Tishman was not in court for their traffic trial. It wasn’t clear why. He turned himself in early on the record but was then forced to testify in another courtroom and never returned.
District Judge Michael O. Glynn III finally asked Tishman how he pleaded – the answer was not guilty – and since there was no testimony against Tishman, the judge found him not guilty. After completing his traffic ticket, he and Zaid discussed informally what the lawyer was willing to argue.
“Now that it’s over, what was it?” Glynn asked.
Zaid told him about the brief flash of high beam and how it was an awfully quick use of “use”. “Just a blink?”
Glynn hinted that he might have seen things differently.
“Well, we would enjoy it,” said Zaid.