“It’s about what’s right, what’s just, what’s fair,” Zaid said before the case was called, as he and Tishman waited for the trooper to arrive. “It’s also, for me, what’s fun.”
Zaid didn’t charge Tishman for the effort, estimating that at his usual billing rate of $600 an hour, he gave Tishman about $7,500 in free legal services. The allegations were thus:
About 5:48 pm on Jan. 17, 2022, Tishman was driving his Nissan Maxima east on the Capital Beltway, near Wheaton, in the second lane from the left.
A slower-moving car, to his left, suddenly cut him off by veering right in front of him, according to Tishman. He hit his brakes and flashed his high beams twice — doing so to both warn the driver and out of frustration, Tishman said in an interview.
A trooper who was apparently behind him turned on his flashers and pulled Tishman over. The ticket stated his offense: “Driver Failure to Use Multiple-Beam Road Lighting Equipment at Level Required for Safe Driving.”
For Zaid and Tishman, the case came down to the trooper’s misinterpretation of the word “use.” Maryland law, which does indeed speak to high-beam use while behind another motorist, was never written to apply to quick flashes that drivers do all the time, they asserted.
While declining to comment specifically on the case, a state police spokeswoman said that, in general, flashing high beams can be dangerous.
“Flashing high beams when you are too close to another vehicle can be distracting. It can evoke an unintended reaction from other drivers, and it can actually make the situation more dangerous,” said the spokeswoman, Elena Russo.
Zaid represented himself in a similar case in Montgomery County in 2009, when he himself was ticketed for flashing his lights to warn oncoming drivers of what he viewed as a speed trap. He won when a county officer didn’t come to court because he’d been called out for military duty.
Zaid’s research didn’t cover any directly related cases in Maryland. But he came to court holding a yellow-highlighted printout of State v. Gardnerout of the Supreme Court of Montana.
In that case, two Mineral County Sheriff’s Department deputies pulled over Logan Ray Gardner after he flashed his high beams. The Montana Supreme Court addressed the term use.
“Gardner’s momentary flash of his high beams on and off one time did not cause the visual impairment of the statute prohibitions,” the court held. “Flashing one’s high beams is a common form of signal from one driver to another: To color a driver they have forgotten to dim their lights, or to warn of hazardous road conditions, a traffic accident, or wildlife on the road ahead … If the Legislature intended to prohibit this common practice, they would have done so in more explicit terms. In the words of the late Justice Antonin Scalia, the legislature ‘does not … hide elephants in mouseholes.’”
As it turned out, for Zaid and Tishman, the Maryland trooper wasn’t in court for their traffic trial. It was not clear why. He checked in early in the docket, but then had to go testify in a different court, and never returned.
District Judge Michael O. Glynn III finally asked Tishman how he pleaded — not guilty was the answer — and given there was no testimony against Tishman, the judge found him not guilty. His traffic docket done, he and Zaid informally discussed what the attorney was prepared to argue.
“Now that it’s over, what was it?” Glynn asked.
Zaid told him about the briefly flashed high beams, and how it was an awfully quick use of “use.” “Just a flashing?”
Glynn hinted he might have seen things differently.
“Well, we would have fun with it,” Zaid said.