Maryland Legislature

Published on: March 9, 2020

Lawmakers Propose Automatic Expungements

As the Maryland criminal code continues to evolve with the times there is an increasing need to address the issue of expungement. Maryland has a fair and user-friendly expungement process, and in most cases, there is no fee to apply. Lawmakers already did away with the $30 application fee for all criminal cases where there was a dismissal, nolle prosequi, STET or PBJ. The one problem with the expungement process though is that most lay people do not realize they are eligible to apply. This is especially true for defendants who were found guilty of offenses that are no longer crimes (such as possession of less than 10 grams of marijuana), defendants with older cases and those who live in other states. This year the legislature is taking steps to assure uninformed defendants can still reap the benefits of the Maryland expungement process. Or better stated, to assure uniformed defendants do not continue to suffer collateral consequences such as difficulty finding employment due to prior criminal charges.

There are two bills in Annapolis that are currently up for debate that would establish procedure for the courts to automatically seal or expunge cases without requiring the defendant to apply. The bill that is currently in the Senate calls for the courts to automatically expunge all older cases involving only the possession of marijuana by October of 2022. The bill would also require expungement of all new marijuana cases to commence 4 years of the disposition date. In cases where there are other criminal counts, expungement of the marijuana counts must be completed by October of 2028. This particular bill has received push back from the Chief Judge of the District Court as well as the Baltimore County State’s Attorney, who have argued that automatic expungement would be too large a burden for the courts and prosecutors to handle. The expungement process requires an answer from the state and multiple orders to be signed and sent to the various organizations that keep records of criminal cases. This includes police departments and the district court clerk’s office, who must then file certificates of compliance after the files are destroyed. Automatic expungement would certainly cause an immense amount of work at one time should this bill become law.

The House of Delegates bill proposes a solution that would require exponentially less paperwork for government offices. This proposal would require the courts to automatically seal prior marijuana cases from public view after an enumerated time frame. The process of sealing would be a matter of simply blocking the case from appearing on the popular Maryland Judiciary Case Search web site. This process is similar to what occurs with older payable traffic citations and civil marijuana citations. The supporters of the bill argue that the main purpose of preventing prejudice against defendants with marijuana cases would be addressed through the sealing process.

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Published on: February 26, 2020

Governor and Lawmakers Spar Over Crime Bills

By Benjamin Herbst

The Maryland governor has not been shy about his strong desire to do whatever is necessary to curb gun violence in Baltimore City, and he recently called out state lawmakers for dragging their feet on enacting stricter gun legislation. Since the 2020 legislative session began in January there have been over 100 shootings in Baltimore City, and each incident is a constant reminder that efforts to reverse the alarming crime rate have been largely ineffective. In response to the violence, three new criminal justice bills were introduced with the unwavering support from the governor himself. The first bill, entitled The Violent Firearms Offenders Act, was designed to increase punishments for certain firearms offenses, and includes brand new mandatory prison sentences for certain crimes. The next bill, The Judicial Transparency Act, was introduced as a measure to hold Circuit Court judges accountable for their sentences in certain violent offenses such as robbery, carjacking, sexual assault, kidnapping, arson and first-degree assault by establishing a database for all sentences handed down in theses cases. The third bill, The Witness Intimidation Prevention Act, was introduced to increase penalties for witness tampering and witness intimidation. All three of these bills allegedly have received overwhelming support from the Baltimore City residents and Maryland residents alike, but all three appear to be going nowhere in Annapolis.

The governor recently expressed his displeasure with the legislature for not jumping at the opportunity to push these bills toward his desk for a signature, but he should understand that not all bills designed to punish criminals are beneficial. It is easy for the public to stand behind a bill that increases punishment for gun offenders, but when minimum mandatory sentences are involved the cost can outweigh the benefit. The Violent Firearms Offenders Act increases the penalty for using a firearm in a crime of violence and adds possession of a firearm as a non-technical probation violation. Both of these provisions seem reasonable, and are not likely causing the legislature to second guess the bill. In our opinion the holdup appears to be related to the establishment of new mandatory sentences for theft of a firearm and for transferring a firearm to a prohibited individual. The bill seeks to add a 2-year mandatory sentence for theft of a firearm and unlawful transfer of a firearm for all defendants, including first-time offenders. These mandatory sentences will not allow the judge to consider all factors such as the defendant’s background, lack of intent to commit a violent crime and age. In essence the mandatory penalty groups all defendants and their cases together, which does not promote a just sentence.

The Judicial Transparency Act takes a degree of autonomy away from judges, and flies in the face of separation of powers. Judges should not have to worry about how their particular sentence would look in a database. They are entrusted with the responsibility to hand down a just sentence based on the facts of the case and the characteristics of the defendant. A database, especially one that will become highly political, will undermine the autonomy of the bench and should not be established. As for the Witness Intimidation Act, we believe this bill will be eventually approved by the General Assembly, though its effectiveness as a deterrent is arguable. The current witness intimidation laws already provide strict punishments.

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Published on: January 28, 2020

Violent Firearms Offender Act Introduced

By Benjamin Herbst

The Maryland Senate and the House of Delegates recently cross-filled the Violent Firearms Offenders Act, and it is almost certain that a large portion of the bill will become law in October. The bill aims to toughen penalties for certain firearms offenses that were seen as too lenient in light of escalating gun violence in Baltimore City and across Maryland. The bill is part of a package of violence prevention initiatives that the governor announced at a press conference last month in Baltimore, which also includes increased penalties for witness intimidation and measures to track the sentencing records of judges in violent offenses.

The Violent Firearms Offenders Act begins by introducing a provision that adds possession or use of a firearm to the list of non-technical probation violations. Normally a person who is on probation would be charged with a crime for possession or use of a firearm, and thus a rule 4 violation, so the issue would be moot. But this provision gives the state an easier path to prove a non-technical violation if criminal charges are not filed, dismissed or placed on STET. If the state shows the defendant possessed a firearm at any point while on probation the defendant could be found in violation and face the full backup time. The bill also includes a section that reclassifies the crime of using a firearm in the commission of a crime of violence from a misdemeanor to a felony. Once again, this is usually not a major issue because the underlying charge will undoubtedly be a felony. On the other hand, it never made sense for an offense with a five-year minimum mandatory penalty like use of a firearm in violent crime to be classified as a misdemeanor, so there is no major argument against the change. This section also adds a ten-year mandatory penalty for anyone convicted of using a firearm in a crime of violence for a second or subsequent time, which shall run consecutive to the sentence for the underlying crime. Mandatory minimum sentences may not be suspended, and the defendant is never eligible for parole.

Perhaps the most impactful change in the Violent Offender Firearm Act is the new provision that adds a mandatory minimum jail sentence for the crime of theft of a firearm. Theft of a firearm is currently part of the general theft laws, and the penalty is dependent on the value of the firearm. Since most guns have a value of less than $1,500, theft of a firearm is usually treated as a misdemeanor with an 18-month maximum penalty. If this bill passes, and we believe it will, come October anyone who is convicted of stealing a firearm (including an antique firearm or replica), faces a felony conviction with a 2-year minimum mandatory penalty. This two-year minimum mandatory penalty is a new sentencing provision in Maryland, and is not applicable to other criminal statutes. The law does specify that any defendant convicted faces the mandatory two-year sentence, so the issue of whether a defendant is eligible or probation before judgment may have to be addressed at some point. Currently there is a 30-day minimum mandatory penalty for wear, carry or transportation of a handgun in Maryland, but it can be avoided if the lawyer argues for, and the judge grants PBJ. The same is true for the 60-day minimum sentence for carrying a loaded handgun. Lawmakers may choose to exclude theft of a handgun from 6-220, which governs when a judge can grant probation before judgment. In Maryland a defendant who is sentenced to a mandatory term of incarceration may serve the time on house arrest, though house arrest sentences rarely extend beyond one year. It will be interesting to see if 2-year house arrests sentences start becoming the norm, as theft of a firearm is not a violent offense and many defendants will be first time offenders. Judges should hesitate sending a first-time non-violent offender to prison for two years.

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Published on: January 6, 2020

Maryland Legislative Session Set to Kick Off

By Benjamin Herbst

The 2020 Maryland legislative session is set to kick off this week and there are a host of criminal law issues that will be debated in Annapolis. While it’s too early to tell exactly the kind of bills that may cross the governor’s desk in April, it’s never too early to speculate what will become a hot topic. One thing we can almost guarantee is that there will be serious debate about whether to legalize recreational marijuana, but it will not actually happen. Medical marijuana took years to develop, and even when it passed it was a shell of the flourishing program that exists today. Recreational marijuana will likely follow the same arduous course toward implementation, as it does not appear that lawmakers are in any type of hurry.

With respect to criminal law, there are definitely more pressing issues that will be debated in the next couple of months. We expect to see numerous bills related to Maryland gun laws, with some directly targeted at reducing the critical violent crime epidemic in Baltimore City. The governor has expressed a great deal of frustration over the gun violence in Baltimore and has already dedicated millions of taxpayer dollars to multi agency crime suppression initiatives. But the fight will not stop at money and manpower, as we expect stricter gun legislation to be up for debate this year. The Maryland gun laws are already tough, but generally speaking it is the law-abiding citizens that are most impacted by the state’s strict firearm regulations. New laws increasing the minimum mandatory penalty for certain gun crimes may show up in Annapolis, as well as bills requiring background checks for rifle and shotguns purchases. Rifle and shotgun buyers are currently only required to fill out the federally mandated ATF weapons purchase application, and are not required to submit to fingerprinting and background checks. It is unclear whether this requirement will directly correlate to crime reduction though, as the large majority of gun violence involves the use of handguns.

There has been a persistent push to liberalize the concealed carry permit policy in Maryland, and 2020 may be the year where process is scrutinized. A law-abiding resident currently has to prove to state authorities that he or she has a good and substantial reason for seeking a concealed carry permit, which unequivocally reduces the number of citizens with permits. The requirements in neighboring states like West Virginia and Virginia are far more liberal, and there is zero evidence that this has contributed to increased incidents involving handgun use. On the contrary, it is widely argued that more law-abiding citizens with concealed carry permits could actually lower the crime rate, and potentially limit the severity of public incidents involving weapon violence.

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Published on: November 19, 2019

Marijuana Definition Change Could Lead To Dismissed Charges

By Benjamin Herbst

This past summer the Maryland Governor signed off on a bill that changed the definition of marijuana, and now the impacts of this bill could have a real effect in courtrooms across the state. The bill did not receive much media attention despite the fact that it was marijuana related because the bill was created with the intent to modify agricultural laws rather than continue to reform marijuana policy. House Bill 1123 was signed into law back in April, and went into effect on June 1, 2019. The bill was characterized as agricultural and focused on hemp research and production. It had numerous components, but the main emphasis was to expand hemp production and establish safeguards for assuring that hemp and marijuana remained two separate crops.

In order to separate hemp and marijuana, which is still highly regulated in Maryland and a controlled substance under federal law, the state legislature had to strictly define the meanings of the two crops. Lawmakers came up with a threshold amount of 0.3% THC to separate the two; any cannabis plants with a THC level above 0.3% would be classified as marijuana while anything under would be classified as hemp. In establishing this threshold, lawmakers not only changed the agricultural laws but also were forced to modify the Maryland controlled dangerous substance laws. Under criminal law section 5-101, marijuana does not include hemp for the purpose of criminal prosecution. Hemp as defined in section 14-101 of the agriculture code “means the plant Cannabis sativa L. and any part of that plant, including all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta–9–tetrahydrocannabinol concentration that does not exceed 0.3% on a dry weight basis”. This fancy language boils down to the fact that cannabis plants that do not have a THC over 0.3% are not marijuana for the purpose of a criminal prosecution, and the impacts of this clause could be huge.

In all drug crimes cases the state is required to prove beyond a reasonable doubt that the substance that is the basis of the charging document is actually what the police say it is. It is not proof beyond a reasonable doubt for an officer to simply look at a substance and say that it is cocaine, heroin, marijuana etc. The state has to test the substance police take in evidence, and this is traditionally done is by sending it off to the crime lab at the Maryland State Police in Pikesville or the city’s lab in Baltimore. Chemists do their tests and send a lab reports to the prosecutor, which are then introduced into evidence as proof the substance is CDS. But, the kicker is that the crime labs do not test marijuana for THC content, so now there might not be a way for the state to prove beyond a reasonable doubt whether the green vegetable matter police confiscated from your plastic baggie, jar or personal grow room is marijuana or hemp.

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Published on: April 11, 2019

Legislative Session Ends Without Fireworks

By Benjamin Herbst

The 2019 Maryland legislative session has come to an end, and unlike previous years where marijuana was decriminalized or mandatory prison sentences for certain drug offenses were effectively discarded, there will be no drastic changes to the criminal code come October. While not headline makers, lawmakers did successfully address some minor offenses such as gambling and possession of alcohol, and changes are on the horizon. We previously wrote about a bill that proposed to decriminalize small time gambling, which in our opinion was long overdue. With state casinos booming, and sports betting on the verge of becoming legal in Maryland it really makes zero sense to impose criminal sanctions on citizens engaged in unlawful gambling. Both houses agreed and passed the bill that will now punish illegal gamblers with a civil citation and a fine, rather than a potential misdemeanor conviction and jail time. Anyone caught running an unauthorized casino or taking bets as a bookie still faces criminal liability, though lawmakers did away with the archaic 6-month mandatory minimum penalty. The maximum fine for civil gambling offenses will be $500 if less than $100 is at stake or $1,000 if more than $100 is at stake. Illegal gambling cases were not common to begin with, but now police will be even more motivated to look the other way.

Lawmakers also passed legislation that will make consumption of alcohol in public and possession of an open container a civil infraction rather than a criminal misdemeanor. The $100 fine will remain the same, but offenders no longer run the risk of a criminal conviction for drinking a beer, wine or liquor in public. This bill does not directly impact citations for minors in possession of alcohol, which will remain a civil infraction with a potential $500 fine for a first offense. Each of these civil infractions may be prosecuted by the local State’s Attorney’s Office, which is generally a good thing. The SAO has the ability to offer some sort of pre-trial diversion such as community service or alcohol education in exchange for a dismissal, while a district court judge has no such ability. The passage of this bill may affect the way open container violations are handled in local jurisdictions such as Ocean City. Previously public consumption or possession of an open container of alcohol was punishable by jail time in Ocean City, and police officers of this popular summer destination had the authority to arrest those, who for example were leaving Secrets with a drink in their hand. The Blog will pay attention to the local code to see if the city counsel is forced to make any changes to the existing laws regarding alcohol.

There was a lot of talk before the 2019 session began that the threshold of criminal possession of marijuana would be raised from 10 grams to one ounce (28 grams) but this change may not be on the immediate horizon. In addition to raising the lawful possession threshold, a Montgomery County lawmaker also proposed to allow adults over the age of 21 the right to use marijuana, to possess up to 5 grams of marijuana concentrates, and to cultivate up to 6 marijuana plants in their homes. The proposal was in the form of a constitutional amendment that would be put to a vote in this year’s general election.

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Published on: April 5, 2019

Lawmakers Raise Tobacco Age To 21

By Benjamin Herbst

While marijuana laws have changed drastically over the last several years the legislature has largely avoided the subject of tobacco. The state has regularly raised taxes on cigarettes and other tobacco products in order to dissuade use, but no major tobacco legislation has crossed the governor’s desk in years. That will change this summer, when the governor will be presented with a bill that effectively raises the age of lawful tobacco use from 18 to 21. The proposed law will modify section 10-107 of the Maryland criminal code, which currently makes it illegal to sell or distribute tobacco products to a minor under the age of 18. Under the new law a person could be subject to criminal charges for selling, or otherwise distributing tobacco products to anyone under the age of 21, unless the person is a member of the United States Military. There is no current proposal to address possession of tobacco products for those under the age of 21, but such legislation could be proposed in the future. If the legislature decides to address underage possession of tobacco it would probably be in the form of a civil citation, much like the current offense for underage possession of alcohol.

It is safe to say that traditional cigarette smoking was not the main target of this piece of legislation, but rather vaping that was the objective. The popularity of vaping has spiked dramatically over the past few years due to the technological advances of electronic cigarettes. These devices are discrete and easy to use, and can be charged via USB outlets that are the used with almost every cell phone. Electronic cigarette smoke can contain high amounts of nicotine and offer the smoking sensation without the lingering stale smell, and cartridges come in hundreds of different flavors. The CDC recently reported that more than 20 percent of high school students have tried vaping in the last month, compared to about 1.5 percent in 2011. Additional studies have shown that raising the tobacco use to 21 could dramatically reduce e-cigarette use among high school students, and Maryland lawmakers have taken notice.

The new tobacco law will likely go into effect in October, and enforcement should be expected immediately. Shop owners and employees could face a misdemeanor conviction and hefty fines for violating the new law. A first offense carries a maximum penalty of a $300 fine, but repeat offenders face a $1,000 fine after that. A third offense within 2 years and any subsequent offense after that carries a massive $3,000 fine, which will surely cause tobacco dealers to think twice before selling. This offense is not a strict liability crime, as lawmakers included a provision that allows for an affirmative defense. If upon purchase, a valid form of identification was presented that positively identified the purchaser as over the age of 21 then the seller may not be found guilty of violating the statute. This seems to protect sellers in fake ID cases, as a store clerk should not reasonably be expected to be an expert in facial recognition. Under the law, sellers would be required to card anyone who appears under the age of 30, and businesses would have to present new signage that states nobody under the age of 21 is permitted to purchase tobacco products. Electronic cigarettes and other smoking devices are considered tobacco products, so the new law would likely prevent anyone under the age of 21 from making a purchase at or even entering the local smoke shop.

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Published on: February 22, 2019

Criminal Gambling Laws Overdue For Change

By Benjamin Herbst

As it became more likely that medical marijuana would soon be legal in Maryland, lawmakers simultaneously realized they needed to modify the criminal laws regarding marijuana possession. Amongst other reasons, it just didn’t make sense to subject a person to criminal prosecution and possible jail time for possessing a substance that was about to become legally available. We recently published an article about the possibility of sports gambling becoming legal as early as this year, and following the path of marijuana, lawmakers in Annapolis are already proposing to alter the criminal laws regarding gambling.

The Maryland gambling laws are strange to say the least, and it doesn’t seem like they have been given much attention over the years. Gambling is not a common crime because save for some large scale book making operations or home casinos the police seem to have better things to do with their time than bust March Madness pools and small time poker games. Plus most people including police officers, prosecutors and judges, have taken part in some form of social gambling in their lives. Still, it is not out of the question for an unlucky gambler to be made an example of just to remind the rest of us that until it’s legal it’s illegal.

The few unlucky defendants that are prosecuted under Maryland state gambling laws are usually surprised to learn that all forms of gambling are grouped under one law. Section 12-102 of the criminal code makes it illegal to bet, wager and gamble. This same section also makes it illegal for a person to sell a book (take bets), run sports pools and keep an underground business where gambling takes place. Logic would dictate that those who are running underground casinos and taking bets would face harsher penalties than the gamblers themselves (similar to drug use/possession vs. drug distribution) but this is not the case. All forms of gambling in Maryland are punishable by the same 1-year maximum penalty, and have a completely harsh and archaic 6-month mandatory jail sentence. Yes, you read that correctly- gambling convictions carry mandatory jail time, which is six times greater than the mandatory jail time for wear, transport or carry of a firearm under 4-203.

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Published on: February 14, 2019

Marijuana Still Looming Large In Annapolis

By Benjamin Herbst

Marijuana has been a major issue for state lawmakers in almost every recent legislative session, and this year is shaping up to be no different. Despite all the progress over the last five years in crafting state marijuana policy there are still numerous key issues that have yet to be settled. Without a doubt the headliner is the legalization of recreational use, but realistically 2019 does not appear to be the year where it’s going to happen. Legalization aside, there are still smaller points that need to be addressed, and many will be debated in Annapolis over the coming weeks.

One of the most common questions defendants ask is whether their probation can be violated for testing positive for marijuana. The simple answer is that a positive THC test can subject a defendant to a violation of probation, but what happens after a violation is submitted depends on a variety of factors. A standard condition of all Maryland probation sentences is that the defendant shall not illegally possess or use controlled substances, and marijuana is still a controlled substance in our state. A defendant who does not have a state medical cannabis license could easily be subject to violation of probation sanctions for a positive test, or even a civil possession citation. Obtaining a medical license could create a defense that the marijuana was possessed and used legally, but the idea for medical users is not to be violated in the first place. Licensed medical patients may be better off informing their probation officer ahead of time, rather than attempting to explain a positive test after the fact. The flip side is the argument that being a medical cannabis patient is protected health information that defendants should not be required to disclose. The reality is that probation officers and the courts have bigger things to worry about, and lawmakers have taken notice.

Rather than continue the back and forth over a substance that will likely become legal in 2020 one lawmaker has introduced a bill that would bar a positive marijuana test from being considered as violation of parole, probation and pre-trial release. There are exceptions to this rule such as when the judge specifically orders the defendant to abstain from the use of marijuana, but overall this law would clear up a great deal of confusion and alleviate an unnecessary burden on the courts. The same bill also proposes that the threshold for a criminal versus civil infraction for illegal possession of marijuana be increased from 10 grams to 1 ounce (28 grams). This proposal has been debated in other legislative sessions, and almost became law last year. Though it may not end up being a hugely impactful change, certain lawmakers have repeatedly questioned the arbitrary nature of a 10-gram limit. This bill also includes language creating a presumption that possession of less than an ounce does not support a felony charge for possession with intent to deliver, but the State could rebut this presumption with specific evidence of dealing.

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Published on: January 22, 2019

2019 Legislative Session Underway

By Benjamin Herbst

The 2019 Maryland legislative session is officially underway, and once again gambling and marijuana are set to take stage as two of the highest profile issues this winter. Healthcare, minimum wage and clean energy will grab occasional headlines, but the Blog will stay in its lane and only offer commentary on the criminal related issues set for debate in Annapolis. Marijuana seems like the less complex of the two criminal law topics because there’s really only one major question, to legalize or not to legalize. There is no doubt that recreational marijuana will one day be legal in Maryland, but it’s far too early to tell if this is a realistic possibility in 2019. Those who have been following the slow progress of state cannabis law believe 2020 is the more likely year for recreational sales to debut. Legalizing recreational use will certainly not be the only marijuana issue up for debate, as lawmakers will be forced to deal with lingering medical marijuana questions such as limiting the ability of large national corporations to buy out or undercut local grow operations and dispensaries. There will also likely be a host of issues tossed around pertaining to the number of grower and dispenser licenses that are available, and when these licenses can be issued.

As usual, the Blog will stay on top of all things cannabis in this year’s legislative session, but sports gambling may actually produce more headlines coming out of Annapolis. Maryland clearly missed the boat on taking advantage of a recent Supreme Court decision that made it unconstitutional to prohibit states from offering legalized sports gambling. New Jersey and neighboring Delaware were ready to pounce as soon as the decision came down, and their sports books were up and running within weeks. Both states have been raking in tax revenue for almost a year now, and casinos and racetracks in these states will be jam packed on Super Bowl Sunday (likely with a number of Maryland residents). In order to make up for the lack of foresight of previous lawmakers this year’s Senators and Delegates may try their hand at bending the State Constitution to legalize sports gambling earlier than once thought possible.

The State Constitution specifies that major expansion of commercial gambling must be a decision left up to voters by way of a referendum. The last referendum took place in 2012 when voters approved table gaming such as blackjack and poker and green-lit the new MGM National Harbor Casino in Prince George’s County. There were no gambling referendums in 2018 and the next chance to hold one will be in 2020, though many feel this is too long to wait due to the amount of revenue at stake. One potential solution could be to place sports gambling under the control of the state lottery, and treat wagering as just another lottery game. But taking bets on the Patriots to win the AFC is much different than selling Ravens scratch-off tickets, which is why the proposal could end up sparking intense litigation. And even if this lottery idea passes the General Assembly and is signed by the Governor, there is no guarantee that any bets will be placed before a potential 2020 referendum, as implementing new programs quickly and efficiently is not one of Maryland’s fortes. There are too many regulatory issue to be hammered out, and simple questions such as where betting would take place and potential tax percentages are yet to be answered.

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