Criminal Defense Lawyer Blog

Published on: February 8, 2019

When Can A Case Be Expunged?

Maryland offers an extremely just and reasonable expungement process for defendants who have been charged in criminal, serious traffic and civil citation cases. And, while the application process is fairly simple and now free, the hardest part can be figuring out if the case is eligible for expungement in the first place. There are some simple rules that we’ll start with, but keep in mind that even the simple rules have exceptions. Remember the one exception that trumps all the other exceptions is that a judge may grant a petition for expungement at anytime upon a showing of good cause, so hope is never lost if your case doesn’t qualify.

The most common scenarios when a defendant may be eligible for expungement are when their case results in a probation before judgment, nolle pross. dismissal, STET, acquittal or not guilty verdict. Criminal cases based on violations that are not longer illegal (possession of marijuana under 10 grams) are also eligible regardless of the outcome. The timing for when the case is eligible varies greatly. Dismissals, not guilty verdicts, nolle pross., acquittals and law change cases are immediately eligible for expungement unless the defendant is currently a defendant in another criminal proceeding. This is obviously a major exception, and there is really no logical reason for this exception other than to take a shot against those who are supposed to be presumed innocent. Former defendants with no current matters whose cases got dropped can file for expungement right away at the court where the case ended. A minor exception is defendants that receive a conditional nolle pross. (common in Montgomery County) must satisfy the conditions first.

Cases that end in a probation before judgment are eligible for expungement 3 years after any sentence or period of probation ends. The three years clock rarely starts from the last court appearance, so a little record searching may be in order in cases where a defendant serves a split sentence. A major exception is that DUI and DWI cases are not eligible to be expunged in Maryland when the defendant receives PBJ. This was not always the case, but the DUI lobby is strong and the laws continue to become stricter. Another major exception is that a defendant can lose the ability to expunge a PBJ if he or she is convicted of a crime within three years after receiving that PBJ. A new conviction can’t reopen a closed PBJ case but it can definitely make it permanent. Cases that end in a STET are eligible for expungement three years from when the STET began. If there are conditions such as drug and alcohol treatment they must be satisfied before an expungement can be granted.

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Published on: January 30, 2019

Baltimore City Prosecutor Ditching Pot Possession Cases

By Benjamin Herbst

Baltimore’s top prosecutor recently announced that her office will no longer prosecute marijuana possession in the city effective immediately, and additionally will vacate nearly 5,000 prior possession cases dating back to 2011. The announcement, which was posted on the Baltimore City State’s Attorney’s website has already generated national headlines. Both CNN and the New York Times have published articles about the announcement, and local news stations were on hand to televise a follow-up press conference. The 39-year old chief prosecutor stated that pursuing marijuana possession cases offers no public safety value, erodes public trust and diverts valuable police resources away from more important cases. Additionally she stated there is no association between marijuana possession and violent crime, and that these possession cases disproportionally targeted communities of color. The office will continue to prosecute distribution and possession with intent to distribute marijuana cases as long as there is additional articulable evidence of dealing. Each of these crimes is a felony under Maryland law, but first time offenders in Baltimore City will now be offered diversion and given the opportunity to have their cases dismissed and expunged.

While some members of the community lauded the prosecutor’s decision, other government officials didn’t just jump onboard with her plan. In the press conference the prosecutor called on the local law enforcement community to join in and focus their attention and resources on violent crime, but the city’s top cop didn’t bite. The interim police commissioner publicly voiced his disapproval of the State’s Attorney’s plan, and declared that his officers will not be directed to discontinue arresting or citing individuals for possessing marijuana in the city. The interim top cop, who will be replaced in the coming months by an out of state successor, said in no uncertain terms that his officers will continue to enforce state marijuana possession laws. He went on to say that the last thing the city needs is another illegal substance, and added that he and his colleagues absolutely see a link between violent crime and marijuana. The interim commissioner didn’t explain how the two are linked other than to say that his commanders see it all the time in Baltimore.

There is little doubt that police officers in Baltimore and throughout Maryland have deemphasized marijuana possession cases. Law enforcement still uses pot as a means to gain access to vehicles and justify searches of a person, but there are fewer possession cases showing up in court. The fact that the interim police commissioner came out so strong so soon against the City State’s Attorney seems more like a defense of the department’s autonomy. The commissioner in essence was stating that no lawyer could tell him and his officers which laws to enforce and which laws to ignore. Logically speaking, there is absolutely no reason why a city cop should charge someone with possession of marijuana if the case won’t be prosecuted. It would be hard to find a worse way to spend tax payer dollars and tie up police resources than to charge someone in a case that will undoubtedly be dismissed, but politicians will be politicians. And speaking of politicians, the Mayor came out with a statement that unsurprisingly supported both sides and avoided offending either. Rather than take a stance the Mayor’s office played politics and stayed neutral.

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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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Published on: January 15, 2019

Baltimore City Crime Prevention Plan Announced

By Benjamin Herbst

The Governor of Maryland recently introduced a host of forthcoming law enforcement initiatives specifically aimed at reducing violent crime in Baltimore City. Baltimore’s violent crime rate has been trending in the wrong direction for years, and is a constant source of concern for residents, visitors and those who conduct regular business in the city. Putting all the embarrassing national news headlines aside, the bottom line is that people just don’t feel safe in Baltimore. While the Governor has shown discretion by not outwardly blaming the city’s leadership, it’s clear from his actions that he has no faith the local government can do what it takes to reverse this disturbing trend. The city’s leadership does not even appear to be directly involved with the creation or implementation of these new initiatives, which include the formation of violent crime joint operations center downtown.

The joint operations center will serve as home base for upwards of 200 new law enforcement officers from sixteen agencies and seven law enforcement task forces such as the FBI, DEA, ATF and the U.S. Marshals. The Baltimore Police and the State’s Attoney’s Office will also have a presence in the center, in addition to a special operations unit of the Maryland State Police. With all these new law enforcement officers pounding the pavement there will certainly be hundreds of new cases to prosecute, but if you think the Governor simply planned to hand all these cases over to the local prosecutor then think again. The Governor wants many of these cases to be handled in federal court, and is doing so by expanding the reach of Project Exile, a program where city gun crime offenders are prosecuted in federally. The feds are not footing the entire bill for the increased workload, as the Governor actually pledged state money for the sole purpose of hiring more federal prosecutors to prosecute violent crime in the city. Federal sentencing guidelines are harsher with respect to violent offenses and crimes involving firearms, and the U.S. Attorney’s Office is notorious for high conviction rates. A defendant is far more likely to serve significant prison time in the federal system due to mandatory sentences and no parole.

The governor also announced greater funding for victim and witness relocation programs, which will increase the likelihood that state and federal prosecutors will have their witnesses ready and available when it comes time for trial. Violent crime cases are routinely dismissed due to witness unavailability, and this has become a major issue in Baltimore City for state and federal prosecutors alike. Another announcement from last week was the introduction of the Repeat Firearms Offenders Act of 2019, which will double the minimum mandatory prison sentence from 5 years to 10 for those convicted of felon in possession of a firearm. This law was modified a few years ago to make the mandatory sentence discretionary if the disqualifying crime and any punishment (including probation) ended more than 5 years prior to the new incident date. The effectiveness of mandatory minimum sentences is arguable, but politicians love them so they’re here to stay.

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Published on: January 8, 2019

Package Thief Arrested

By Benjamin Herbst

Online shopping has never been more popular, but the convenience can come at a price. Like the old days, the preferred method of delivering a package to a single family home or townhouse is simply to leave it at the front porch. The inherent flaw of placing potentially valuable packages in plain sight of those walking or driving by is outweighed by the cost of repeat delivery attempts for companies like Amazon and UPS, and the unfortunate result is that package theft has become commonplace. We blogged about a string of package thefts in the Pikesville area of Baltimore County a few years ago, but until now this crime of opportunity has largely stayed out of the news. Last month a package theft in Harford County made national headlines, but not for the reasons you might think.

On November 30^th a five-year old girl was caught on camera taking a package from the front porch of another person’s Abingdon home, and the video quickly spread throughout the country. As you might expect, the girl appeared to be looking off to her side at someone for direction, and this someone was revealed less than 2 weeks later after an anonymous tipster identified the young girl. Police filed charging documents for a 46-year old Baltimore man on December 14 and a warrant was issued for his arrest that same day. There are currently four charges including theft, conspiracy to commit theft and 4^th degree burglary. The defendant was also charged under the Courts and Judicial Proceedings Article for contributing to certain conditions of a child, which makes it a crime to encourage a child to commit an illegal act. This offense carries a 3-year maximum penalty and a $2,500 fine.

Fourth degree burglary is charged when a suspect either breaks and enters a dwelling (home) or store, or is alleged to have entered the yard or garden of a dwelling with the intent to commit a theft, like in this case. This is the only misdemeanor burglary offense, and it carries a 3-year maximum penalty. First, second and third degree burglary are all felonies with maximum punishments ranging from 10 years to 25 years if violence is involved. The suspect in this case was charged with theft less than $100 because the package he stole contained a pair of boots valued around $90. This offense carries a 90-day maximum sentence, as does conspiracy to commit theft less than $100. The conspiracy charge is peculiar from a legal standpoint, as the State would basically be saying the defendant conspired with a 5-year old. This charge will almost certainly be dropped by the State.

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Published on: December 31, 2018

Former Police Commissioner Pleads Guilty To Tax Evasion

By Benjamin Herbst

Almost one year ago the Baltimore Police Department welcomed a new commissioner with high hopes he would be the one best suited to reverse the rising crime rate and restore the department’s reputation in the community. The department had become a nationwide embarrassment after numerous officers were convicted in severe cases of corruption, which included the armed robbery of citizens. There were also lingering allegations that the department unjustly targeted minority suspects, and also ignored service calls in the city’s most dangerous areas. At the time the Mayor was convinced her candidate for commissioner could begin to repair all the damage, but this vision came to an abrupt end four months later after the former top cop resigned amidst federal tax evasion charges. Recently the ex-commissioner pled guilty to those charges in a federal courthouse just a few blocks away from his former office atop police headquarters.

According to the Department of Justice the former commissioner pled guilty to three counts of failing to file individual federal tax returns in 2013, 2014 and 2015. Pursuant to the plea agreement the ex-cop also admitted to substantially reducing the amount of taxes withheld from his salary each year by claiming extra allowances and deductions. He went as far as claiming mortgage interest deductions and deductions for local property taxes when he didn’t actually have a mortgage or own any real property. He claimed business losses without owning any businesses, which all served to reduce the amount of taxes owed to the IRS and the State of Maryland. Additionally, the defendant did not file his 2011 and 2012 tax returns until 2014, and cooked the books when he did file in order to unlawfully save money. The former commissioner’s tax issues cost him his job back in May, and now they may cost him his freedom come March when the case is set for sentencing. Each of these charges carries a $100,000 fine and up to one year in prison. There will also be $67,587.72 in restitution that must be paid to the federal and state governments.

As a first time offender the former top cop will is unlikely to face a lengthy jail sentence for these misdemeanor offenses. On the other hand the judge will balk at any argument that the defendant simply “made a mistake” as the Mayor once characterized it. This was an ongoing course of conduct, and the continuous misrepresentations showed a certain degree of knowledge and intent. If the conduct was believed to have been a mistake or even straight ignorance the U.S. Attorney’s Office probably wouldn’t have charged the former police officer in criminal court. And even if the feds brought charges, if not for the recurring misrepresentations federal prosecutors likely would have entertained some sort of deferred prosecution agreement instead of going after three convictions.

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Published on: December 22, 2018

Lawmakers Pass Federal Prison Reform

By Benjamin Herbst

Maryland is notorious in the region for its harsh gun laws, but overall has a fairly liberal criminal justice system compared with other states and especially the federal government. Two years ago Annapolis lawmakers passed sweeping criminal justice reform that eliminated most mandatory prison sentences for drug crimes and lowered the maximum penalties for dozens of offenses. The Judicial Reinvestment Act will save the state millions of dollars by significantly reducing the prison population, and a good chunk of these savings will be invested toward treatment and reentry programs. Not all defendants in Maryland have been able to reap the benefits of the JRA though, as it does not apply to federal cases. To the contrary, federal defendants continue to face harsh penalties for non-violent drug crimes, and often even sympathetic judges have their hands tied at sentencing. As a result federal prisons are filled with inmates serving archaic mandatory sentences, but finally lawmakers have decided to do something about it.

The First Step Act recently passed by a wide margin in the U.S. Senate, and is expected to be signed into law fairly soon. While not as powerful as the JRA, the First Step Act is expected to significantly lower the federal prison population and allow judges more discretion by eliminating or reducing some mandatory sentences. It will also redirect money once spent on keeping defendants behind bars to establishing rehabilitation programs to prevent recidivism. The federal strikes laws are responsible for some of the most unjust prison sentences in the entire country, as a three-time drug offender faces mandatory life in prison upon conviction. While the strikes laws won’t be entirely scrapped, the Act will reduce the mandatory penalty from life to 25 years for a third strike and from 20 years to 15 years for a second strike.

The Act will also provide more opportunities for inmates to earn good behavior credit to reduce their stay, and allow offenders serving time for distribution crack cocaine to petition the court for sentence modifications. In 2010 the federal laws regarding crack were changed to mirror powder cocaine laws, but defendants convicted prior to 2010 were not permitted to take advantage of these changes retroactively until now. This provision alone could result in the imminent release of hundreds of prisoners that have been unfairly serving lengthy sentences. There are currently around 2,600 inmates serving time under the old crack cocaine law that was a shameful product of the war on drugs. The First Step Act is estimated to reduce the federal inmate population by around 50,000 over the coming years. This is a huge number considering there are currently around 200,000 federal prisoners, which translates to about 10 percent of the total U.S. prison population.

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Published on: December 12, 2018

Holiday DUI Patrols Producing Arrests

By Benjamin Herbst

Holiday DUI patrols have been operational in Maryland for years, but until recently many of these enhanced law enforcement efforts have taken place on the Eastern Shore during the summer months. Memorial Day and Labor Day weekends along with July 4^th have traditionally drawn the most attention of various police departments including the State Police. These law enforcement agencies run DUI checkpoints and deploy extra patrol officers during the nighttime hours in an effort to deter drunk driving and enforce the laws when the message doesn’t register. When a special holiday task force is operational it typically produces a greater number of arrests that a normal weekend, but this is expected as more law enforcement resources are in use. Before we begin a cost benefit analysis of drunk driving task forces, we’ll stop and say the purpose of this post is simply to point out that they are becoming more common throughout the state and coming to a county near you this holiday season.

Various law enforcement agencies in Montgomery County are about to begin their fifth weekend of the local DUI holiday task force, which has already produced close to 200 drunk driving arrests. This particular task force is made up of officers from the state and county police and the local police departments of Rockville, Gaithersburg and Takoma Park. Officers from the Maryland National Capital Park Police are also participating in the task force on the stretches of Montgomery County highway that are within the jurisdiction of federal law enforcement such as the Clara Barton Parkway. These agencies are not limiting their activity to standard proactive road patrols, rather they are also running sobriety checkpoints and compliance checks of local business that sell alcohol. Additionally law enforcement has also taken a more aggressive stance in issuing citations to adults that have allowed minors to consume alcohol on their property. Under Alex and Calvin’s law (section 10-119 of the criminal law code) adults who host parties where alcohol is served to minors face fines of up to $2,500 for a first offense and $5,000 for a second or subsequent offense. These citations are not considered criminal, but failure to pay could result in a criminal contempt charge that carries jail time. Additionally a conviction for one of these civil citations could become part of the permanent court record, which could lead to adverse consequences for the defendant.

Drunk driving has been an especially contentious issue in Montgomery County for the last few years, and for good reason. In 2015 a young law enforcement officer was killed by a repeat DUI offender, which led to the state enacting a law requiring installation of the interlock device for offenders. The engine interlock device is viewed as one of the most effective means to curtail impaired driving by lawmakers, prosecutors and judges alike. The device also spares defendants the possibility of losing their ability to drive, which in Maryland can be crippling due to the shortcomings of public transportation. The obvious downsides of the device are the high cost, frequent malfunctioning and embarrassing look, but most would agree that it’s worth it to be able to drive legally. The Montgomery County task force will continue to operate until January 5, 2019 and the Blog may post a follow up article after the final data on the program is released. If you or a loved one has been charged or arrested for any traffic offense in Maryland feel free to contact DUI lawyer Benjamin Herbst anytime for a free consultation. Benjamin specializes in representing out of state defendants, repeat offenders and drivers charged with federal DUI by the Park Police and other federal law enforcement agencies.

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Published on: December 6, 2018

Medical Marijuana Sales Shattering Expectations

By Benjamin Herbst

Just one year ago dozens of medical marijuana patients lined up outside a Montgomery County dispensary to make the first legal pot purchases in Maryland. This past Saturday marked the official one-year anniversary of those historic medical cannabis sales, and business is now booming for the industry. The Maryland Medical Cannabis Commission or MMCC originally estimated first year sales to total $46 million, but now it looks like their prediction was off by a wide margin. After posting modest revenue of $1.8 million in the launch month last year, revenues then increased dramatically each month thereafter. January produced $2.6 million in revenue, February jumped to $3.8 million, and March to $5.5 million. This August and September both produced total revenues over $10 million and the numbers continue to climb. At this point it is a not so conservative estimate that sales for 2018 will top $100 million, more than twice the number thrown out by the MMCC.

The revenue prediction from the MMCC was hardly a guess and likely based on data such as polling of potential patients and comparing revenues from other states. Though regardless of their scientific approach it’s easy to see how the state drastically underestimated the power of its own program. Most people just don’t want to talk about their marijuana use to those outside their close circle of friends, and they especially don’t want to discuss it with the government. Unfair as it is, there is still a major negative stigma attached to marijuana that alcohol has managed to avoid. In America it’s still perfectly acceptable to have a few beers after work, but take a puff or two and all the sudden you are a drug user. Numerous private companies and government agencies have drug polices that prohibit marijuana use, and a soldier can easily be kicked out of the military for casual consumption. While half the states have legalized medical cannabis, the professional world hasn’t caught up, thus it’s still not completely acceptable to use this natural product with medicinal value. Patients and social users still have much to lose by talking freely about their use.

Other reasons for the staggering revenue reports have to do with geography, as Maryland is surrounded by states to the south that have not yet fully embraced the medicinal value of cannabis, and will likely be some of the last to allow legal use. Virginia and North Carolina technically have medical marijuana programs, but access is more difficult and may be limited to CBD and low THC products. Maryland allows out of state residents to obtain a license and make purchases, and the process is not difficult or expensive. In addition to physicians, nurse practitioners, dentists and other professionals have the authority to prescribe medical cannabis and many do not require lengthy and comprehensive evaluations. The state has made it quite simple to obtain approval to purchase.

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Published on: November 30, 2018

Former Postman Sentenced In Drug Conspiracy

By Benjamin Herbst

A former letter carrier for the United States Postal Service was recently sentenced in federal court for his role in a drug conspiracy that spanned from the West Coast to Bethesda, Maryland. The 49-year old postman received a sentence of 4 years in prison followed by 3 years of supervised probation for the crimes of conspiracy to distribute and possession with intent to distribute cocaine. In total the feds linked the former USPS employee to 5 kilograms of cocaine, which according to law enforcement has a total street value of approximately $187,600.

According to the guilty plea that the court accepted a few months prior the ex-postal worker conspired with business associates on the West Coast to send multiple packages containing cocaine from California and Nevada to Maryland. The packages were shipped via U.S. mail and destined for addresses on the defendant’s Montgomery County mailing route. This investigation began back in September of 2016 though federal law enforcement seems to believe it had gone on longer. In April of 2017 a postal inspection service drug detection dog made a positive hit on five packages that were yet to be delivered, and the inspectors sought and received a search warrant. Upon opening the packages the inspectors discovered that all five contained one kilogram of cocaine packaged in the same manner. The addresses were valid Bethesda locations, but the names associated with the addresses were fake.

While the U.S. Attorney’s press release does not detail what occurred after cocaine was discovered, the packages were probably sealed back up and placed in circulation for the defendant to deliver. Only this time odds were the former postal worker had unwanted company following him along his route. Montgomery County police assisted the feds in this investigation, and they could have been involved in either a pretextual traffic stop of the defendant or a probable cause arrest. Law enforcement likely waited until the defendant took some sort of action indicating he had knowledge of the contents of each package before making an arrest. During his plea hearing the former mailman admitted that he took possession of the packages in the Bethesda post office and then notified his co-conspirators by text that he had marked the packages as delivered. After scanning the packages in he delivered them to the co-conspirators at different locations than the addresses written on the packages.

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