Criminal Defense Lawyer Blog

Published on: September 15, 2018

What Happens After A DUI Charge?

The DUI laws in Maryland change almost every year, which makes it difficult for the average person to know what to expect in the days and weeks following an arrest. This is especially true for out of state drivers from states such as Pennsylvania, Virginia, Delaware and others. Two of the biggest questions after being arrested for DUI are going to jail and losing your license, so for this post we’ll focus on those two issues.

Will I go to jail if I’m arrested for DUI in Maryland? First of all, the following paragraphs apply only to those defendants that intend to plead guilty. If you believe you were wrongfully arrested you should certainly consider taking your case to trial (we always recommend a jury trial for DUI). While no lawyer will ever be able to guarantee or predict a specific outcome it is extremely rare for a first offender to serve jail time for a first DWI or DUI. This is true in all jurisdictions, including the federal courts that handle citations issued on certain federally maintained roads like the BW Parkway (295) and the Clara Barton Parkway, or on military bases like Fort Meade and Andrews. Unfortunately there are exceptions to this no jail for a first offense rule for cases involving injury accidents, extremely high BAC levels or not cooperating with police.

As for repeat offenders, the prospect of jail time increases depending on the number of priors and the time that has elapsed since the priors. A defendant with one prior DUI that happened more than 5 years ago could certainly make a good case for a probation sentence, while a third time offender will have a more difficult time accomplishing this goal. Maryland law imposes a mandatory 5-day sentence for a second DUI conviction within 5 years and a mandatory 10-day sentence for third conviction within 5 years of the last. The best way to avoid jail time regardless of if you are a repeat offender is to be proactive, and show the judge this will never happen again. We advise each of our clients to immediately seek out an alcohol education program, set up an evaluation and comply with any treatment recommendations. You may not need counseling, but it will absolutely help in court and the judge will probably order it anyway. After finishing the program be sure to obtain a certificate that you can present in court, and be ready to speak about your experience and answer any questions about what you learned. An attorney can and should assist you in finding the right program.

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Published on: September 9, 2018

Former State Lawmaker Sentenced To Federal Prison

By Benjamin Herbst

A former Prince George’s County delegate has been sentenced to four years in federal prison followed by three years of probation for engaging in bribery and conspiracy while in office. The sentence was announced by federal prosecutors after a hearing at the U.S. District Court in Greenbelt more than six months after the former state lawmaker’s trial. Back in March a federal jury found the ex-delegate guilty of four counts of bribery and one count of conspiracy for accepting thousands of dollars from various business owners in exchange for favorable treatment. At sentencing the presiding judge was informed that the shamed delegate also stole over $100,000 in campaign funds during his 14-year tenure as an elected official.

According to evidence presented by the government the former delegate conspired with members of the county liquor board and liquor store owners to vote favorably on issues that would increase the profitability of the store owners. This included votes on proposals to establish additional permits to sell alcohol on Sundays, and for these favorable votes the former lawmaker received at least $19,000 in cash payments. In reaching a sentencing decision the judge not only considered evidence presented during the two-week trial, but also evidence of wrongdoing that the government presented at the sentencing hearing. The former lawmaker was not brought to trial on charges of theft or misconduct in office for stealing campaign funds, but it undoubtedly factored into the judges decision to sentence the delegate to four years in jail. The former delegate and his legal team did not attempt to deny the government’s claim that he stole the funds, which likely means there was some sort of agreement between the parties beforehand. The government probably felt it would not be necessary to bring the former lawmaker to trial twice, as long at the sentencing judge was aware and considered the additional misconduct.

While it may seem unfair to a layperson, prosecutors are permitted to introduce evidence of wrongdoing at sentencing that was not presented at trial. The traditional rules of evidence do not apply during sentencing hearings, which means nearly everything about the defendant is fair game. The prosecution is still bound by ethical rules preventing them from informing the court about rumors and unfounded accusations, but the defendant’s character is always tested at a sentencing hearing. The flip side of the coin is that the defense is rarely limited as to what it can bring to the court’s attention during this phase of the proceeding. Defendants may call numerous witnesses to testify on their behalf, and these witnesses are not subjected to traditional cross-examination. While every judge operates differently, it is usually beneficial to have family, friends and other members of the community to testify for a defendant at sentencing. Prosecutors spend the entire trial attacking the defendant, who most of the time is advised to exercise his or her 5th Amendment right to remain silent. Sentencing is generally the only time where the judge can learn more about the defendant as a person, rather than a criminal suspect.

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Published on: September 2, 2018

Medical Marijuana Rolling Along

By Benjamin Herbst

Medical marijuana first became available in Maryland just 8 months ago, and after a few hiccups in the opening weeks the program is now becoming a well-oiled machine. There are 65 dispensaries currently throughout the state, and almost all are enjoying a steady stream of business. These dispensaries reported gross sales of $1.8 million in December and now that number is approaching $10 million. In addition, there are now seven times more medical marijuana purchases per month than when the program first began. Since the beginning of summer at the end of May until now the number of patients has risen 30 percent to roughly 36,000. This number could increase another 3 to 4 times still, as experts have estimated 2 percent of the state’s total population will eventually obtain certification. And finally, while we’re talking numbers, there are now 985 medical providers who can recommend cannabis, which is up from 709 at the end of May. New patients are coming forward each day, and medical doctors, nurse practitioners and psychologists are jumping on board as well.

Considering it took almost 5 years from when medical marijuana first became law until it became operational, the current progress has to be considered a success. But that doesn’t mean the system in Maryland is without flaws. For starters medical cannabis is not covered by any health insurance plans in the state as it’s still not approved by the FDA as medical necessity. Patients can spend anywhere from $100 to $1,500 a month for their supply of cannabis, and while state dispensaries offer high quality safe products, they don’t come cheap. Tight regulations, limits on the number of growers and distributors and long expensive delays are just some of the reasons for high cannabis prices in Maryland, and for some it can be cost prohibitive.

Not everyone can afford to spend hundreds of dollars per month cash to obtain the medicine they need to simply feel normal. The sad truth remains that it is still cheaper to medicate with prescription narcotics that are both chemically habit forming and potentially deadly. Some resort to growing marijuana plants in their homes or on their property to cut costs, but this is a risky strategy as personal marijuana cultivation is still a felony in Maryland. Lawmakers recently tried to pass a bill legalizing the possession of up to an ounce of pot and allowing residents to grow up in six plants in their homes, but this bill failed to make it to the governor’s desk. Growing even one marijuana plant is a felony the CDS manufacturing law and is punishable by up to 5 years in prison. Law enforcement still actively investigates any tip involving marijuana manufacturing and spends taxpayer dollars performing expensive aerial surveillance missions in search of outdoor home growers. Tips and surveillance can lead to search warrant, which then can lead to seizures and arrest. Things only get more serious if an otherwise lawful firearm is found on the searched premises, as this can lead to a charge for possession of a firearm in drug trafficking crime, which carries a minimum mandatory prison sentence upon conviction.

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Published on: August 25, 2018

Baltimore Woman Arrested Twice For DUI On Same Day

By Benjamin Herbst

A Maryland State Police trooper arresting a driver for DUI on a Friday night in Baltimore County is hardly a newsworthy occurrence. But when the same trooper arrests the same driver for the same offense just two hours after the first traffic stop it has to make your head turn. The first arrest happened just after midnight on Route 40 in Rosedale, an area northeast of Baltimore City. This stretch of highway is a hot area for late night police patrols, and officers are especially keen to impaired driving. On this particular night a trooper observed a woman driving 67 in a posted 50 mph zone on Route 40 and allegedly passing another car on the shoulder. A traffic stop ensued and the officer arrested the 33-year old female driver for suspicion of DUI. The Baltimore woman was also issued a host of other citations including negligent driving, reckless driving, open container and driving off the roadway while passing another vehicle. As is typical for most DUI cases the woman was processed at the police station and released a couple hours after the initial stop. What is not typical is that the woman decided to return to her car and drive home that same night.

The state trooper working that evening likely had an idea that the woman he arrested was not finished driving for the night. According to reports he observed her get back in her vehicle that was parked on a side street off 40. Police could have had the vehicle towed but they did her a favor and left it parked, which in hindsight was not favor at all. The trooper followed the woman for a short distance and then initiated another traffic stop at 1:58 a.m., less than 2 hours after and 2 miles away from the first stop. The same signs of impairment were observed and the woman was again arrested and taken to the police station. This time she received additional citations for driving within 12 hours after an arrest for DUI or DWI and willfully disobeying a lawful order of a police officer. Driving within 12 hours of a drunk driving arrest is a jailable offense that carries a maximum penalty of 60 days, and while it’s not that common, it is definitely an offense that a judge will not take lightly.

The woman will be summoned to appear for trial sometime in the next couple months at the district court in Essex. She may chose to resolve her cases in district court or request a jury trial and have the case transferred to Towson. In this type of situation the defendant and her attorney will likely be better served by trying to have the cases consolidated to the same trial date, which the clerk’s office will likely do considering the arresting officer is the same. Assuming the cases are set for trial on the same day a good defense strategy would be to try to enter into a plea agreement on one of the cases in exchange for the State dismissing the other. If the State agrees to drop one of the cases it may turn out to be the first case, as it would be reasonable to expect the prosecution to be firm on the charge of driving within 12 hours after a DUI arrest.

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Published on: August 18, 2018

Man Awaiting Driving Test Arrested At MVA

By Benjamin Herbst

Maryland State Police recently arrested a man who was waiting in line to take his driving test at the MVA headquarters in Glen Burnie, and charged him with numerous drug felonies. The 23-year old from Baltimore was in his mother’s vehicle awaiting his turn with a driving instructor when an MVA employee noticed the smell of marijuana coming from the car. An MSP trooper responded to the scene and initiated a warrantless search of the vehicle based on probable cause that it contained marijuana. The trooper’s suspicion was confirmed and then some, after he located a large plastic bag containing approximately 1 pound of marijuana, a 9 millimeter handgun, a digital scale and more than $15,000 cash. The man was arrested immediately after the contraband was discovered and taken before a commissioner. He was released that same day on an unsecured $7,500 personal bond.

The young man now faces a dozen charges in Anne Arundel County including possession with intent to distribute and possession of marijuana over ten grams. The maximum penalty of PWID marijuana is 5 years, though recent changes to the sentencing guidelines have decreased the amount of jail time most defendants actually see for this offense. Nowadays it is rare for a first time offender to serve much if any jail time unless he or she is involved in a large-scale operation. The concerns for the defendant in this case are the gun charges, especially the crime of possession of a firearm during a drug trafficking crime. A conviction for this felony charge carries a minimum five-year prison sentence, which cannot be suspended and the defendant is not eligible for parole. The defendant is also charged with the less common crime of firearm use during the commission of a felony that also carries a mandatory five years, but is a misdemeanor. Other gun counts include handgun on person and handgun in vehicle, which are essentially the same crime with the same 3-year maximum penalty.

The 9-millimeter Glock that was seized from the car allegedly had an altered or scratched out serial number, and this is a separate crime under the public safety code. Under Maryland law anyone found to be in possession of a gun with an altered serial number is presumed to have altered it. Finally, the defendant in this case was also charged with possession of a detached magazine with over ten rounds. The controversial Firearms Safety Act now limits the capacity of gun magazines to ten bullets, which makes many common firearms illegal in Maryland including the standard military Beretta pistol. The Blog will follow this case as it progresses through the court system. It is currently set for a preliminary hearing in district court, but the State will likely indict the case and it will be transferred to the circuit court in Annapolis. We will post an update if anything of interest happens in this case. If the defendant is found guilty or enters a plea, the sentence will depend on whether he has a prior record of gun, drug or other criminal charges. If you have a question about a criminal case in Maryland or have been charged with a crime feel free to call gun crime attorney Benjamin Herbst anytime at 410-207-2598. Benjamin specializes in gun and drug charges in state and federal court and offers flexible payment plans for all types of cases.

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Published on: August 9, 2018

Bail Bondsman Receives Federal Prison Sentence

By Benjamin Herbst

The Department of Justice recently reported that a former bail bondsman has been sentenced to five years in federal prison for his role in a drug distribution conspiracy with Baltimore Police officers. According the plea agreement the 51-year old defendant from the Middle River area of Baltimore County stole drugs, cash and jewelry from citizens between 2015 and 2017. He also obtained significant quantities of narcotics from a former Baltimore Police sergeant who is currently serving a 25-year sentence for racketeering, robbery, falsification of records and public corruption. Court documents alleged that the sergeant would repeatedly steal or confiscate narcotics during the course of his duties as a police officer. The sergeant would then deliver the drugs to the bail bondsman, who would store them on his property until he and other co-conspirators were able to sell them. In some instances the bail bondsman tagged along with the police sergeant during raids and searches. All told the bail bondsman netted hundreds of thousands of dollars from the illegal drug sales, which were divided among the numerous corrupt officers that helped facilitate the scam.

Multiple law enforcement organizations participated in this investigation including the FBI and the Baltimore County Police Department. Investigators likely received a great deal of information about this case from co-defendants looking to receive a break from the U.S. Attorney’s Office, but the case was made after the execution of a search warrant at the bail bondsman’s home yielded over 400 grams of crack, 200 grams of cocaine, 14 grams of heroin, MDMA, cash and expensive jewelry. Luckily for the defendant no firearms were found during the execution of the warrant, as the presence of guns could have resulted in a much harsher sentence. Federal sentencing guidelines provide harsher penalties for certain gun crimes than Maryland state sentencing guidelines, and many of these offenses carry mandatory prison time.

The bail bond industry in Maryland has been hit hard by reforms mandated by the Court of Appeals and the state legislature. Judges are no longer permitted to impose exorbitant bail amounts unless doing so would be the least restrictive means to assure the defendant’s return to court. Bail in any amount may not be used as a means to protect the community while a defendant is pending trial, as this is now the responsibility of pre-trial services. Obviously, this case was not directly related to bail reform, but one is left to wonder whether tough financial times motivated this defendant to engage in illegal activities.

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Published on: August 2, 2018

Police Bust Queen Anne’s County Drug Ring

By Benjamin Herbst

The Maryland State Police recently reported that arrests have been made and indictments filed for participants in a large Eastern Shore drug ring that also operated in Delaware. The investigation began back in the spring when the Queen Anne’s County Drug Task Force began to focus on the alleged ring leader, a 31 year old male living in Centreville, who police believed was importing and distributing large amounts of heroin, cocaine and narcotic pills in the area. An intense investigation led to the execution of multiple search warrants that were executed on June 1. The search warrants resulted in the seizure of close to $32,000 in cash, seven vehicles, five firearms and over 250 grams of cocaine. Police also seized smaller amounts of marijuana, oxycodone and heroin.

The alleged ringleader and some of his co-defendants were charged with multiple criminal counts in three separate cases, while other co-defendants were just charged in one case. It appears from court documents that the charges stemmed from alleged illegal activities that occurred on multiple different days. The first date of incident appears to be April 30, and then there are multiple dates during May. The last date is June 1, which is when the search warrants were executed and a few of the defendants (including the alleged ringleader) were arrested. This means that that some of the defendants will face the difficult task of fighting the state in three separate cases, which seems unfair but is completely legal. Police have no obligation to arrest a defendant the first time they commit a crime, but rather can wait days or even months to fully complete an investigation. The defendant may be charged in different cases as long as the criminal acts were not part of a continuing course of action. In this investigation the charges were separated by a few weeks each, which will likely stand up to any type of double jeopardy argument.

The lead defendant is charged with dozens of counts of CDS possession with intent to distribute and conspiracy to do the same. Possession with intent to distribute narcotics such as heroin or cocaine is a felony with a 20-year maximum penalty. Conspiracy has the same maximum penalty but is a common law offense that is classified as a misdemeanor. At least two of the defendants are charged with illegal firearm possession and possession of a firearm during the commission of a drug trafficking offense. Each of these charges carries a minimum mandatory prison sentence, which cannot be waived by the judge and can run consecutive to any other count. While this recent bust was large by Maryland standards, the police did not recover an amount of CDS required to trigger volume dealer or drug kingpin laws. These laws greatly enhance the penalty for possession or distribution of large amounts of drugs and place a 40-year maximum penalty on anyone who imports a large amount of CDS into the state. The threshold for these laws is 448 grams of cocaine, 28 grams of heroin and 50 pounds of marijuana, so based on the executed search warrants that we know of the defendants will not have to face these harsh drug laws. Nonetheless the main defendants in this drug bust face a challenging battle ahead in the Circuit Court for Queen Anne’s County.

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Published on: July 24, 2018

Baltimore Police Officer Charged With DUI

By Benjamin Herbst

Drunk driving charges have been filed against a Baltimore Police sergeant after he allegedly crashed an unmarked department vehicle into multiple parked cars. The incident occurred last weekend in the northeast part of the city not far from the site of the old Memorial Stadium. The sergeant is a 15-year veteran of the force, who is assigned to a new plainclothes unit sporting the nondescript title Anti-Crime Section. This undercover unit has been around since April, and is the first of its type since plainclothes units were disbanded following federal indictments of numerous members of the Gun Trace Taskforce. The charged officer is one of two sergeants on the plainclothes unit, which also includes 12 officers. Pursuant to department policy the sergeant has been suspended with pay while an internal investigation takes place.

The sergeant was not arrested and booked into jail, but rather was issued must appear citations. He will receive a summons to appear for trial, likely at the North Avenue District Court in Baltimore City sometime in the next few weeks. Most people who are arrested for DUI or DWI in Maryland are not actually booked into a jail, but rather are released to a friend or family member at the police station. This process typically takes a few hours, as the officer has to complete all the paperwork and inform the defendant of his or her rights with respect to the breathalyzer test. There are certain scenarios where a driver arrested for drunk driving could be booked into jail, but a polite and cooperative attitude will usually be enough to avoid this unfortunate outcome.

Like most first time offenders, the police officer will probably have an opportunity to receive probation before judgment or PBJ from the judge in district court. This of course depends on whether the officer’s attorney feels the state has enough evidence to prove the charges, and it is not clear whether the sergeant submitted to a breath test. The officer may elect to fight his case at trial, though this route should take the case downtown to the circuit court. It is extremely difficult to win a DUI trial in district court because you are relying on the judge alone to find the state has not met its burden of proof. Police officers typically have the most experience testifying in traffic cases, and in a district court trial they only need to convince one person (the judge) that the citations should stand. Contrast this with a jury trial where 12 citizens are scrutinizing each and every word coming from the state’s witnesses. Most jurors understand that even two sips of alcohol can be detected on a person’s breath, and that the roadside exercises are a ridiculous endeavor. Standing on one leg and walking heel to toe in a straight line are hardly an adequate means to test a person’s normal faculties. If you are charged with DUI or DWI (typically a person will be issued citations for both and an additional one for DUI per se if the breath results were above .08) do not hesitate to request a jury trial and transfer your case to circuit court. Making this request does not automatically mean your case will go to a jury trial, rather it simply means that this option will be available.

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Published on: July 15, 2018

State Investigating Grow House For Pesticide Use

By Benjamin Herbst

The last few months have been a relatively quiet time regarding medical marijuana news stories in Maryland. The program seems to be running smoothly and there have been no major incidents at state licensed grow houses and dispensaries such as break-ins or missing product. The baseless concerns about the possibility of kids and vagabonds hanging out in dispensary parking lots has obviously not come to fruition, and general crime involving medical marijuana has been pretty much nonexistent. Wait times at dispensaries has been manageable and the supply chain of flower is steady. There are still some gripes about the inexplicable absence of edibles and other forms of the medicine, but overall the program’s first year is going well.

No news is good news for the (still) controversial medical marijuana program, so when you see the words medical marijuana in the Sun or the Post these days it’s likely to report a problem. There appears to be a pretty big problem for an Anne Arundel County grower that was one of the first to open for business in Maryland. Three employees of this particular grow house apparently sent sworn statements to the General Assembly, which accuse the grower of using illegal pesticides on their product in order to eliminate mold and pests. All three of the former employees were at the company last summer when they were allegedly told to spray at least one infested crop with pesticides that often were given code names by supervisors. This practice apparently continued for months until the employees took their concerns to the in-house compliance officer and subsequently left their jobs. Two of the three left back in April, while the third stayed on until June, all the while allegedly spraying the code named pesticides whenever told.

The company has categorically denied the use of pesticides, which were all illegal when the three employees said they were used. A recent tweak in the law now allows the temporary use of minimum risk pesticides, but this tweak is irrelevant to the claims of foul play by the employees. At least one dispensary from Queen Anne’s County is not buying the grow house’s denial, as their patients reportedly complained of burning eyes and throats after using their products. Owners of this dispensary have already stopped purchasing from the Anne Arundel grower and others may join in the future. The scandalous nature of this story is enhanced by the fact that one of the co-owners of the grow house is a prominent supporter of the governor, and even served on his transition team. This owner was allegedly informed of the pesticide use at two meetings back in April, but he has not commented on the allegations.

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Published on: July 8, 2018

Defendant Guilty Of Negligent Driving In Fatal Crash

By Benjamin Herbst

Last week a Montgomery County man was found guilty of negligent driving in a traffic incident that resulted in the death of two law enforcement officers. The accident occurred back in December after an FBI agent lost control of his car and hit the concrete median along Interstate 270. The agent’s car became disabled and in the left lane of travel, and shortly thereafter an off duty law enforcement officer stopped to help. As the two were standing in the shoulder awaiting assistance the defendant’s car stuck and killed both of them. The Maryland State Police conducted a thorough accident investigation, which concluded that the driver was at fault. The driver told investigators that he saw the left lane of travel was blocked by a stopped vehicle, but could not move to the right lane of travel as another vehicle was beside him. In order to avoid the stopped car the man swerved into the shoulder, unaware that the two officers were standing in his way. Regardless of his limited options, investigators determined that the 28-year old driver could have avoided striking the officers had he reacted quicker.

The accident investigation was forwarded to the State’s Attorney’s Office in order to make a determination whether to file criminal charges, and they declined to do so in an April decision. The driver was issued one single citation for negligent driving, which in Maryland is defined as operating a motor vehicle in a careless and imprudent manner that endangers life or property. Negligent driving is a lesser form of reckless driving, but neither offense carries the possibility of jail time, and neither offense requires the defendant to appear in court. In any non-jailable traffic offense a may prepay the fine, request a trial or request a waiver hearing where a guilty with explanation plea will be entered. If a defendant elects the latter two options an attorney may appear on their behalf. In this case the driver pled guilty and was ordered to pay a $280 fine, and will receive 3 points from the MVA because the judge did not grant probation before judgment.

Prosecutors did not believe that the driver’s conduct amounted to criminal negligence, which could have resulted in charges such as reckless endangerment, criminal negligence, gross negligence and manslaughter by vehicle. This decision obviously did not sit well with the family and friends of the victims, but it’s a prosecutor’s job to only proceed on cases where they believe criminal conduct can be proven beyond a reasonable doubt. Not every decision prosecutors make will be popular, but it is their duty to take emotion out of the equation when considering charges. While there are far too many cases of innocent defendants being prosecuted, there are many instances where charges are dropped or not filed despite the severity of the accusations. Just recently our Firm represented a client on serious criminal allegations that were ultimately dismissed after prosecutors took a hard look at the evidence prior to formally charging the case.

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