Criminal Defense Lawyer Blog

Published on: April 11, 2016

Lawmakers Look To Expand Domestic Violence Protection

Today marks the final day of the 2016 General Assembly’s legislative session, and there is still much left to be decided on the criminal law front. We wrote extensively about the Justice Reinvestment Act, which has grabbed headlines for much of the last month. But there are other criminal law bills that will likely go into effect this fall, and these bills deserve some attention as well. One such bill was a measure originally taken by the House that looked to expand protections for victims of domestic violence. Currently a victim of domestic violence may petition the court for a protective order if he or she alleges that some form of abuse has taken place. Under the Maryland statute, abuse is now defined as an act that causes bodily injury or places the victim in fear of imminent bodily harm. Abuse also includes the crimes of rape, false imprisonment and stalking. Lawmakers from the House sought to expand the definition of abuse by adding harassment and malicious destruction of property but this measure failed to gain traction and was shut down after an unfavorable report by the judiciary. But now the bill has been revived in the form of an amendment to another Senate domestic violence bill, and it appears to be gaining steam.

Opponents of the amendment take issue with harassment being defined as a form of abuse. This is likely due to the broad definition of harassment, which is defined as maliciously engaging in a course conduct that alarms or seriously annoys another. No physical harm is necessary, and there is no exact definition of what a course of conduct actually means. This is a crime that while serious, is often the subject of false accusations because little objective proof is required to bring the charges; the word of the alleged victim is usually enough it initiate a case. While false accusations of harassment rarely stand up in court, they can have drastic effects on the accused if a temporary protective order is sought. Temporary protective orders can have immediate collateral consequences that can occur before the accused has his or her day in court, and this is the main reason while some lawmakers are hesitant to expand the definition of abuse to include harassment. But it appears that those in favor of expanding the abuse definition will be on the winning side of this debate.

The Blog will provide a final summary of the criminal law bills that will be heading to the governor’s desk this summer, and we will post a follow up article after all the dust settles. For now though, we expect that in October smoking marijuana in public will be a crime once again, and minimum mandatory prison sentences for drug felonies will come only at the discretion of the trial judge. Violation of probation procedures are also headed for drastic changes that will benefit defendants, and many prison inmates are looking at shorter sentences. As always, feel free to contact The Herbst Firm with any questions about these legal issues, as well as if you or a loved one has a criminal matter that calls for experienced representation. Benjamin Herbst handles all types of domestic violence cases including assault, harassment, and stalking, and is available at 410-207-2598.

Continue reading →

Published on: April 4, 2016

Justice Reinvestment Act Advancing In Annapolis

By Benjamin Herbst

The Justice Reinvestment Act is advancing in the House after the Judiciary Committee approved it by a wide margin last week. The bill is heading toward a full House vote, but lawmakers will likely be required to compromise on a few key issues before the bill ultimately gains approval from the General Assembly. The Senate and House versions differ slightly, and these differences must be hammered out before the bill is presented to the governor. The House version includes a racketeering provision designed to target gang related drug dealers, eliminates jail sentences for driving on a suspended license, and unlike the Senate version does not attempt to lengthen the maximum sentences for second degree murder and kidnapping. The overall tenor of the bill though is shared by both chambers of the Maryland Legislature; the House and the Senate share a strong desire to reduce the prison population and reinvest savings toward crime prevention through education and treatment. In our last post we outlined one of the four avenues lawmakers will use to achieve their stated goal and in this post we’ll touch on the other three.

Lowering maximum sentences for numerous non-violent offenses as we previously discussed is a step in the right direction, but alone will not reduce the number of prison inmates. To supplement lower maximum sentences the bill also focuses on modifying the parole process, streamlining violation of probation procedures, and eliminating mandatory minimum sentences for many drug violations. When a judge sentences a defendant to state prison time in a case not involving a minimum mandatory sentence he or she will not actually spend the entire sentence in prison. Maryland is a parole state, meaning that after serving a certain amount of the sentence (sometimes as low as 25%) almost all defendants are eligible for release under certain conditions. But the parole process can be defined as arbitrary and haphazard, and many times defendants who are of no danger and have been sufficiently punished remain in prison, while others are released too early. The bill attempts to implement a more refined and logical parole process in an attempt to find an appropriate actual sentence served for each different defendant. Under the Act all defendants will undergo a risk and assessment analysis promptly after sentencing. A larger array of educational and reentry programs will be offered once in custody, and the potential for monthly sentence deductions will be expanded. The goal is to keep offenders in custody for no longer than necessary, and the Act represents a major move toward this goal.

The Act also takes unprecedented measures to streamline procedure of probation violations. Hundreds if not thousands of defendants are sent to prison or back to county jail each year for technical probation violations. These technical violations can include missing and appointment, changing an address without approval, or not completing a drug class. Technical violations do not include new arrests or absconding from probation. Under the bill, defendant can be sentenced up to 15 days for a first technical violation of probation, 30 for a second, and 45 for a third violation. Fourth or non-technical violations may result in the defendant serving to the entire balance of the sentence. A judge may depart from these sentencing guidelines at anytime if he or she makes a finding that the defendant poses a risk to the public, or a victim or witness. If these probation violation changes are implemented both the prison system and the court system would reap the probable benefits of less inmates and lower caseloads.

Continue reading →

Published on: March 28, 2016

Senate Passes Criminal Justice Reform Bill

By Benjamin Herbst

The Justice Reinvestment Act is one step closer to becoming law after the Senate voted unanimously in favor of the bill last week. The Act would constitute the most comprehensive Maryland criminal legislation in decades should the governor sign it into law this summer, but first it heads to the House for further debate. There were a few hang-ups since the Blog posted on the Act a couple weeks ago that threatened its viability. These included a disparity in the amount of money the state would stand to save with the reform, and a heated debate on automatic penalties for technical parole and probation violations. But state senators sorted out these hang-ups and ultimately reached a firm consensus on the 96-page mega bill.

The main goal of the bill, which appears conspicuously in the title, is to save the state money by reducing the prison population and then to reinvest the money toward crime prevention. But as the 96-page bill length suggests, it’s not that simple. There is no single way to reduce the prison population because you can’t just decide to release a couple thousand inmates, and you can’t put a cap on how many defendants are sent there in the first place. Each criminal case is factually unique, which is why the trial judge is given almost full discretion on sentencing. In order to reduce the amount of prisoners you have to systematically adjust a judge’s approach to sentencing in the courtroom, and the amount of time a defendant actually serves after he or she is sentenced. Our reading of the mammoth bill leaves the impression that Annapolis lawmakers have developed four main platforms to adjust sentencing approaches.

The most obvious way to reduce the amount of defendants sent to prison is to lower the maximum penalties for the crimes they commit. Lawmakers have made those adjustments in the Act with respect to numerous offenses. They have lowered the maximum punishment for possession of marijuana from 1 year in jail to six months, and have lowered the maximum penalty of simple possession of other drugs from 4 years to 1 year. These other drugs include cocaine, heroin, and prescription pills such as oxycodone. Lawmakers have also lowered the maximum penalties for theft cases, which constitute the second most common class of criminal offenses after drug cases. Keep in mind that in Maryland DUI and DWI are considered traffic offenses despite being classified as criminal in many other states. Under the act, felony theft would require a minimum value of $2,000 instead of $1,000 and the maximum punishment would be cut in half from 10 years in jail to 5. The threshold for enhanced felony theft would rise from $10,000 to $25,000 and the maximum penalty would go from 15 to 10 years. Theft over $100,000 would carry a maximum 20-year sentence instead of the previous 25.

Continue reading →

Published on: March 23, 2016

Lawmakers Pushing To Criminalize Public Pot Smoking

By Benjamin Herbst

The twists and turns of marijuana legislation over the last couple years have made a tough go of understanding just where Maryland stands on pot policy. It’s safe to say that Annapolis has had a hard time passing marijuana laws that were successful the first time around. A few years ago patients and decriminalization advocates initially celebrated the passage of medical marijuana, but later experienced a huge let down when it was discovered the program had absolutely no chance of being implemented. Two years after that a medical program with actual teeth was established that unfortunately is still months away from implementation. Decriminalization of possession of less than 10 grams of pot was also celebrated, but some of the celebrations were muted after police began issuing criminal citations for possession of pot paraphernalia. The legislature failed to address the paraphernalia issue two years ago, and when they did last year the governor vetoed the law for not addressing smoking in public or while driving. This year the legislature overrode the governor’s veto and corrected the paraphernalia mistake, but the governor and numerous lawmakers still voiced displeasure that it is not a crime to smoke in public or in the car. As a result, Annapolis lawmakers are currently in the process of correcting another neglected component of marijuana policy.

This week the House passed legislation that would criminalize smoking marijuana in public and in a car on any state road. Public places have a broad definition under Maryland law, and include parks, restaurants, shopping centers, common areas of buildings such as stairwells, and even hotels. The ban also includes the common areas of apartment buildings that have more than four units, regardless of whether residents and guests are the only ones allowed on the grounds. House Bill 777, which will now moves to the Senate for approval, prohibits smoking marijuana in any of these public places. The bill originally prohibited any type of pot consumption, but this line was edited out and now all that is prohibited is smoking. One explanation for this edit may be the anticipation of edible medical marijuana that patients could discretely consume in public, but we will see if the Senate has other ideas about this specific line. A violation of this statute could trigger a criminal citation with a maximum punishment of a $500 fine, meaning that it does not carry the possibility of jail time. On the other hand, a violation could result in a permanent criminal conviction, and could trigger a probation violation or even a parole violation.

The bill also includes specific procedures for the expungement process of a criminal marijuana consumption statute. Unlike most criminal charges, a defendant who is convicted of this citation will still have to opportunity shield or even expunge a conviction for public consumption. Other offenses that fall under the new shielding statute include trespass, disorderly conduct, destruction of property, possession of a controlled substance and prostitution. Other offenses that can be expunged even after a conviction include drinking alcohol in a public place, loitering and riding a transit vehicle without paying a fare. A defendant must meet certain conditions including time limits before applying to expunge these convictions.

Continue reading →

Published on: March 16, 2016

Legislature Aims To Toughen DUI Laws

By Benjamin Herbst

A bill created to toughen state DUI laws is on the verge of General Assembly approval, and is likely headed for the governor’s desk this summer. The bill, named after a Montgomery County police officer that was killed after being hit by an alleged drunk driver, gained unanimous approval in the House yesterday and now moves onward to the Senate. Last week some critics felt the bill has been watered down by various amendments put in place by the House Judiciary Committee, but these fears were put to bed after the original restrictions were inserted back in the bill. As it stands now, the bill will make national waves as a concerted effort by Annapolis lawmakers to inflict harsher punishment on drivers who have been charged with DUI and DWI.

The original intent of the bill was to increase the implementation of the ignition interlock program. Maryland is already one of the largest program participants in the country, with well over 10,000 drivers using the device each year. The interlock device requires the driver to blow into a machine installed in the car, and an alcohol free breath sample is required for the car to start. The machine also has the technology to store data of samples that contain alcohol, which may be used in violation of probation procedures. Lawmakers originally wanted the interlock device to be mandatory for all defendants that either refused a Breathalyzer test after being arrested, or blew above .08. This provision was then modified to be an option in lieu of a license suspension, but now the mandatory interlock provision is back in the bill, and it’s safe to say that lawmakers will keep it there. Drunk driving related fatalities have been on a steady decline over the last ten years, and at least part of the decline has been attributed to the engine interlock program.

The bill is not specifically focused on engine interlock, but rather is a comprehensive upgrade of state impaired driving laws. There are also numerous provision related to suspending the driving privileges of those who have been cited or convicted of drunk driving. A first offender that blows over .08 now faces a 90-day license suspension, which doubles from the previous 45-day term. If the Breathalyzer results are over .15 the suspension will now be 180 days instead of the previous 90. Finally, if the suspected drunk driver refuses the Breathalyzer test his or her license will be suspended for a whopping 270 days for a first offense. This is a clear effort by the legislature to convince drivers to think twice before refusing to submit to the test. The suspensions increase upon second and subsequent offenses, and cap out at a maximum 2-year period for a third time offender who refuses a breath test. Keep in mind that an out of state driver who is arrested for DUI or DWI will not face a driver license suspension in Maryland, but rather their driving privilege in the state will be suspended. State and local police officers are not authorized to confiscate another state’s drivers license, but their home state will likely be notified, and may take action.

Continue reading →

Published on: March 9, 2016

Annapolis Lawmakers Mull Extensive Criminal Justice Reform

By Benjamin Herbst

Lawmakers in both houses and from both sides of the aisle are currently working on one of the most comprehensive criminal justice reform bills in recent memory. Senate Bill 1005, known at the Justice Reinvestment Act, is an 84-page behemoth of a bill that aims to revamp multiple areas of the current criminal justice system. The act’s two major areas of focus are reducing the state prison population, and then establishing specific avenues for allocating the savings. Maryland taxpayers are currently picking up a $1.3 billion yearly corrections tab, which is astonishingly high as a result of roughly 20,000 people being incarcerated in state and local jail facilities at any given time. For years lawmakers have wrestled with the conundrum of reducing the number of inmates without reducing the safety of our streets, and now it appears as if a reasonable solution is in the works.

Lawmakers want to reduce the prison population by up to 14 percent over the next ten years, thus saving almost $250 million per year. Since 14% of criminals are not simply going to take the next 10 years off, the only way to reduce the prison population is to release some offenders and to not incarcerate others in the first place. Maryland has not devised a revolutionary and unique system of selecting which offenders to release, but rather it is joining the federal government and numerous other states with the goal of reforming criminal drug laws. The bottom line is that lawmakers are finally realizing that society is not best served by spending $100,000+ per year to incarcerate a non-violent drug offender. We can lower maximum jail sentences and eliminate minimum mandatory prison sentences in non-violent drug cases without putting the public in harms way, and we can save millions in the process.

The Justice Reinvestment Act touches on three main ways to accomplish this, including lowering the maximum punishment for possession of narcotics such as heroin and oxycodone and stimulants such as cocaine, from four years to one year for a first offense. Second, the act and other legislation that is already in the works will also effectively do away with ineffective minimum mandatory prison sentences for certain drug felonies such as possession with intent to deliver, manufacturing, and distribution. Repeat drug felony offenders currently face parole ineligible 10-year mandatory sentences, while repeat offenders of violent crimes such as assault and robbery face no increased penalties. The contrast is simply illogical. Finally the act will place limitations on the penalties for certain violations of probation, which especially in the case of drug charges are responsible for hundreds of lengthy prison sentences each year. Reducing penalties for technical violations, or violations that do not involve additional criminal law violations, are the main focus of the act. There is language that would keep litigation of technical violations out of court, and in the alternative would allow probation officers to levy their own punishments. These changes will probably be met with some pushback, and may invoke constitutional law challenges, but it is hard to argue that technical violations are often blown out of proportion in court.

Continue reading →

Published on: March 5, 2016

Glen Burnie Man Takes Tip Jar Cash, Charged With Robbery

By Benjamin Herbst

A 27-year old man from Linthicum has been charged with first degree assault, robbery, and theft after stealing tip jar money from a Glen Burnie restaurant, and the problems for the defendant go way beyond this recent arrest. Ann Arundel police responded to the restaurant around 8 p.m., and after obtaining a physical description of the suspect they began to canvass the area. It didn’t take long before he was located on Ritchie Highway, not far from the scene of the alleged crime. Officers detained the man and took him back to the restaurant where employees made a positive identification. While taking cash from a tip jar is more akin to shoplifting than robbery, the charges do appear to be legally justified not because of the man’s actions, but rather because of his words.

Chances are high that one or more of the charges will be dropped when the case goes to court, though the alleged facts did rise to the level of a robbery and perhaps a first degree assault. As the defendant took the cash he told an employee that if the police were called he would take out his gun and use it. Had he remained silent while looting the jar, the only justifiable charge would have been theft. And based on the fact that there was less than $100 taken it would have been a petty theft with a 90-day maximum jail sentence. But a robbery, generally defined as a theft with force, occurred the second he mentioned the gun. Under Maryland law a verbal threat to cause harm is legally the same as actually causing physical harm with respect to robbery. While a robber who physically hurt someone during his or her crime would in theory face a harsher sentence from the judge, physical harm is irrelevant at the trial stage. It is also irrelevant whether the defendant actually possessed a gun and could carry out the threat, as the issue is whether the victim reasonably felt in danger. The suspect probably never had a gun based on the fact that he was not not arrested with any type of firearm and was not charged with armed robbery.

This robbery arrest is hardly the extent of the defendant’s legal issues because it turns out that he was recently released from jail after serving nearly six months for a sexual offense. Upon his release from the Anne Arundel County detention center the defendant was placed on supervised probation, and faces a lengthy prison sentence should he be found to have violated his probation. The arrest is enough to initiate the violation of probation process, but he can’t be punished unless the state proves that he committed the offense at trial or after a plea. While the state will likely be asking for major prison time if a violation is proven, a reasonable judge should factor in that the defendant never had a gun, and was probably penniless and perhaps even homeless after just getting out of jail. On the other hand, theft while mentioning the use of a firearm is not something that even the most lenient judge will take lightly.

Continue reading →

Published on: February 27, 2016

New Bill Prohibits Smoking Pot While Driving…Or Parked

By Benjamin Herbst

The 2016 Maryland legislative session is officially heating up, and numerous new criminal law bills are being discussed in the House and the Senate each day. There are a handful of criminal law bills that are slowly advancing, while many others have already received unfavorable reports by the Judiciary and have been withdrawn. But one bill that seems destined for the governor’s desk is a proposal that smoking marijuana in a car officially be declared illegal. Regular readers will remember the ongoing saga where the governor vetoed a necessary marijuana paraphernalia decriminalization bill because is contained no provision allowing officers to stop a car after observing the occupants smoking pot. Giving officers this power may have been totally reasonable, but it had absolutely nothing to do curing the immense confusion in the state’s marijuana policy by decriminalizing paraphernalia. The governor was simply trying to flex is legislative muscle, though luckily the lawmakers in Annapolis overrode the veto. Pot paraphernalia is no longer a crime and now the natural legislative process has brought us a bill that would achieve what the governor stubbornly tried to do through veto power last summer. At the risk of being too harsh on our governor, we’ll give him the benefit of the doubt and suggest that the veto may merely have been a tool to motivate and remind the legislature to make toking in the car a no no.

House Bill 183, which is has moved to the Senate after unanimous approval in the House, will add a provision to the transportation article that already addresses drinking alcohol in a car. This law currently makes it illegal to consume any alcoholic beverage in a car or truck on a public highway regardless of whether the car is parked or moving. If the new bill becomes law it will modify the statute to include smoking or consuming marijuana in a parked or moving automobile on a public highway. Violation of this provision is not currently a criminal offense, but rather a traffic citation punishable by a $500 fine. The proposed bill keeps it that way, as its main utility is giving officers the legal authority to conduct a traffic stop based solely on observing marijuana use. This is exactly what the governor and some elected prosecutors publicly wanted last summer, but prosing new legislation and allowing the process to play out is the right way to achieve it. The Bill will most likely pass unmodified, although there could be some minor changes after the Senate is through with it. And when it hits the governor’s desk you can bet it will be one of the first he signs. Look for smoking pot in a car to be illegal and punishable by a $500 fine to be illegal starting in October of 2016.

We will continue to follow this bill and other criminal law bills at they progress through the legislature. One bill that is of particular interest is House Bill 307, which lowers the maximum penalty for possession of drugs such as cocaine, heroin, and narcotic painkillers from 4 years to 1 year. This is a proposal that is a long time coming considering the changes in marijuana possession policy. A 4-year maximum sentence for simple possession is unnecessarily high, as 1 year in jail is more than enough to deter and punish drug possession.

Continue reading →

Published on: February 18, 2016

Maryland Lawmaker Proposes Broader Drug Decriminalization

By Benjamin Herbst

While decriminalizing small amounts of marijuana in Maryland was a major victory for drug reform, some state lawmakers are far from satisfied. The last year has been productive, with medical marijuana perhaps less than a year away from going live, and marijuana paraphernalia being decriminalized. But arcane drug laws have done little to reduce the availability and abuse of controlled substances, and incarcerations for non-violent drug offenses continues to cost state and local governments millions of taxpayer dollars. In an effort to take drug reform to new heights one state delegate has introduced a package of bills, which focuses on prevention and treatment instead of punishment. This common sense approach acknowledges that eradication of controlled substance use is not a realistic goal, and as a result advocates expending government resources on mitigating the effects of inevitable drug use. As of now there are three bills that will hit the House floor this legislative season, with the perhaps the most controversial scheduled for a hearing in early March.

House Bill 1119 represents an unequivocal effort to decriminalize the simple possession of virtually all common street drugs. Simple possession, which is referred to as de minimis possession in the bill, is the same benchmark that was used to decriminalize marijuana. The legislature chose the arbitrary amount of ten grams as their benchmark for de minimis pot possession. This amount was likely a compromise between lawmakers searching for a line that could separate personal use with intent to distribute, but other than the fact that ten is a nice round number it makes absolutely no sense. Many marijuana users prefer to buy larger amounts at a time to minimize the number of purchases they need to make. It would hardly be out of the ordinary for a moderate user to buy an ounce (28 grams) or more at a time, and this amount would in no way indicate a desire to distribute for profit. Further, marijuana is rarely sold by ten-gram increments, especially not in America. Still though, setting the bar at ten grams is better than the alternative of initiating criminal charges for anyone possessing as little as one tiny bud.

The proposed house bill expands upon de minimis exception for marijuana to include benchmarks of two grams of cocaine, one gram of heroin, ten tablets of meth, .0015 grams of LSD or acid, and 1 gram of methadone / amphetamine. Possession of less than these amounts of each drug would not be a crime under Maryland law if the bill were to pass. These amounts are more realistic as indicative of personal use than the ten-gram cutoff for pot because they have not been watered down by endless debate and so called compromise. The bill would eliminate a large burden on the criminal justice system of prosecuting drug users who need help rather than jail time, but sadly it has little chance of becoming law in the next couple of years. Maryland has not shown a willingness to be ultra progressive with respect to drug policy and it is highly unlikely that Annapolis lawmakers would be the first to decriminalize cocaine and heroin possession. On the other hand, this bill could generate enough attention to start the discussion, which at this point is the best we can hope for this year.

Continue reading →

Published on: February 10, 2016

Teenagers Charged With Theft At Ski Resort

By Benjamin Herbst

While millions cursed the record breaking January blizzard for canceling travel plans, court dates and business meetings, the local ski resorts celebrated every second of it. What started out as a miserable ski season for Maryland and Pennsylvania resorts quickly turned into a moneymaking windfall thanks to the infamous Jonas. But it wasn’t all happy times up in the mountains as two Harford County teens were recently charged with theft at Ski Roundtop. Local police alleged that the two Bel Air boys took rental snowboards from the mountain shop without paying and then rode the ski lifts sans lift tickets. After mountain employees, also known as lifties, caught on to the scam police were notified and reported to the scene. In the past this type of violation would usually result in being kicked off the mountain and possibly banned for the season, but the cops were called to send a message that skiing without a pass is theft, and will be treated as such.

This recent theft is certainly not the crime of the century, or even the crime of the day, but it does call attention to some legal issues that are important to understand. It is clear that nothing was actually stolen in the traditional, non-legal sense of the word, as the boys did not remove the snowboards from the resort and likely never intended to do so. If taking the boards was their intention, they certainly would not have stayed on scene to try them out. Rather, the Bel Air teens were charged under the principals of unlawful control of property and theft of services. This case took place in Pennsylvania, but the Maryland theft laws are quite similar in that they criminalize both theft of property and theft of services under the same statute. Had this incident taken place at Wisp for example, the act of skiing without a lift ticket and using a rental snowboard without paying would have violated section 7-104 of our state’s criminal code. This section makes it a crime to use the property of another without permission, and also to obtain the services of another by deception. Sneaking on to the lift without buying a ticket would qualify as the act of deception, and a theft occurred despite the fact that the ski resort didn’t actually lose anything tangible.

Under Maryland law obtaining services by deception or fraud is treated the exact same way as a theft of another’s property. The maximum penalty depends on the value of the services that were unlawfully obtained. In this particular case the total value of the board rental and the lift ticket came up to $105, which would be a misdemeanor theft with a maximum penalty of 18 months in jail. A charge of illegally obtaining services with a value under $100 carries a maximum penalty of 90 days, while unlawfully obtaining services over $1,000 is a felony that starts with a 10-year maximum punishment. Services often do not have a definite value, so police and the prosecution will typically use whatever evidence they get from the victim of the theft. Unfortunately they tend to round up, but a good lawyer should be able to move the arrow in the other direction when the case goes to court.

Continue reading →