Criminal Defense Lawyer Blog
The Maryland criminal justice system is relatively friendly to first time offenders compared to other states. This may be a hard concept to swallow, especially for someone who has spent months fighting in the district and circuit courts to clear their name. But our state provides number of ways for a person charged with a crime to eventually be able to move forward with their life. The expungement system is easy to understand, cheap, and quick in comparison to other similar systems. Typically within three months of filing a qualified expungement application, the charge at issue will be taken off the public case search, and court and police records will be destroyed. There is also no limit on how many qualified cases a person can expunge, which is hardly the case in other states, and there are numerous outcomes that allow a defendant to expunge his or her case. Some common outcomes are a not guilty verdict, nolle pros., STET, or a probation before judgment. Probation before judgment, which allows a defendant to plead guilty without receiving a permanent conviction, is often afforded to first time offenders. A PBJ is eligible for expungement three years from the date it was accepted. A case that is marked as STET also may be expunged after waiting three years, but not guilty verdicts and cases where the state announces a nolle pros. are immediately eligible.
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New Law Would Shield Criminal Convictions From Public View
When the legislature decriminalized small amounts of marijuana last year the celebration drowned out many of the law’s shortcomings. In last spring’s rush to push decriminalization to the governor’s desk, the legislature neglected to address certain collateral consequences of the new law. One of these consequences was the illogical relationship between newly decriminalized marijuana and the criminal offense of paraphernalia. This created tension and inconsistency between law enforcement and prosecutors throughout the state, and generally left defendants feeling duped and confused. A few weeks ago we posted an article about the legislature’s efforts to cure this defect, and a bill modifying marijuana paraphernalia is well on its way to becoming state law. Paraphernalia may have been the most glaring and publicized omission in the decriminalization law, but it wasn’t the only one.
Each year hundreds of innocent people are terrorized by law enforcement’s overuse of their SWAT teams to effectuate searches and arrest warrants. These potentially traumatizing incidents are rarely publicized unless things truly go awry. The public never hears about a SWAT team arresting the wrong person, or destroying a bystander’s property in a search, but those who experience this first hand will never forget. There is little or no legal recourse for those who have been unjustly damaged by a SWAT raid, as cops are typically immune if they are acting on a properly executed warrant. Even if the warrant turns out to be unlawful, the mere fact the cops acted on the reasonable belief that it was valid is enough to avoid liability. When law enforcement’s actions are so egregious as to warrant civil or criminal liability justice is often hard to achieve, as it usually comes down to a cop’s word against the claimant’s. And there are few lawyers willing to take on a case against the government with those odds.
One of the major flaws of last year’s marijuana decriminalization bill was that it failed to address drug paraphernalia. For the past six months possessing less than 10 grams of pot in Maryland has been punishable only by a civil citation. These citations are not available for public inspection and are not entered into an online database. On the other hand possessing marijuana paraphernalia remains a crime punishable by a $500 fine for a first offense, and up to two years in jail for any subsequent conviction. These paraphernalia citations carry the risk of a permanent conviction, are available for public inspection, and are listed on the judiciary case search. The dichotomy between these two laws is alarming, especially considering the broad definition of drug paraphernalia. Section 5-619 of the controlled dangerous substance statute basically gives police officers full discretion to determine what should be considered paraphernalia, and there are few legitimate legal defenses to challenge the this determination. Basically any object that is used in conjunction with the marijuana can be considered paraphernalia. This includes not only pipes and rolling papers, but also plastic baggies and containers.
Almost 30 years ago the federal government took its war on drugs to new heights by proclaiming a zero tolerance policy. All drug crimes from trafficking to possession were to fall under this new initiative, and billions of dollars were spent on incarcerating offenders. Along with the fancy tag names and plentiful resources came new legislation that kept even non-violent, first time drug offenders in jail for years. Minimum mandatory prison sentences were established, and became a major source of power for the justice department, and subsequently for federal and state prosecutors. A minimum mandatory sentence requires a judge to hand down a specific prison sentence upon a finding of guilt, either by a plea or a guilty verdict at trial. Many of these sentences exclude a defendant from parole eligibility and even gain time for good behavior. While the stated goal of these sentences was to deter drug crimes, all they really did was cause severe overcrowding of prisons across the country. Not to mention creating an environment where non-violent drug offenders were serving more time than armed robbers.
The road to marijuana legalization did not come easy for Colorado and Washington State. Both endured negative publicity from the national media and propaganda campaigns from various lobbyist groups (alcohol being a major one). And even in the face of increased tax revenues and dropping crime rates, and lower teenage usage rates, these states continue to deal with uncertainly regarding federal drug laws. The current administration and justice department still have not taken a truly definitive stance on state marijuana laws going forward, which creates an unsettling environment where state and federal laws are completely contradictory. But in spite of theses challenges, two new jurisdictions have recently entered the legal marijuana fray. A week ago pot officially became legal in Alaska, and last Thursday Washington D.C. took the plunge as well. Legalized marijuana in Alaska will probably take a similar path to that of Colorado and Washington State, albeit few years behind. There are no immediate plans for dispensaries to open in the 49th state, so you won’t be able to legally buy or sell pot there at least a year. On the other hand, D.C.’s new marijuana law is not like Colorado and Washington’s, and the city now faces unique challenges that could make last Thursday’s celebration short lived.
It almost seems like a crime in and of itself. A police officer arrests a person for suspicion of committing a drug offense. Then a few hours (hopefully not longer) later upon being released he or she finds out that the police have kept some of their property. Property that is entirely legal on its own. Typically it’s something small like a few bucks or a cell phone. But in some cases it could be thousands of dollars, a car, boat, or even a house. Time and time again the courts have upheld law enforcement’s right to confiscate a suspect’s property. It is widely understood, if not accepted, that a cop can take a person’s otherwise legal property if that officer believes it will be evidence in a criminal prosecution. Unfortunately this is hardly the only justification an officer needs to take a citizen’s stuff. For decades the law of civil forfeiture has driven defendant’s, their families, and criminal defense lawyers crazy. In a nutshell forfeiture gives police the right to confiscate property they believe is being used to further criminal activity. The definition is vague and general, and the standard of proof is low. Forfeiture is easily abused by law enforcement, and when it is, legally thievery is the result.
The Maryland Firearms Safety Act survived one challenge to its constitutionality back in the summer, and now the controversial law faces yet another hurdle next month. The act, which went into effect back in October, garnered national attention for being one of the strictest of its kind. Several types of handguns, assault rifles, and high capacity magazines received an all out ban, and increased security restrictions were placed on gun purchasers. Second Amendment lobbyist groups immediately admonished the gun law, and backed a lawsuit against its constitutionality in federal court. The plaintiffs argued that the Act infringed upon the rights guaranteed by the Second and Fourteenth Amendments, and was therefore unconstitutional. But a federal district court judge in Baltimore disagreed and ruled that the act, while restrictive, was crafted in a way as to not be overly burdensome. Soon after word came down from the district court the gun rights advocates filed an appeal in the Fourth Circuit Court in Richmond. Now after couple months of downtime it appears we are a little bit closer to learning the final fate of the gun law.
A school offering a marijuana business class will hardly make headlines in a few years when pot is legalized for recreational use. Considering the market potential for legal marijuana, as much as 10 billion dollars per year by some estimates, it would be a disservice for an academic institution to not offer this type of class in the future. But we’re not quite there yet, and therefore it still comes as a surprise to see a class titled “Entrepreneurial Opportunities in Emerging Markets: Marijuana Legalization” to show up in a course catalog at a local public college. The school is Anne Arundel Community College, and the three-credit class is already in the second week of meeting. It’s a small class, limited to 25 students, but enrollment is full, and you can expect few empty seats when the class meets each Monday and Wednesday afternoon of the spring term. A glance at the course summary reveals topics such as the tax impact and the legal and regulatory challenges facing the industry. But as a business course, the main focus is simply how to get a piece of the 10 billion dollar marijuana pie.
The 2015 legislative session is officially underway, which means our focus will shift slightly from reporting Blog worthy criminal incidents to updating readers with the progress of new potential criminal laws. Last year was quite eventful from a criminal law standpoint; simple possession of marijuana was transformed from an offense punishable by 90 days in jail to a civil infraction punishable by a fine of a hundred bucks, and the medical marijuana program was given legs after a year in the doldrums. While medical marijuana is still a year or so away from being operational, the decriminalization law has already impacted hundreds of would be defendants, cops, state’s attorneys, and of course criminal defense lawyers. It is difficult to imagine that this year’s session will produce the same type of splash, but advocates of legalized recreational marijuana would certainly beg to differ.