Baltimore Criminal Defense Lawyer Blog
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potgrowMaryland officials aiming to preliminarily approve medical marijuana grower and distributor licenses by mid January appear to have been way off in their time estimates. The state received almost 900 applications before the November 6th deadline, which apparently far exceeded their expectations. These low expectations were in spite of constant media buzz around the budding program, and jam-packed commission meetings that often had to be moved to larger venues. To be fair, it wasn’t only the members of the Medical Cannabis Commission who were surprised by the torrent of applications; many of the applicants themselves as well as industry insiders expected a lower turnout in part due to the cost and the complexity of the applications. State officials agreed on a $2,000 price tag to simply file grower applications, which were a minimum of 50 pages in length and extremely tedious. But the lure of massive profits seemed to good to pass up for the 102 interested growers and the 780 prospective distributors that paid around $1 million in licensing fees. As it now stands there is no estimate on when the licenses will be awarded, and therefore the day when we will actually see functioning medical marijuana in Maryland has yet again been pushed back.

This newest delay will certainly affect patients who have continually been let down by the snail’s pace of the program. Thousands of Marylanders are currently suffering from debilitating diseases that marijuana could unquestionably mitigate or treat. These patients are either forced to live in pain, taking highly addictive narcotics, or risking criminal punishment for buying or growing their own marijuana. None of these options is acceptable in light of the available information we have about the benefits of pot. In addition to the suffering patients, the medical cannabis investors also stand to feel the negative affects of further delays. Most of the investors have already secured real estate for their prospective operations and are either paying rent or taxes on their non-revenue generating property. The applications were very clear in their preference for growers who were ready to begin production at the drop of a hat. This not only meant selecting space, but developing precise plans for security, inventory, climate control, delivery, and disposal. Granted, all of the investors have assumed some sort of risk for the simple fact that their opportunity to profit was far from guaranteed. But those who are not selected would surely like to cut their losses and invest elsewhere rather than wait months for an answer from the commission.

The Blog will continue to follow any new developments with respect to the medical marijuana program and in general with all things regarding controlled substances and the law. As regular readers are well aware the progress of Maryland marijuana laws has always been a subject of particular interest. We have already witnessed reduced criminal punishments transition to decriminalization, and we will be there when the first medical dispensaries hopefully transition to retail stores.

Benjamin Herbst and The Herbst Firm represent defendants charged with all criminal offenses including manufacturing marijuana and possession with intent to deliver. Contact us at 410-207-2798 for a free consultation about your case anytime.


Booming interest in marijuana licenses is expected to delay medical program,

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bullet-408636_640Regular readers of the Blog are aware that Maryland has enacted some of the toughest gun laws in the country. We have published numerous articles on this topic, including the red tape inhibiting law-abiding citizens from owning guns and obtaining concealed carry permits. Truth be told, it’s near impossible for an average Joe with no criminal record and a 9 to 5 job to be able to carry a handgun in our state. And while purchasing a gun is hardly an insurmountable task, it’s not walk in the park either. As far as criminal defendants are concerned, there are numerous statutes that include mandatory minimum jail sentences for gun crimes. Convicted felons or those previously convicted of a violent crime such as assault that are found in possession of a handgun face a daunting 5-year mandatory minimum prison sentence. In fact even those without a criminal record face the possibility of a 30-day minimum sentence for wearing, carrying or transporting a handgun. In addition there are numerous gun enhancements within other criminal laws such as the mandatory sentence for possession of a handgun in a drug trafficking crime.

While the state gun laws range from a pain for lawful buyers to a potentially life changing sentence for defendants, they also affect manufacturers and shop owners. The shop owners can’t sell as many guns because the laws dissuade potential buyers from taking the plunge. Sure, the gun lover will always be a good customer who is willing to deal with the red tape. But the new buyer, the one who is interested but has never owned a gun, is more likely in Maryland to say it’s just not worth it, and spend the money elsewhere. And finally there are the gun manufacturers. These manufacturers are hardly as sympathetic as the buyer or the local shop owner, but the burden of strict gun laws weighs on them as well.

Fifteen years ago the legislature enacted a law requiring gun manufacturers to fire a bullet in every gun they wished to sell in Maryland and then to send the spent casing to state law enforcement. Upon receipt the state police cataloged each casing and store them in the basement of its Pikesville headquarters. The goal was to build a massive database of every gun in the state for a crime-solving tool known as ballistic fingerprinting. On a microscopic level each gun leaves slightly different markings on the casing and the projectile, so in theory a casing recovered from a crime scene could be matched up with a specific firearm. With respect to the Maryland program the theory never played out once in 15 years. The state has spent over $5 million to record and store over 300,000 casing, and none of which have ever been attributed to solving a crime.

The explanation for this failure is simple, and should have been anticipated by lawmakers pushing for the program back in 2000. Guns that are legally purchased are hardly ever used by the owner in a violent crime, and when they are the police will typically have more than enough evidence for an arrest. This is especially true in the first 15 years of the life of the gun. The program’s intended benefit is to solve cases where there are limited leads such as shell casings left at the crime scene. But these casings are typically from stolen guns or guns that have been bought and sold numerous times without record. After no success and the increased cost of storing the casings, the state has recently decided to scrap the program. There is talk of selling off the brass casings for scrap metal, but no confirmation has been given if this is an actual possibility. For now it’s just another failed government program where nobody has actually been held accountable.

Benjamin Herbst is a criminal defense lawyer who handles gun charges in all Maryland state and federal jurisdictions.  Contact Benjamin for a free consultation anytime at 410-207-2598.


Maryland scraps gun “fingerprint” database after 15 failed years,

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graphics-882726_640A jury recently found a veteran FBI agent guilty of assault after a three-day trial in the Montgomery County Circuit Court last week. The charges stemmed from an incident involving the custody exchange of a child, where the father was allegedly two hours late. A bystander captured the entire incident on a cellphone camera, which ultimately led to the agent being indicted for felony first degree assault, use of a firearm in a crime of violence, and misdemeanor second degree assault.   Video shows that the agent, a friend of the mother of the child, was angry with the father for being late and repeatedly called him disrespectful. The agent, who was off duty and dressed in plain clothes, kept pressing the father and followed him outside of a Chevy Chase apartment building to continue to voice his displeasure. During the argument a 15 year-old boy intervened and questioned why the agent was getting involved, as he was not part of the family. At that point the agent suddenly struck the boy with and open hand to the chest that sent him tumbling down to the sidewalk on his back. As the boy picked himself up the off duty agent then attempted to place him under arrest. A brief struggled ensued, but ended quickly when the agent pulled out a handgun and threatened to shoot the boy if he didn’t comply.

After receiving a copy of the video the State’s Attorney decided to present the case to a grand jury, which ended up finding probable cause to charge the agent with the three aforementioned offenses. The jury sitting in the trial court did not feel the evidence warranted convictions for the two felony offenses and acquitted the defendant on the most serious counts. But the jury agreed with the state of Maryland that the evidence supported a finding of guilt for second degree assault, as the agent had no legal authority and no defense for striking the boy. The agent’s lawyer argued unsuccessfully that the agent felt imminently threatened by the 15 year-old boy, and therefore struck him in self-defense. But the jury saw through this argument, which was hardly supported by the video.

As the verdict was announced the agent, a 20 year veteran of the FBI and current high ranking counterterrorism officer, became faint and had to be transported from the courtroom by ambulance. The case was reset until this week to deal with post-verdict matters such as setting a sentencing date and deciding whether the defendant will be allowed to keep his firearms. In Maryland a person convicted of a crime of violence such as assault is not permitted to possess a firearm. Although the defendant has been found guilty, he has not been convicted. The judge could impose a probation before judgment, which would not be considered a conviction at the January sentencing date. The Blog will track this case and may post a follow up article after the sentencing hearing, which is bound to be a tense affair. If the agent is adjudicated guilty it’s hard to see how he could remain an active duty federal law enforcement officer. But the FBI will make its own decision on that matter, and will not likely offer any explanation either way. Discipline from his employer as well as from the court seems like a given though, due to the agent’s embarrassing and violent outburst. As a law enforcement officer he was supposed to keep the peace, but instead the agent provoked a situation and ended up assaulting a private citizen, who happened to be a 15 year-old boy no less.

Benjamin Herbst is a Maryland criminal defense lawyer who specializes in assault cases and other violent crimes. Contact Benjamin for a free consultation anytime at 410-207-2598.


FBI agent guilty of assault in an incident caught on cellphone video,

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bodyworn-794100_640Almost a year ago we posted an article about the Baltimore Police mulling the use of wearable cameras for patrol officers in order to promote transparency and reduce police misconduct. Many predominately urban police departments around the country had at that time already installed body camera programs, including the Laurel police department in Prince George’s County. Less than six months after that article the Baltimore Police Department was the headline of every news outlet in the country after the death of Freddie Gray and the riots that followed. This negative media attention only served as further motivation for the shamed department to end the perception that their officers have little regard for the citizens they serve. Whether the riots actually convinced city politicians to act is a moot point, as the powers that be put ball in motion earlier this week. On Monday the city launched a two-month test program that will equip more than 150 city police officers with digital body cameras. The cameras come from three different manufacturers that are all competing with each other to win the contract to supply the whole force, and with over 3,000 officers this is bound to be a highly lucrative deal.

The pilot program was announced at a news conference from police headquarters, but the department declined to go into detail just how it will be managed. Rather, police officials simply laid out a basic overview and explained that final regulations are still in draft status. This tight-lipped approach did not sit well with media members and local politicians who have been critical of the department.   Some have questioned the motive behind withholding the details of a program that was specifically designed to promote transparency. What the department did divulge is that the select group of 150 officers is from the east, west, and central districts. These officers will be instructed to activate their cameras upon making contact with civilians, and they themselves will be the ones responsible for uploading the footage to offsite cloud based servers managed by the camera vendors. Civilians may ask the officers to turn of their cameras, although it is unclear when the cops will actually adhere to theses requests. It is also unclear what types of safeguards are in place if an officer fails to upload video footage, or if a camera is damaged or destroyed.

Although the department’s reluctance to share the details of the pilot program certainly seems odd and even a bit hypocritical, it does not seem like a major cause for concern at this point. There are many unknowns right now, and at this point the city has not chosen a camera supplier. Each of these camera systems will have numerous distinctions, so the value of spending time fine-tuning regulations is minimal at this point. The city is better served putting the program in motion and gathering data to make their final decision. Those responsible for drafting the final policy regulations will learn a lot over the next two months, and the Blog will be following closely when it comes time to choose a specific camera system. We may post an article at that time, and an update this spring when body camera legislation is bound to hit the floor of the state legislature in Annapolis.

Benjamin Herbst is a Baltimore criminal defense lawyer who handles cases in all state and federal courts in Maryland.  Contact Benjamin about your case anytime at 410-207-2598.


Baltimore police officers begin wearing body cameras,

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marijuana-673845_640In September we published an article about the Anne Arundel County executive’s inexplicable crusade to ban medical marijuana form his jurisdiction. At the time the top local politician in Annapolis seemed dead set on undermining the state medical marijuana law by zoning it out of existence. In Maryland local politicians do very little legislation; their power is mainly derived from a near monopoly when it comes to zoning regulations. This includes both residential and commercial zoning decisions, and often times these regulations can have multi million dollar consequences for builders, developers, and investors. The executive’s proposal to prohibit countywide zoning for medical marijuana grow facilities and dispensaries may never have gained enough support to pass, but it no doubt unnerved investors and angered thousands of citizens and dozens of state lawmakers in the process. It was only recently put to bed for good, when the executive recently announced he will instead promote legislation that will make zoning laws for medical pot as strict as possible.

In a statement after a recent counsel meeting the executive boasted that Anne Arundel County would have some of the strictest zoning laws in the state. Among the regulations include provisions that no dispensaries or grow houses shall operate within 1,000 feet of schools and homes, and all will be prohibited from window displays of marijuana. These regulations are similar to those in Baltimore County, which also drew ire from state lawmakers who feel regulations under the medical marijuana program should be uniform throughout the state. The commission is set to start accepting grower and distributor licenses on November 6th, with the highly anticipated decisions over who gets the sought after licenses coming during the winter. Some investment groups have raised over ten millions dollars to assure their bids will be the most qualified, and losses from not receiving a license could approach seven figures. After the licenses are awarded the investors could still hypothetically face zoning hurdles with their respective local governments. Many of the investment groups have already selected sites for grow facilities and dispensaries, but it would behoove all  to be flexible.

The next few months are setting up for a true roller coaster ride for investors and others looking to cash in on medical marijuana. One can only hope that the process will play out smoothly, but with so much money at stake feathers are bound to be ruffled along the way.   This wouldn’t be the case if the commission had been a little more flexible with the number of licenses available. There is really no reason to limit the grower and distributor licenses, as it would make much more sense to award licenses to all qualified applicants. More applications would generate larger fees, thus allowing the program to have the funding to regulate all the participants. Plus the market would truly be free, and only the most efficient operations would survive. A competitive market would ultimately lead to patients having access to cheaper and higher quality medication. But we should never expect the most efficient outcome when it comes to government programs, and judging by how long it has taken Maryland to get its act together on medical marijuana, we should just be glad it’s actually happening.

Benjamin Herbst is a Maryland criminal defense attorney who specializes in drug crimes such as distribution of marijuana and possession with intent.  Contact Benjamin to set up a free consultation about you case anytime at 410-207-2598.


Maryland county backs away from proposed medical marijuana ban,


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pills-943764_640The Maryland State Police recently announced one of the largest drug busts on the Eastern Shore over the last few years. On Tuesday a combined law enforcement initiative known as the Wicomico County Narcotics Task Force executed a search warrant at the home of a suspected heroin dealer. Two suspects, a 33 year-old male and a 33-year-old female, were arrested after police found 2.5 pounds of heroin, with a street value of approximately $500,000. Law enforcement also seized over $100,000 in cash, scales, plastic baggies, drug paraphernalia, ammunition, and three firearms. One of the firearms was a .22 caliber automatic assault rifle with a high capacity magazine and an obliterated serial number that prevented it from being identified. The other two firearms were handguns that had been reported stolen. One was a .357 revolver taken from Somerset County, and the other was a .40 caliber semi automatic pistol with an illegal extended high capacity magazine. The pistol had been reported stolen from Worcester County. The male suspect is being held without bail at the Wicomico County Detention Center, while the female was released after posting a $25,000 bail. Both have preliminary hearings set in the District Court, which will likely be cancelled after the cases are presented to a grand jury.

The investigation of the male suspect began back in January of this year, and law enforcement soon realized that they were potentially dealing with a large-scale heroin distributor. The narcotics task force, made up of state and local police departments including the Salisbury and Fruitland police departments and the Wicomico County Sheriff’s Office, conducted extensive surveillance of the male suspect and the residence that was searched. Police likely used multiple confidential informants and undercover officers to maximize the amount of evidence used in securing the search warrant. Nobody was injured when the search warrant was carried out this week, although a dog was shot and killed when it allegedly ran toward an undercover officer in an aggressive manor.

Upon consulting with the State’s Attorney’s Office, police eventually charged the pair with multiple drug and weapon related felonies, some of which carry minimum mandatory prison sentences. Both are currently charged with a violation of the CDS possession of a large amount statute that is part of the state law against volume dealers. This law is particularly harsh when it comes to heroin and other opioids, as only 28 grams are required to trigger a large amount charge. For comparison sake the 2.5 pounds that police allegedly found in this bust amounts to over 1,100 grams. This statute provides a minimum punishment of 5 years in prison, which upon conviction cannot be suspended and defendants are not eligible for parole. The pair is also charged with three counts of possession of a firearm in a drug trafficking crime, and each of these charges also carries a minimum 5 years without parole. Other charges include possession with intent to distribute and illegal possession of a firearm. The male suspect is also charged with firearm possession by a convicted felon because he was found guilty of felony CDS distribution of narcotics in 2004.

The Blog will follow this case and may post a follow up article if any interesting developments occur. In the meantime stay tuned for our weekly takes on Maryland criminal law events and issues. Benjamin Herbst is a criminal defense lawyer who handles drug trafficking and firearm crimes in all jurisdictions. Contact Benjamin by phone at 410-207-2598 or email at for a free consultation anytime.


Wicomico Co. Drug Task Force Arrests Two and Recovers Heroin and Stolen Guns,

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mobile-phone-426559_640The Howard County Police recently reported that social media has led to the arrest of two burglary suspects, whose crime spree spanned multiple counties. One of the suspects is a 46 year-old male, while the other is a 22 year-old female. Both are accused of felony first-degree burglary and theft in Howard County and in Baltimore County, and the pair is currently in custody awaiting trial in the Baltimore County Detention center. Other charges include 4th degree burglary and false documentation. The alleged burglaries, which occurred 10 days apart back in August, have been indicted by a grand jury and will now be brought before a circuit court judge. The two suspects were not caught in the act, and managed to steer clear of law enforcement for almost a month. Ultimately though the pair was identified after the Howard County Police utilized social media in an attempt to generate leads. The modern crime-solving tool proved successful; arrest warrants were issued in the first week of September and both suspects were jailed less than two weeks later.


While police have only been utilizing social media for a few years, this crime-solving tactic has gained a tremendous amount of steam. Almost every law enforcement agency in the country has some sort of social media outlet such as Twitter or Facebook, and now it has become commonplace to ask the public for tips through these outlets. Law enforcement embraces the same benefits of social media as any business or private citizen. Social medial allows police to reach a large number of people at a fraction of the effort and cost of traditional methods such as billboard or television. The Howard County Police Department has roughly 38 thousand followers on Twitter, and can reach each of these followers immediately with a two-line tweet that takes a minute to type. The Baltimore County Police Department is a little behind with roughly 13 thousand followers, but even with this smaller number the effects can be considerable.


In addition to police departments soliciting information about crime through their own posts and tweets, law enforcement also takes advantage of social media in other ways. There have been numerous cases where police linked up stolen property to a person’s Facebook account. This usually occurs when the thief is attempting to sell the hot goods online, but it could also be in the form of posts and pictures of the suspects with the stolen property. In other crimes, Twitter accounts could also reveal where a suspect was at a specific time, and whom that suspect was with. Police detectives have now made it a habit to scan the social media accounts of all their suspects. In criminal cases involving juvenile or young adults police will often scan the Facebook, Twitter, and Instagram accounts of friends and classmates of the defendants and victims. The results have ranged from generating probable cause for a warrant, all the way up to providing prosecutors with evidence at trial. Defense attorneys are now seeing discovery packets laced with screen shots and printouts from social media sites. The public format of these sites makes the evidence difficult to suppress, as no warrants are required to scan a person’s Facebook or Twitter accounts.


Law enforcement across the country will continue to utilize social media to solve crime, and the Blog may post a follow up article the next time a major case is cracked using this pervasive technology.  Benjamin Herbst is a Maryland state and federal criminal defense lawyer who handles all charges including burglary and theft. Contact Benjamin for a free consultation at 410-207-2598.



Police: Social media helps lead to arrests in burglary case,

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hammer-620011_640One year ago today Maryland made national headlines for officially decriminalizing simple marijuana possession, while back home the statewide buzz over decriminalization overshadowed each of last year’s new laws. The climate is vastly different this October 1st, as almost all the media attention is focused on an approaching hurricane rather than the on statue books. But there are a few new laws effective today in the criminal arena that have the potentially to dramatically impact the lives of thousands of Marylanders. One of these laws is actually related to decriminalization, and was likely the inspired by lawmakers taking simple marijuana possession off the criminal books. Starting today anyone convicted of an offense no longer classified as a crime under state law will now be able to apply for expungement. This is huge news for the far too many that have been carrying around the baggage of an unwarranted criminal record for years. The large majority of these cases will undoubtedly be for possession of less than 10 grams of marijuana, which will no longer be a permanent scar on a person’s background. In addition, those who received probation before judgment for possession less than 10 will no longer have to wait three years to apply for an expungement, as applications may be filed immediately, or in some cases as soon as probation terminates.

In addition to expanded expungement, the aptly named second chance law also goes into effect today. This law will allow those convicted of certain nonviolent misdemeanors to shield their conviction from public view after 3 years. The eligible offenses include disorderly conduct and disturbing the peace, failure to obey a law enforcement officer, malicious destruction of property less than $500, and trespass on posted property. Other offenses include possession of drug paraphernalia, possession of a noncontrolled substance, and prostitution. Soliciting a prostitute or assignation is specifically excluded from the shielding statute. The second chance law also applies to certain misdemeanor traffic offenses such as driving on a suspended license or without a license and driving while uninsured.

In addition to the three year wait, which begins after parole or probation has ended, defendants wishing to avail themselves of the shielding statute must also be aware of other conditions. One important limitation is that person may only shield prior convictions once during his or her lifetime; so choosing wisely when to apply is of great importance. The statue was designed to give a prior offender one free pass when it comes to seeking employment or applying for school or some professional licenses, but it was not designed to give two or more free passes. If you apply to shield your prior convictions you must do so with the knowledge that it’s a one shot deal. Another provision prohibits shielding one particular conviction if there is a non-shieldable conviction attached to it. Finally, if an applicant incurs a new conviction during the three-year wait period, he or she will be prohibited from shielding the original offense unless the new offense is also eligible for shielding.

Perhaps the most important shielding law provision is that the legislature provided it with teeth. Once a conviction has been shielded from the public record the statue prohibits a host of agencies from asking about it, and it punishes those agencies for discriminating against a person who refuses to disclose its details. Schools, licensing agencies and employers face up to a $1,000 fine for violating this provision. There are numerous agencies that are exempt from the provision (such as the medical marijuana commission), but for the most part it provides the necessary muscle to assure the statute succeeds in doing what it was created to do, which is to offer a second chance.

Benjamin Herbst is a Maryland criminal defense attorney who handles all types of cases including misdemeanors such as disorderly conduct and malicious destruction of property and traffic offenses such as driving on a suspended license.  Contact Benjamin for a free consultation anytime at 410-207-2598.

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medpotAs close as we are to fully functioning statewide medical marijuana, it still seems at times as if the day may never come. The Governor approved the General Assembly’s medical marijuana proposal almost six months ago, and applications for grower and distributor licenses are on the brink of being processed. But now local politicians are attempting to disrupt the progress of state lawmakers and appointed department of health commission members, while at the same time ignoring the will of a large majority of Maryland citizens. This local power wielding started a couple months ago when a Baltimore County politician proposed increased zoning restrictions on dispensaries and grow houses. The Baltimore County Council passed these regulations earlier this month, but their utility was challenged by the County Executive and state lawmakers from the area. Both described the increased local regulations as unnecessary because of the comprehensive nature of the state regulations, which already address the location of grow houses and dispensaries. While the increased zoning regulations in Baltimore County might be entirely an act of grandstanding for local politicians, at least they will not severely hinder the progress of the state medical marijuana program. The same cannot be said for an Anne Arundel County politician’s proposal.

The Anne Arundel County Executive is set to introduce legislation tonight at a council meeting that would prohibit the sale and production of marijuana anywhere within county lines. This legislation would be a slap in the face to state lawmakers, the governor, and the majority of the people of the state of Maryland who all want a statewide functioning medical marijuana program. The executive’s reasons for moving to ban medical marijuana from Anne Arundel are the same old rhetorical outdated nonsense. He rants about marijuana being a gateway drug, and potentially causing economic stagnation and increased criminal activity. These arguments are tired and ill informed, and none have any relevance to the issue of marijuana for medical use. The executive wants to deny patients the ability to obtain something that has been proven without a doubt to make them feel better because he, and others of his generation and background have a personal vendetta against marijuana and its culture. Thankfully the legislation is likely to fail in the county council, but we will update the Blog when an actual vote occurs.

The Anne Arundel politician also sites the fact that medical marijuana will simply lead to legalized recreational marijuana, and he will not stand for that in “his” county. Again he offers not one logical and factually supported argument of why recreational marijuana would contribute to increased crime or economic stagnation. If the executive is worried about increased criminal activity from legalized drug use it really doesn’t show, as his very own Annapolis is lined with more bars per square mile than almost every other city in Maryland. Alcohol is celebrated and imbedded in the culture of our waterfront capital city (and every other city and town in the country), and yet empirical data shows is causes more death, illness, and violence than all other drugs combined. It’s legal because people enjoy it and it generates billions of dollars in commerce. Why does everything have to be good for you in order to be legal, and since when does the government know what is good for you anyway? One day marijuana will be legal as well for the same reasons, because people enjoy it and want to do it. Yet unlike alcohol it will not bring with it thousands of documented deaths per year, and it will not be a contributing factor to an even greater number of incidents of violence.

Benjamin Herbst is a Maryland defense attorney who handles all criminal charges including drug and alcohol offenses.  Contact Benjamin anytime for a fee consultation at 410-207-2598.


Medical marijuana ban runs into doubts,

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school-417612_640A Baltimore County 8th grade boy was arrested last week and now faces assault charges for allegedly kissing a female classmate. Police officers responded to Pikesville Middle School on Wednesday after school administrators reported that the 13-year-old boy grabbed a 14-year-old female by the shirt, and then kissed her on the mouth without her permission. The female was also an 8th grade student at Pikesville Middle. The boy stated to officials that he kissed the girl in response to a dare from fellow classmates, and now the incident has sparked national debate whether the incident should have been handled differently. School officials could have handled the incident internally under the student code of conduct, but instead opted to involve county police. The officers who responded to the scene acted under state law in charging the boy with misdemeanor second degree assault. This offense carries a maximum penalty of ten years in jail, but because this incident will be filed as a juvenile case the statutory maximum penalties do not apply. A juvenile filing also means that all information about the case will be under seal and off limits to the public. If the state’s attorney’s office decides to prosecute the case it will be heard in the circuit court in Towson.


Unlike other jurisdictions, Maryland classifies the crimes of assault and battery under the same statute. Under the traditional common law assault is generally defined as a threat to do harm combined with the apparent ability to carry out the threat, while a battery is defined as an intentional and unwanted physical touching. In other states this incident would have likely been classified as a simple battery case, but here it falls under the umbrella category of assault. Injury is never a required element of a simple battery, and the same applies for the second degree assault law used in our state courts today. The girl involved in the kissing incident was not injured, but she did not consent or welcome the kiss. Clearly the act was intentional, which means the two basic elements of a crime were satisfied. But whether a crime on paper actually happened, and whether the criminal justice system should be involved are two separate issues.


There are compelling arguments for both sides of the controversial kissing arrest. On one hand you have to maintain the message that any type of unwanted physical touching will not be tolerated, with our society demanding even more emphasis placed on unwanted sexual contact. If the potential punishment is not severe enough there will be minimal deterrent for this type of behavior in the future, which has the potential to escalate to other more serious violations than a kiss on the mouth. On the other hand, you have to take into account that the accused is a 13-year-old boy who lacks the ability to completely understand and evaluate his actions. This is not to say that punishment and accountability are inappropriate in this particular incident, but subjecting a 13-year-old to an arrest and criminal prosecution is undoubtedly a traumatizing experience that may not be warranted under these facts. Ultimately it will be up to the state’s attorney’s office whether to pursue this case in criminal court, and they will likely involve the victim and her parents in the decision. The Blog will follow this case and may post a follow-up, with the caveat that a sealed status could limit information that is available to the public.

Benjamin Herbst is a juvenile criminal defense attorney who handles cases in all Maryland courts.  Contact Benjamin for a free consultation anytime at 410-207-2598.


Pikesville kiss sparks outrage: 13-year-old arrested for kissing girl, 14,