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handcuffs-2102488__480-300x169Finding out that a friend or loved one has been arrested is frightening and stressful, but having the feeling that you can’t do anything about it is worse. The laws applying to bail have changed drastically in Maryland over the last couple of years and understanding how to navigate around these laws could mean the difference between release and an extended stay at Baltimore City central booking or one of the state’s county jails. In most cases when a person is first arrested he or she will be taken before a district court commissioner who will check to see if there was probable cause for the arrest and who will then make a determination of release conditions.  This usually happens within a few hours of the arrest, but some in some of the larger jurisdictions it could take longer.

Court commissioners are not judges, lawyers or even law school graduates, and they are not required to have any extensive legal training. A bachelor’s degree and county/ city residency are all that are required for the appointment to serve as a commissioner. The prerequisites to become a court commissioner are light and severely contrast with the power to put someone in jail by signing off on an arrest warrant or to keep someone in jail by denying bail. Thankfully around half of defendants are released on their own recognizance, and will regain their freedom within an hour or so of speaking with the commissioner. But the other half face the possibility of remaining in jail until their case is closed if the case is not handled properly.

As a friend or family member there is not much you can do to influence the court commissioner’s decision at the initial appearance because they are not public hearings. Defendants are afforded the right to have an attorney present when they go before the commissioner, so the best approach is to try to hire a lawyer immediately. Realistically though this is not always possible, and the first time you may hear about the arrest could be after the defendant sees the commissioner. Those that are denied release will be scheduled for a bail review in front of a district or circuit court judge the following business day. Most of these hearings take place by video, but the defendant has an absolute right to have a lawyer present. The first bail review is the best shot and in some cases the only chance before trial to secure release, so it’s incredibly important to be prepare beforehand and ready to argue at the hearing.

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weed4-300x194This week in Annapolis lawmakers debated bill that would pave the way for the legal recreational use of marijuana in Maryland for any person over the age of 21. Senate bill 1039 proposes an amendment to the state constitution, which should signal just how serious lawmakers are about legalization becoming state policy. Along with the ability to consume marijuana, the law would allow for the possession of up to 1 ounce of flower and 5 grams of concentrate. State residents would also be permitted to grow up to 6 marijuana plants in their home or other private property, as long at the cultivation could not be viewed by the public without the use of visual aids. A small caveat to legally growing under the proposed law is that no private citizen would be permitted to have more than 3 mature and flowering plants at one time, thus the process of cultivation would have to be spread over time. The limits on the amount of pot that a person may legally possess do not apply to that which is grown in the home. In other words a citizen could have three flowering plants that yield over a pound of pot, and it would be legal to possess all of it inside private propery. Other provisions of the senate bill include the ability to share up 5 grams of cannabis with another person who is over the age of 21. Sharing means not receiving anything of value in exchange for the pot, so no bartering of t-shirts, concert tickets etc. would be allowed.

If and when the bill eventually becomes law (whether it be this year or some time in the future) there will be limits on what legalizing marijuana actually means, and also some protections for those who choose to use marijuana. Legalization does not mean employers would have to make accommodations for employers who want to use cannabis at the workplace, and these employers could decide to ban the possession of cannabis at work. Employers would be protected if they decided to fire an employee for violating a workplace drug policy that barred marijuana use. Laws that currently apply to tobacco smoking in public places would also apply to cannabis under the new proposed legislation. A business that permits tobacco smoking on its premises could also allow pot smoking as long as there is no access by individuals under the age of 21 and the business is compliant with local ordinances. Another important provision is one that bars a landlord from prohibiting tenants from consuming cannabis in forms other than smoking. Most residential leases have provisions barring the use of drugs on the building property, but marijuana would not be considered a drug under the proposed law.

In addition to establishing basic regulations for recreational marijuana, the bill would grant authority to the General Assembly and the State Comptroller to establish licensing and taxing regulations for the marijuana commerce. Lawmakers wrote into the bill that their goals in crafting cannabis policy are to remove the production and distribution of cannabis from the illegal market, and to eradicate profits generated for criminal enterprises through the sale of marijuana. In addition lawmakers will emphasize the goal of keeping marijuana out of the hands of individuals under the age of 21.

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police-224426__180A federal jury recently found two former Baltimore Police officers guilty of robbery and racketeering after a two-week trial, and both now face up to 60 years in prison when they return to court for sentencing. The convicted officers join six others who already pled guilty over the last few months, which brings the total to eight corrupt cops that were part of a disbanded police unit dubbed as the gun trace task force. Four of the officers that previously pled guilty were called as witnesses for the government and testified against their former colleagues, no doubt in an attempt to secure lighter sentences for themselves. In addition, a former member of the task force that refused to engage in criminal activity and later transferred out of the unit testified for the government. The government called numerous victims, many of whom were admitted drug dealers who were robbed, beaten and threatened by the task force cops. Prosecutors also produced body camera footage and wire tapped conversations dating back to 2015 when the federal investigation first began after the DEA heard incriminating statements by an officer during a wiretapped conversation on a suspected drug dealer’s phone.

The case turned out to be a truly lopsided affair where the government was able to prove the corrupt cops stole cash, drugs and guns, falsified police reports and search warrant affidavits, lied about worknhours to inflate their salaries, and broke into houses of residents under the guise of legitimate law enforcement activity. The shamed officers were also accused of providing security for large drug deals in exchange for compensation and failing to provide aid to individuals that were hurt in a high-speed car crash that had no legitimate law enforcement purpose. One of the only reasonable arguments presented by the defendants were that the crimes amounted to theft and not robbery and racketeering, which had been alleged by federal investigators, but the jury thought otherwise and convicted each defendant of the highest charged offenses.

The trial may be over and the news trucks have left the Baltimore federal courthouse for the time being, but the effects of this scandal will be felt for years to come. The city already has a new police commissioner and the head of internal affairs has since been reassigned. Hundreds of prior convictions are subject to being overturned and the State’s Attorney’s Office is coming under scrutiny for prosecuting cases were the corrupt officers were involved. It has been alleged that the credibility of many of the task force cops had been called into question long before the federal investigation became public, but prosecutors pursued their cases anyway. In Annapolis one state delegate proposed that the entire police department should be disbanded and reformed as a new entity, which is exactly what took place in Camden, New Jersey. The mayor of Baltimore brushed off the call for disbanding the police department and maintains that the corruption was limited to a small number of few bad apples. While disbanding won’t happen at this point, it is telling just how bad the situation has become downtown. The justice department issued a scathing memo to the BPD back in 2016 and will continue to monitor the way BPD conducts business. If new allegations of corruption resurface you can bet that the federal government will be the first to step act.

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drink-driving-808790_960_720-300x200Despite rarely appearing in statistical crime reports, drunk driving is one of the most common jailable offenses committed in Maryland each year. The number of yearly statewide drunk driving arrests is in the thousands, and hundreds of these are the direct result of an accident causing death or serious injury. The penalties for driving under the influence or while impaired are about average in relation to other states in the country, but in the last few years there has been legislation to make these penalties progressively harsher. Lawmakers recently added mandatory engine interlock in certain cases and increased the length of license suspensions for testing over the legal limit or for refusing the test. Despite the recent progress Annapolis lawmakers are far from finished, and will continue to modify drunk driving laws. This year a bill is on the table in both houses that may not come into play as often as mandatory interlock and long license suspensions, but it’s one that will send a clear message to repeat offenders.

While a first time offender can be sentenced to as much as a year in jail for committing a DUI it is still classified as a traffic offense, and even multiple convictions will not technically leave a person with a criminal record. As the laws are currently written in the transportation code the stiffest penalty for a drunk driving case is three years in jail, and this only applies on the third or subsequent conviction. There are other factors that may escalate the sentence such as drunk driving with a minor in the car, though even with enhancements a DUI or DWI is still considered a misdemeanor traffic offense regardless of how many times the defendant has been convicted. Maryland law does not allow for the expungement of a DUI or DWI even if the defendant has received a probation before judgment, so there will always be a record of a case where defendant pleads guilty or no contest. This is a harsh consequence, but based on the new bill it appears that Annapolis lawmakers believe simply being barred from expungement and increasing possible penalties is not enough of a deterrent to drive drunk.

If new bill ends up becoming law later this year it will take drunk driving laws to a new level, and one that many states currently have in place. The call from lawmakers is to classify a standard DUI or DWI charge as a felony with a 10-year maximum jail sentence and a possible $10,000 fine provided the defendant has certain prior convictions. Specifically the bill would establish that anyone with a prior conviction for vehicular homicide or manslaughter by vehicle or vessel is subject to being charged with a felony if they are arrested for drunk driving. This includes manslaughter from criminal negligence or gross negligence. It also could give the state the power to charge felony DUI if the defendant has three or more prior convictions. No other aggravating factors need to be present in order for these enhanced penalties to come into play, and the only requirement on the state to charge felony DUI would be that they notify the defense 5 days before trial in the district court and 15 days prior to trial in the circuit court.

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thief-1562699__480-300x200Police recently announced the arrest of three suspects in more than twenty home burglaries in the Falls Road area of northern Baltimore County. The burglaries have placed the entire community on edge since the fall when the crime spree first began. Residents became frustrated over the lack of arrests or leads, and showed up in the hundreds at two separate community meetings to voice their concerns to law enforcement. Just days after the last community meeting in Timonium police caught a break after a witness observed an SUV with North Carolina plates in the area of a recent break in. Officers located the suspicious SUV and began to follow the driver until he pulled over and attempted to flee. This suspect was apprehended shortly thereafter, while the other two were located in the woods after a brief manhunt using helicopters and K9 units to track the suspects. After executing search warrants and speaking with victims police estimate the total value of stolen items to be over a million dollars, and law enforcement is not ruling out the possibility that additional suspects with involvement could remain at large.

All three defendants are being held at the Baltimore County Detention center on numerous counts of first degree burglary. Under Maryland law first degree burglary is defined as breaking into a dwelling or home with the intent to commit a theft, and is classified as a felony with a maximum prison sentence of 20 years. Despite mandates ordering district court judges to impose the least restrictive means to ensure the presence of the defendant at future court hearings all three defendants were denied bail, and now could be forced to wait for weeks or even months in custody until their cases are resolved. The two main factors judges consider at bail review hearings are whether the defendant poses a danger to the community and whether the defendant is a flight risk. In these three cases the bail review judge ruled that both red flags were present, as the state likely argued breaking into homes poses an imminent danger to the community, especially when the homeowners were present as has been alleged in a number of these cases.  Additionally, first degree burglary is considered a violent crime in Maryland under the criminal sentencing policy.  All defendants reside out of state and thus have limited ties to the community, which arguably would pose an elevated flight risk.

At the time of this post all three of the defendants do not have defense attorneys on record, though when they do decide to hire counsel the first matter to address will be their bail situation. It is uncommon for defendants who are not charged with a violent crime or a crime involving a firearm to be held without bail, and with proper preparation a lawyer may be able to convince a judge that release pending trial is justified. While each of the defendants faces a total maximum sentence of over 400 years the sentencing guidelines will call for much less. The three defendants are currently set for preliminary hearings at the end of February in the Towson district court, but the state will almost certainly file charges on these cases in the circuit court by way of indictment or criminal information. The Blog will track the progress of this burglary spree and may post a follow up article in the future so stay tuned.

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Ecstasy-300x174A host of potential modifications to existing Maryland criminal and traffic laws are currently up for debate in Annapolis. Many of these modifications could greatly affect the criminal justice system, while others will grab headlines but have very little impact in courthouses throughout the state. One bill that could have a huge impact on the justice system is a proposal currently in the House of Delegates that would effectively decriminalize the possession of small amounts of controlled substances. We’re not talking about marijuana here, as possession of a small or de minimis quantity of pot has already been modified from a jailable misdemeanor to a civil infraction. The lawmakers behind this bill want to decriminalize possession of small amounts of cocaine, heroin, MDMA, LSD, methadone and amphetamine as well.

The proposed House law is similar to the Marijuana decriminalization law that eliminated the possibility of jail time for possession of less than 10 grams. The ten-gram threshold was basically an arbitrary number that lawmakers agreed upon to differentiate between criminal possession and a civil infraction. Sponsoring delegates of the de minimis quantity bill have already settled on threshold amounts for all the other drugs covered under the proposed law. For cocaine, methadone and heroin lawmakers chose 300 milligrams, which is no more than a day’s supply for a regular user and much less than that for an addict. The threshold for MDMA and LSD would be five pills or tabs, and for amphetamine it would be 200 mg. If the law were to pass, anyone arrested with less than these amounts could not be arrested, but rather would receive a civil citation ranging from $100 to $500 depending on the prior number of violations. The law would also give the judge authority to order an offender under the age of 21 into a state approved drug education program.

If this bill were to become law it would have a groundbreaking affect on the amount of arrests across the state, and the criminal dockets (especially the bail review dockets) would shrink considerably, as drug offenses are still the most common genre of criminal cases in the district and circuit courts.  Decriminalizing simple drug possession could also impact the amount of probation violations throughout the state. The standard conditions of probation include the prohibition of using illegal substances such as cocaine and heroin, and while a civil citation for possession of one of these drugs would not be a new law violation it would qualify as a technical violation. Defendants on unsupervised probation would likely not be subject to any type of violation for receiving a civil drug possession citation.

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handcuffs-2102488__480-300x169Criminal laws were at the forefront of the last few Maryland legislative sessions as lawmakers tackled highly controversial issues with prior marijuana and narcotics laws. Medical marijuana became state law just a couple years ago and now dispensaries are already selling their products to registered patients. Last year the hot topic was eliminating lengthy mandatory prison sentences for non-violent drug cases and streamlining the procedures for parole and probation violations. Both of these goals were achieved with the passage of the Justice Reinvestment Act, which also lowered the potential maximum punishment for not marijuana drug possession. The threshold for felony theft was also increased from $1,000 to $1,500, and other theft crimes were altered to account for inflation. Compared to the last few years there is little buzz around Annapolis with respect to new criminal legislation, but lawmakers know that nothing peaks the interest of the voting base like crime and will act accordingly when contemplating ideas for potential bills

Human trafficking is one crime that has stirred up debate among state lawmakers at this early stage of the 2018 legislative session. A Glen Burnie delegate already proposed to change adult human trafficking, which has a broad definition under Maryland law, from a misdemeanor to a felony. Taken literally human trafficking means the buying, selling or trading of human victims that are forced to engage in labor or sexual activity. It is estimated to be a one to two hundred billion dollar industry worldwide. In Maryland this law comes into play to punish any type of activity that furthers the business of prostitution. This includes providing a place for a prostitute to engage sexual activity, inducing or enticing someone to become a prostitute or profiting in any manner from solicitation. A person who is commonly referred to as a pimp is the prime target for this law.

Recently there has been an influx of undercover sting operations targeting human trafficking in the Baltimore metro area. Many of these stings take place in Anne Arundel County at a variety of BWI Airport hotels, but Howard County and Baltimore County police departments also take part in these stings at other locations. Police typically make contact with potential suspects by posting fake adds on the website Backpages. After a potential John responds to one of these fake adds an undercover police officer posing as a prostitute will attempt to agree to offer sex for money in one of the hotel rooms. As soon as an agreement is reached (or sometimes before) the undercover gives the takedown signal and a team from an adjacent room barges in to make the arrest for solicitation. This type of sting does not usually result in information leading to a human trafficking arrest, but the goal is to try to decrease the market for paid sex and thereby reduce the amount of pimps and prostitutes. Human trafficking cases typically begin with the arrest of a prostitute who agrees to give police information about their pimp. It is a complete defense for a person arrested on prostitution charges to assert they were working under duress or pressure from a pimp, and police often use this portion of the law as a selling point for cooperation.

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weed4-300x194Maryland already has some of the toughest gun laws in the country, and now the medical marijuana program may contribute to even tighter restrictions on gun ownership in the state. The Attorney General recently went on record stating his office would no longer sit back and let the states implement marijuana policy without the threat of federal government interference. This doesn’t necessarily mean (we hope) that the DEA is plotting to raid recreational and medical marijuana grow houses and dispensaries across the country, but there is certainly some cause for concern. Here in Maryland the medical marijuana program just became functional after years of work by thousands of people who put in time and millions of dollars for the little green plant to become available with a doctor’s approval. The program is not going anywhere, so patients and investors probably need not fear the worst. But there may have to be some sort of effort to keep the feds at bay, and a firearms crackdown could serve this purpose.

In order to appease the justice department, the Maryland State Police may become more involved in policing long standing federal policy that users of illegal drugs are prohibited from purchasing or receiving guns. The gun control act under 18 U.S.C 921 lays out certain prohibitions for receiving a firearm, and a violation of this federal statute could be punishable by up to 10 years in prison and a whopping $250,000 fine. Each person who purchases a firearm in Maryland is required to fill out a federal firearms transaction record, which is monitored by the ATF. One of the questions on the form asks whether the gun purchaser is an unlawful user of marijuana, narcotics, or any other controlled substances, and then in bold type states that “the use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside”. A person who answers yes to this question is unequivocally barred from purchasing a gun, and a Maryland medical marijuana card will do nothing to prevent the feds from filing charges.

It is difficult to enforce the provision of the gun control act that bars illegal drug users from purchasing handguns for obvious reasons. Gun shops are not administering polygraph tests to prospective buyers, and the ATF cannot show up at a recent gun purchaser’s door to administer a drug test. But in Maryland all medical marijuana patients are required to sign a release allowing the state health department to disclose the identity of cardholders to the state police. This would give the state police all the ammunition it needs to assist the feds in enforcing the federal gun control act. The worry is that state and local law enforcement may start arresting medical marijuana patients who purchase guns in order to set an example, and to appease the justice department now that its leader has taken a public stance against weed. For the near future Maryland residents will have to choose between purchasing or receiving a firearm and enrolling in the medical marijuana program. Even card holders who have yet to make their first purchase of medical pot should worry when buying a firearm, as the mere fact of their enrollment in the program could lead to major criminal liability. After all the progress we have made in last decade with respect to marijuana policy, the AG’s recent statements are a major step in the wrong direction. The only real solution is for Congress to get together and scrap federal laws making marijuana a controlled substance. We are confident this will happen eventually, but waiting on lawmakers to right a wrong is a frustrating proposition to say the least.

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IMG_7858-e1515083729598-225x300Multiple police departments in Maryland have posted messages on social media warning local residents to take proper care of their pets amidst the current run of frigid cold temperatures. Anne Arundel County Police sent the word out via Facebook post, which focused on dog owners who choose to leave their pup outside unattended in the cold weather. The police department provided specific guidelines during a severe weather animal emergency including maintaining a constant supply of non-frozen drinking water and using a dog house that is equipped to protect against the elements. The houses must have a usable door flap pointed away from prevailing winds, abundant dry bedding and be situated at least 2 inches above the ground (or any snowfall on top of the ground). Police also warned that houses or shelters that are too large to maintain a temperature above 33 degrees are unsafe for dogs, and any shelter may not be suitable if the “feels like” temperature drops below 20 degrees. During the last week and for the next few days a “feels like” temperature of 20 degrees may seem like summer, and thus no dogs should be left unattended outside for the foreseeable future. Those who fail to comply with the Anne Arundel County law during severe weather animal emergencies face civil fines up $1,000, confiscation of the animal and the potential for criminal charges for animal abuse or neglect.

Montgomery County issued a similar message, reminding residents that during weather emergencies pets must not be left outside unattended. The county police department gave a stern warning that leaving animals outside in these conditions may be considered an act of cruelty, and owners could be subject to criminal charges. The Montgomery County code provides a civil fine of up to $500,which police officers could charge in addition to the state statute regarding abuse or neglect of an animal. Under section 10-604 of the Maryland criminal code anyone who deprives an animal of necessary sustenance or inflicts unnecessary pain or suffering upon an animal could be found guilty of a misdemeanor and sentenced to up to 90 days in jail and a $1,000 fine. In addition, a conviction could result in the defendant being prohibited from owning pets in the future and being compelled to participate in psychological counseling at their own expense. If the police deem that the cruelty was intentional they may charge a defendant with aggravated animal cruelty under 10-606, which is a felony with a 3-year maximum prison sentence and a $5,000 fine. As with many criminal cases in Maryland, police officers will typically charge a suspect with the maximum relevant offense even if there is unconvincing evidence that it occurred.

Animal cruelty is a serious charge in Maryland and should be handled with extreme care to prevent penalties including a permanent criminal conviction and even jail time. An attorney could help obtain a dismissal or prevent criminal charges from being filed in the first place. In some cases police officers or animal control will confiscate the pet before making a determination whether to file charges. A lawyer can communicate with these agencies to try to work out an alternative resolution to the filing of criminal charges. Benjamin Herbst is an experienced Maryland animal abuse attorney who handles cases in all jurisdictions. Contact Benjamin today at 410–207-2598 for a free consultation.

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arguing-1296392_1280-300x212The holiday season is supposed to be a time for families to come together and enjoy each other’s company, but unfortunately it takes more than holiday cheer to keep relationships from going awry. Most couples, friends, family members and neighbors are able to get along with each other just fine and will never have to deal with the stress of the court system. For those that aren’t so lucky it is important to understand your rights and the avenues available in order to clear your name. In Maryland there are two types of legal proceedings where the courts will assist in keeping the peace between feuding individuals. The most common is called a protective order, which applies to family members, current and former spouses, partners who have been sexually active within the last year and parents who share a child. If a person wants the courts assistance with an individual who does not fit in one of these categories then a peace order must be filed. Former friends, co-workers or others in a business relationship, and neighbors who can’t get along are the most common parties to a peace order.   Peace orders can last up to 6 months or 1 year with good cause and protective orders up to 1 year or 2 with good cause.

Peace orders and Protective orders begin in the District Court where the petitioner asking for a no contact order or order to vacate a home fills out a sworn statement and submits it to the court commissioner. The petitioner will then appear before a judge at a temporary hearing to swear to the alleged facts under oath. Judges will typically grant temporary protective orders or peace orders because the standard is low and they only last about 7 days. The judge must only find reasonable grounds to believe the respondent (defendant) committed the acts alleged. If a judge grants a temporary protective order against you it is important to remain calm and seek legal advice. A temporary protective or peace order is not final and you still have a chance to defend yourself at an evidentiary hearing, and if you win the final hearing and the order is dismissed you will be able to shield the case from public view. The standard of proof at a final hearing is called preponderance of the evidence, which means the petitioner must convince the judge more likely than not that the allegations occurred.

Preponderance of the evidence is the same standard used in violation of probation hearings, and while it is not as high as proof beyond a reasonable doubt used in criminal trials, it still requires that the petitioner convince the judge. If there is no objective evidence, unbiased witnesses such as a police officers, and the respondent denies the allegation then the judge should dismiss the order. One party’s word against the other’s with nothing more should not be enough to satisfy the burden of proof, but judges have the final say. It is always important to prepare an effective cross examination of the accuser and contacting a lawyer is one way to make sure this happens. Bringing evidence such as pictures or text messages may be another effective way to challenge the petitioner’s accusations.