Maryland Legislature

Published on: October 11, 2023

Boating Under the Influence Laws Enhanced

Most of the criminal justice bills that are either signed into law by the Governor or otherwise pass the General Assembly become law on October 1 each year. The exceptions are major policy changes such as the legalization of marijuana, which typically are planned farther in advance. Marijuana legalization stole all the headlines on July 1, but there were still a fair number of laws that went into effect last week. One such law was a provision of the Natural Resources article, which adds enhanced punishments for boating under the influence (BUI) and in some cases for driving under the influence or driving while impaired. The new law focuses on repeat offenders, but not in the traditional sense, as it aims to enhance the punishment for boating offenders with a record of drunk driving and driving offenders with a history of boating under the influence.

The State Boat Act already has provisions that punish repeat offenders; a first offense for boating under the influence carries up to 1 year in jail, while a second offense carries up to 2 years. A third or subsequent conviction for BUI carries up 3 years in prison. Boating while impaired, which is a lesser offense than boating under the influence carries a 60-day maximum sentence for a first conviction, and a 1-year maximum for a second or subsequent. These penalties are similar to the drunk driving laws in transportation article 21-902. The new Natural Resources Law will now count a defendant’s DUI or DWI convictions as prior offenses in impaired boating cases. This means that a person with a prior drunk driving conviction could face up to 2 years in prison for a first boating under the influence charge. The new law also allows the State to consider prior boating convictions under the State Boat Law when recommending a sentence for a DUI or DWI case. Subsequent offender enhanced penalties for boating under the influence only apply if a defendant was convicted of the prior offense within the last 5 years, and probation before judgment (PBJ) does not count as a conviction. Also, in order for the enhanced penalties to apply the State must provide notice to the defendant at least 30 days prior to trial of its intent to seek subsequent offender enhancements.

Natural resources offenses such as boating under the influence can lead to serious consequences including a permanent criminal conviction, jail time and the loss of one’s privilege to operate a vessel in Maryland. Many boating offenses have extremely harsh consequences compared to similar traffic violations. For example, a second offense for speeding on a state waterway can carry up to 30 days in jail. Boating offenses involving alcohol or drugs are taken extremely seriously by the State and by judges, which makes it all the more important to retain an experienced lawyer before you go to court. If you have been charged with BUI or any violation of the State Boat Act contact Maryland criminal defense lawyer Benjamin Herbst anytime at 410-207-2598. Benjamin has successfully defended over 500 DUI, BUI and DWI charges and has the experience and dedication to fight for the best outcome in your case. Benjamin has locations in Anne Arundel County and Baltimore City, and accepts cases in all jurisdictions in Maryland. He has won DUI trials in Worcester County, which has the highest conviction rate in the state, as well as numerous other counties and is standing by to fight for you. Benjamin is also an experienced federal DUI lawyer for those who have received citations on 295, Fort Meade and the various other parkways and military/federal installations in Maryland. He represents adults and juveniles in all drug and alcohol violations including open container and public consumption citations, and also specializes in representing out of state defendants who are traveling through Maryland when stopped.

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Published on: April 12, 2023

Multiple Gun Bills Approved by General Assembly

By Benjamin Herbst

The House and Senate approved Senate Bill 1 and House Bill 824, and both will almost certainly become law on October 1, 2023. House Bill 824 did not receive much fanfare, but will further tighten Maryland’s already strict gun laws. The Bill, which was introduced by a Delegate who also serves as an Assistant State’s Attorney in Anne Arundel County, expands prohibitions on regulated firearm possession under the Public Safety Code. Starting in the Fall anyone who is one supervised probation for an offense that carries a maximum penalty of 1 year or more in jail will not be able to possess a firearm. The new prohibition also includes those on probation for DUI or DWI under the §21-902 (a) and (b) of the Transportation Article. Defendants on probation for violating a protective order would also be prohibited from possessing a regulated firearm. This provision only applies to individuals who are placed on supervised probation after being convicted, which means that those granted probation before judgment would not be subject to a charge under the Public Safety Code for possessing a firearm while on probation. It is important to remember that those on supervised probation are typically prohibited from possessing firearms unless a judge specifically allows it. This is standard condition of probation in Maryland, though a violation would be considered a technical probation violation and not a new offense. Technical violations of probation carry a presumptive maximum penalty of 15 days in jail, while a violation of this new provision in the Public Safety Code would be a misdemeanor with a 5-year maximum penalty.

House Bill 824 also prohibits a person from obtaining a Maryland wear and carry license if he or she has been convicted of a violation of criminal law section 4-104, which prohibits storing or leaving a loaded firearm in a place where an unsupervised minor could gain access to the firearm, and an injury or death resulted. If there was no injury the prohibition would only extend to a person convicted of a second or subsequent violation of this provision. Offenders who receive a conviction for child’s access to firearms after October 1, 2023 will have to wait five years from the date of the conviction to apply for a handgun permit. The bill also raised the permit fee to $125, up from $75.

Senate Bill 1 received most of the media attention, and will likely continue to create news headlines after it becomes law in October. We wrote about this bill previously, and the version that passed the General Assembly was not substantially altered from our last post. This law will have major restrictions on where licensed individuals can possess firearms, including prohibiting possession at schools, concerts, sporting events, organized youth and adult sports leagues and state government buildings. A violation under this new law would result in a misdemeanor that carries up to 90 days in jail for a first offense, and up to 15 months for each violation thereafter. Firearm possession is already illegal in federal facilities and buildings in Maryland under federal law regardless if a person holds a Maryland concealed carry permit.

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Published on: March 21, 2023

Bill Limiting Searches Based on Marijuana Odor Advances

By Benjamin Herbst

The legalization of marijuana in Maryland will have a much broader reach than simply eliminating the prosecution of marijuana possession cases. Perhaps the largest collateral consequence of legalization is the effect it will have on law enforcement’s ability to search a vehicle. Even after marijuana possession was decriminalized police officers in Maryland maintained the ability to search a car based on the odor of marijuana. Police lost the ability to search a person and his or her belongings, but vehicles have been fair game. In fact, a police officer can technically initiate a traffic stop based on the odor of marijuana, without even observing a traffic violation.

A massive number of criminal cases start with the search of a suspect’s vehicle. Traffic stops are some of the only up-close encounters citizens ever have with police, and thus law enforcement agencies train their officers to take full advantage of these encounters. Police are trained to identify individuals who are likely to be engaged in criminal activity, and then to continue to develop them as suspects. Officers are permitted to initiate a traffic stop even if their ultimate goal is to obtain probable cause to search a vehicle. Pretextual stops, where officers wait for a vehicle to commit a minor traffic infraction with the larger goal of investigating a more serious offense, have always survived constitutional challenges. At the present time one of the most common ways to bridge pretextual and ordinary traffic stops to a probable cause search is the smell of marijuana. These stops account for a great deal of arrests for gun and drug possession cases, but the legalization of marijuana looks to throw a wrench in this common law enforcement tactic.

When marijuana becomes legal in Maryland on July 1, 2023 it will no longer be considered contraband and thus cannot be used to justify a criminal detention and search. This is something that law enforcement agencies and prosecutors have been planning for, but there is currently no policy in place that actually states a police officer will not be able to perform a search after smelling burnt or raw cannabis. It would have been a major waste of resources to simply do nothing and wait for a defendant to challenge a search in court. This path would have forced the Supreme Court of Maryland to establish the policy, but clearly having the legislature enact a law would be the preferred option. House Bill 1071 does just that, and after passing easily (99-34) in the House is headed for a vote in the Senate.

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Published on: March 15, 2023

Controversial Gun Bill Passes Senate

By Benjamin Herbst

Senate Bill 1 sparked heated debate when it was first introduced at the beginning of the 2023 Maryland Legislative Session. The debate was heated for good reason, as the bill originally proposed massive restrictions on where a licensed individual could possess a firearm. We were skeptical from the outset about some of the bill’s language, which included banning all otherwise legally owned and possessed firearms within 100 feet of a place of public accommodation. The phrase public accommodation included basically all public indoor spaces such as restaurants, stores and shopping centers, and even included outdoor spaces where people gather to eat, shop or be entertained. Possession of a lawfully owned firearm would have also been prohibited at hotels and inns under the original proposal. The overly broad language in the first proposal would have never stood a chance at surviving constitutional challenges, and enforcement would have been a nightmare even if it did temporarily become law. As such, the Senate Judicial Proceedings Committee did its job and drastically modified the bill in order to give it a shot of passing Constitutional scrutiny, and as of this week the bill has officially been approved in the Senate.

The revised version of Senate Bill 1 has several new restrictions that take the place of the original public accommodation language in the first draft of the bill. If the current SB 1 becomes law, holders of a Maryland wear and carry permit would be prohibited from carrying in an area for children or vulnerable individuals. This section would apply to daycares and public or private secondary schools, youth camps, health care facilities and shelters for runaway youth. The proposal would also prohibit firearm possession in Government or Public Infrastructure areas, which include buildings owned or leased by the state or local government, college or university buildings, polling sites and electrical plants or storage facilities. Additionally, the bill prohibits firearms at organized sporting or athletic activities between three or more individuals competing in the same league. One of the broadest prohibitions would concern Special Purpose Areas, which include locations licensed to sell or dispense alcohol or cannabis for on-site consumption, and thus guns at bars would be outlawed. Special purpose also includes stadiums, museums, live theater performances and concerts where the audience is required to pay or possess an admission ticket, fairs, carnivals, racetracks and video lottery facilities.

Law enforcement officers, active-duty military, correctional officers and even ROTC members are mostly excluded from these prohibitions, and not subject to the potential penalties that would include up to 90 days in jail and a $3,000 fine for a first offense and up to 15 months in prison and a $7,500 fine for subsequent violations. Anyone who violates this law with the intent to injure another person faces the same 15-month penalty in addition to any other criminal violation found to have occurred. There is also a provision in the bill that prohibits an individual from trespassing on another person’s property with a firearm after being warned that firearms are not allowed on the property. Such a violation could bring misdemeanor charges that carry up to 90 days in jail and a $500 fine.

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Published on: February 16, 2023

Recreational Cannabis Bills Introduced

By Benjamin Herbst

Marijuana will be legalized for adult recreational use this summer, but until recently there was no indication when it would actually be available to purchase. Those following marijuana policy closely in Maryland are well aware that the first medical marijuana sales occurred almost five years after medical cannabis was signed into law by the governor. The delay was extremely frustrating for patients, lawmakers, government officials and investors, and not something anyone wanted to repeat. Considering much of the infrastructure already exists for selling cannabis, the delay for recreational sales to begin was never expected to approach five years. But would it take 1 or 2 years? Would there be a lengthy limbo period like in New York City or Washington D.C., where pot is legal but difficult or impossible to purchase lawfully? The referendum for legalization in Maryland easily passed in November of 2022, but it did not provide any clarity as to when recreational sales would actually begin. During the last couple of weeks though lawmakers in Annapolis have worked hard to instill confidence that on or about July 1 recreational marijuana will be available to adults over the age of 21.

Senate Bill 516 was recently introduced in the form of an 88-page behemoth that lays out a comprehensive plan for the state’s recreational cannabis plan. The companion bill, House Bill 556 is also 88 pages and is set for a hearing on February 17. Both bills aim to have recreational cannabis up and running this summer, and both would authorize at least 500 dispensary licenses as well as 50 on-site consumption licenses. If the bill becomes law there will soon be numerous establishments where any adult over the age of 21 could purchase and smoke marijuana in the state of Maryland. The bills also distinguish standard grower, processor and dispensary licenses from micro-licenses, which have smaller space limitations.

The bills also preserve the medical cannabis program by authorizing those under the age of 21 and over to purchase and possess up to 120 grams of cannabis or 36 grams of THC infused products. School personnel would be permitted to administer medical cannabis to a student as long as it is obtained from, and administered per a certified caregiver’s instructions. Students may be administered medical cannabis at school activities and on school busses. Medical cannabis would not subject to the same sales tax as recreational cannabis, which would start out at 6 percent and rise to 10 percent. Other provisions include prohibiting local governments from assessing their own taxes and from establishing zoning requirements that unduly burden cannabis licensees.

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Published on: February 8, 2023

New Gun Bill Sparks Heated Debate

By Benjamin Herbst

Nearly eight months ago the Supreme Court ruled that the carrying a handgun in public is a constitutional right protected by the Second Amendment. In fashioning this ruling, the court declared that state and local governments shall issue concealed carry permits to qualified individuals who can satisfy objective requirements such as background checks and completion of gun safety courses. The flip side is that the court did away with laws that gave state and local governments the ability to arbitrarily decide who may receive a concealed carry permit. These “may issue” laws required a person to prove to the government that they were worthy of a permit, and denials were routinely handed out without further explanation.

Maryland was once a “may issue” state that required residents to prove a good and substantial reason to carry a gun, but since June the State Police has been ordered to issue permits to all qualified applicants. Since the ruling there have been upwards of 80,000 concealed carry applications compared to 12,000 in all of 2021. The spike in applications has been a major source of concern for some lawmakers in Annapolis who are now attempting to chip away at the Supreme Court’s ruling. Citing the exponential rise in gun violence and a suspected connection between an increase in legal gun purchasing with an increase in illegal guns on the street, so called public safety advocates have sponsored a bill that would restrict where a licensed individual can carry a firearm. Senate Bill 1, which was debated this week, would criminalize the possession of a firearm within 100 feet of a place of public accommodation. This new misdemeanor offense would carry a maximum penalty of 1 year in jail, and apply to all citizens regardless of permit status. The new law would be codified under 4-111 and 4-112 of the criminal law article, rather than the Maryland public safety code where many gun laws are listed.

The obvious question is how the legislature will attempt to define “place of public accommodation”, as the law rests entirely on this arbitrary definition. As of now the definition of public accommodation includes inns, hotels, motels, restaurants, bars, movie theaters, sports arenas, concert halls and all other entertainment venues. It would also include all retail establishments that offer goods, services, entertainment, recreation or transportation. Basically, the bills authors tried to include all public indoor spaces and outdoor spaces where people gather to eat, shop or be entertained. Anyone with time to kill could probably think of a place that the authors missed, but the definition seems comprehensive. It might be more productive to think of the places that were left out, as the main ones appear to be parks and anywhere a person is in transit such as driving on a highway or walking down a sidewalk. On the other hand, the provision that you cannot be within 100 feet of one of these establishments will create a host of issues. You could hypothetically be breaking the law if you have your legal firearm in your vehicle while driving past a store, going to pick up food at and even walking down the sidewalk. For this reason, the law as written stands very little chance of hitting the governor’s desk. Regardless, gun rights advocates showed up in force in Annapolis this week to protest, and the protests will only grow stronger if the law progresses.

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Published on: February 1, 2023

Numerous Criminal Law Bills Introduced in Annapolis

By Benjamin Herbst

The 2023 Maryland legislative session is underway, and there are currently dozens of criminal law bills that are being debated in Annapolis. Guns, marijuana and juvenile justice reform are three of the main issues this year, but there are numerous other proposals that could significantly alter the way crimes are policed and prosecuted. One of the issues at the forefront of media coverage is increasing the penalty for Maryland’s main gun possession law. Wearing, transporting or carrying a handgun currently has a maximum penalty of three years incarceration and a $2,500 fine upon conviction. This offense also carries a 30-day mandatory jail sentence that becomes 90 days if the offense occurred on public school property. The mandatory jail term is rarely imposed though, as it is not normal practice for the State to file a notice to seek mandatory incarceration in these cases. Additionally, a judge may grant probation before judgment, which effectively erases any requirement to impose mandatory jail. For comparison, probation before judgment is not available to anyone found guilty of possession of a firearm by a prohibited person or by a convicted felon, so the mandatory time is actually mandatory. Some lawmakers and the Baltimore City State’s Attorney are lobbying to increase the maximum penalty for possession of a handgun to 5 years of incarceration, which would mirror the maximum penalty for possession of a firearm by a minor under the public safety article.

There does not seem to be an overly persuasive argument to increase the penalty for wear, transport or carry of a handgun to 5 years. Anyone with more than a minor criminal record who is found with a gun will likely be charged with possession by a prohibited person and thus face a mandatory 5-year sentence. Additionally, anyone who uses a handgun in a crime will face a significantly harsher punishment for other offenses such as use of a handgun in a crime of violence. Those with minor or no criminal record will not and should not serve anywhere near the current maximum of 3 years. If uniformity is the ultimate goal, lawmakers should look to decrease the penalty for minor in possession of a firearm to 3 years rather than seek to add more time, which ultimately is only used as leverage in plea bargaining. In reality it’s much easier for a lawmakers in this current climate to say they fought for tougher guns laws, even if said laws have literally no effect on crime deterrence and public safety.

Lawmakers are also seeking to change laws related to certain sex crimes, with one proposal expanding the definition of a 4^th degree sexual offense for persons in a position of authority. Under Maryland law it is considered a sex offense in the 4^thdegree if a school employee such as a teacher, coach or administrator to have a sexual relationship or have sexual contact with a minor who is a student at the same school. This is a strict liability offense that applies specifically to students who are 16 or 17, and thus past the age of consent in Maryland. If the bill passes it would also subject volunteers, interns or basically any adult in a supervisory role with an institution, program or activity to criminal prosecution for having sexual contact with a minor who is a participant of the institution, program or activity. Under Maryland law, 4^th degree sexual offense carries a maximum jail sentence of 1 year, but could potentially lead to mandatory registration as a tier 1 sex offender for 15 years.

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Published on: January 4, 2023

New Marijuana Laws Effective in Maryland

By Benjamin Herbst

As of midnight on January 1, possession of more than 10 grams of marijuana is no longer a crime in Maryland, and more changes to the state’s pot laws are in store for the rest of 2023. Back in 2014 when Marijuana possession was first decriminalized there was much debate of the threshold amount. Some lawmakers argued for an ounce or more, while others fought for lower limits as a compromise for any decriminalization in the first place. As compromises typically go, many lawmakers left Annapolis wishing the decriminalization limit was different, but satisfied they got somewhere. There was never any real logic to the arbitrary limit of 10 grams, and despite repeated efforts to change the number, it stuck for more than 6 years. The 10-gram limit was always a placeholder, as recreational marijuana was a foregone conclusion. It seemed as if lawmakers put off raising the 10-gram limit because they knew its days were numbered by the implementation of a much larger policy change. Well, now that change is upon us, and it will soon be perfectly legal for an adult over the age of 21 to walk around with a bag of pot. But until that day arrives on July 1 when the trees are in full bloom and the sun is hot, adults without medical cards will still have to think twice about transporting their stash.

Marijuana possession for adults over the age of 21 was virtually erased from the books as a criminal offense in Maryland when the ball dropped this past Saturday. We say virtually because possession of more than 2.5 ounces is still a misdemeanor offense punishable by up to 6 months in jail. On the other hand, most people caught with more than 2.5 ounces will likely be charged with possession with intent to distribute or PWID as commonly called in the courts. PWID marijuana now a misdemeanor punishable by up to 3 years in prison and a $5,000 fine. Maryland law 5-602(b) states that “possession of the civil use amount of cannabis or the personal use amount of cannabis without other evidence of an intent to distribute or dispense does not constitute a violation [of the possession with intent to distribute law]”. This is part of the reason why the legislature decided on the 2.5-ounce threshold, and why the 10-gram threshold was mostly illogical. While there are some exceptions, lawful marijuana users typically to do not carry around more than 2.5 ounces of marijuana, an amount roughly the most a typical sandwich bag can hold. Lawmakers finally agreed to not subject marijuana users to criminal punishment, which was certainly not the case with the 10-gram limit. Recreational pot smokers routinely carry more than 10 grams of marijuana, as it is commonly purchased in half ounces or ounces (13 and 26 grams respectively). We applaud the legislature for raising the possession limits, though it still came a few years too late for some. Fortunately, there is now hope for all of those individuals charged and convicted with past possession of marijuana offenses in state court.

Another component of the new law that went into effect on January 1 is a provision entitling anyone with a marijuana possession conviction to have that conviction expunged. In addition, all marijuana possession convictions must be removed from public record by 2024. Gone are the days when a pot conviction will cost someone a job or admission into a school or program. The specific components of the temporary possession law state that a person who possesses up to 1.5 ounces of marijuana could face a civil fine of up to $100. Anyone caught with more than 1.5 ounces but less than 2.5 ounces faces a $200 civil fine, and as mentioned before, possession over 2.5 ounces is a crime punishable by up to 6 months in jail and a $1,000 fine. It is still a crime for young adults and juveniles to possess marijuana in Maryland, so if your child has been charged it is important to fight the case and to contact a lawyer.

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Published on: November 10, 2022

Maryland Voters Approve Marijuana Legalization

By Benjamin Herbst

Ten years ago marijuana first became legal in parts of the United States after voters in Washington and Colorado approved recreational cannabis. Over the last decade an additional 17 states and the District of Columbia all followed suit and voted to legalize marijuana use for adults. Maryland lawmakers have been tracking these trends for years, but had been remained hesitant to make any drastic changes to cannabis policy. Rather, lawmakers have steadily been taking small bites at the apple including lowering the maximum punishment for marijuana possession, creating a medical marijuana program, and then eventually decriminalizing possession of small amounts of cannabis. This past year lawmakers in Annapolis finally proved ready to take the big plunge, though they decided to leave it up to the voters to legalize pot once and for all. Passage of the ballot measure was never really in doubt, as previous polls had revealed approximately 60 percent of Maryland voters favored marijuana legalization. A 60/40 split may not seem like a large margin, but in the election world it’s actually fairly wide. The margin however turned out to be even wider in the real vote, as the measure passed with a 65.6 percent approval. Close to 1 million voters said yes to the question of whether citizens 21 and older should be able legally use cannabis Maryland, while just over 500,000 voted no. This signaled a borderline landslide victory for the good guys.

Now that the ballot measure passed there are a few important things to remember, as it is definitely not legal so spark up a joint on the street or fire up the basement hydroponic grow room just yet. First off, cannabis will not be legalized for recreational use until July 1 of 2023. Starting July 1, 2023 possession of up to 1.5 ounces of pot will be fully legal for adults over the age of 21 while possession of 1.5 to 2.5 ounces will constitute a civil infraction. Possession of over 2.5 ounces will be a misdemeanor punishable by 6 months in jail. On January 1, 2023 possession of up to 1.5 ounces will be decriminalized though still illegal (much like possession under 10 grams is currently). On July 1, adults will be able to grow up to two cannabis plants on their property as long as the plants are away from public view and protected from access by minors. Unlawful distribution of marijuana and possession with intent to distribute will no longer be a felony starting on July 1, but will still retain a harsh sentence of up to 3 years in jail. Mandatory expungements for past pot offenses that are no longer crimes will begin next year as well, but there is not definite timetable when recreational sales will begin. Finally, smoking in public will remain illegal, and will be punishable by a civil fine of up to $250. It is unclear whether municipalities such as Ocean City may try to enact harsher punishments as they do with open containers of alcohol.

The Blog will continue to follow Maryland marijuana policy with a close eye, and will also monitor other states and potential federal policy changes. On election day five other states provided voters with the ability to determine whether recreational cannabis would be legal, though only Maryland and Missouri voters approved the measures. Voters in Arkansas, North Dakota and South Dakota all declined to legalize marijuana. South Dakota voters had previously passed legalization in 2020, but the vote was declared invalid by the state’s highest court. If you have a question about the new marijuana laws or a past CDS case feel free to call Maryland drug crime lawyer Benjamin Herbst anytime at 410-207-2598. Benjamin specializes in manufacturing, possession with intent to distribute and drug trafficking charges such as large amount and importation. He also has extensive experience representing those charged with conspiracy and participation in a criminal gangs. Contact Benjamin to find out which defenses may be available in your state or federal drug case anytime, 7 days a week.

Published on: October 19, 2022

Juveniles Entitled to Lawyer Before Interrogation

By Benjamin Herbst

On October 1 a host of new laws took effect in Maryland, though most of these laws do not modify existing criminal laws or procedure. There are however two laws that will impact on our state’s criminal justice system. The first new law prohibits a spouse from invoking the marital privilege in a domestic violence case such as second-degree assault if the marriage took place after the alleged incident. While there may have been a few cases showing up from time to time where a defendant and a victim married in advance of a criminal case, this new law will not likely impact a large number of cases. A victim who is willing to marry for the sole purpose of invoking the privilege is likely to not be cooperative with the state, and with good representation those cases will typically resolve favorably to the defendant.

There is one new law however that will certainly have a major impact on the criminal justice system. This law was met with a great deal of resistance and even survived a veto by the Governor. The law is titled the Youth Interrogation Act, and as of this month effectively prohibits Maryland police officers from interrogating juvenile suspects until the child has consulted with an attorney and the police have made reasonable efforts to contact the parents of the juvenile. The attorney can be retained by the parents of the detained juvenile or provided by the state, and the consultation must be confidential and conducted in accordance with the Maryland Rules of Professional Conduct. This requirement cannot be waived by the parents but it appears that a properly advised juvenile can still elect to speak without the presence of a lawyer. In order for a statement to be deemed admissible the State must prove by clear and convincing evidence that it was made knowingly, intelligently and voluntarily because there is a rebuttable presumption that the statements are inadmissible. For the purposes of this law, it does not matter whether the detained minor is being charged as an adult or a juvenile, which means all detained minors under the age of 18 may not be interrogated without first being provided the opportunity to speak with a lawyer. The interrogations must be recorded as long as it is practicable, and the juvenile must be informed of the recording.

There is one major exception to this law, which was included after the bill was met with a great deal of resistance from police and State’s Attorney lobbyists. Law enforcement may conduct an interrogation of a detained juvenile without the presence of counsel if the law enforcement officer reasonably believes that the information sought is necessary to protect against a threat to public safety, and the questions posed to the child by law enforcement are limited to those questions reasonably necessary to obtain the information necessary to protect against the threat of public safety. Obviously, any questioning elicited without the presence of a lawyer would come under intense scrutiny from the defense, and any inculpatory statements would likely be suppressed if the police deviated from the permissible line of questioning.

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