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The 2021 H2O1 pop-up car rally is officially underway, and law enforcement is preparing to keep this unofficial event as safe as possible.  Despite a supposed move to New Jersey a few years back, the event still calls Ocean City home, and thousands will flock to Maryland’s Eastern Shore this week.  The event has a decade of history in Worcester County, and despite lawmakers and the city police department’s best efforts, it does not appear to being going away any time soon.  Lawmakers can’t simply ban the event because it is not an officially sanctioned event in the first place.  There are no licenses issued by the town, and there is no promoter or company that actually runs the event.  Short of closing down the town for the week or imposing some sort of over-intrusive curfew (which would never happen and would be unconstitutional) the town will once again be forced to make the event as safe as possible for participants and spectators alike.

In 2020 the number of arrests during the rally actually decreased from 121 the year before to an even 100.  On the other hand, the amount of traffic citations issued during the event rose to nearly 3.5 thousand.  Additionally, 350 cars were towed for various infractions including camber violations that make the cars illegal for street use.  Many visitors to Ocean City have noticed signage on Coastal Highway that displays the Special Event Zone message, and this law was actually created back in 2018 in response to the Ocean City Pop-up rally.  The town wanted to give police more authority to enforce the traffic laws, and believed that simply writing citations would not do the trick.  Lawmakers succumbed to the pressure and created the Special Event Zone to give police authority to arrest drivers for so called “exhibition driving”.

According section 21-1132 of the Transportation Article under Maryland law, exhibition driving is defined as operating a vehicle in a manner that results in excessive or abrupt acceleration or deceleration, skidding, burning or smoking of the tires, swerving or swaying, or revving the engine in an unreasonably loud or disturbing manner.  Grinding of the gears and causing the wheels to lose contact with the ground is also included in the statute.  Exhibition driving while in Special Event Zone is now punishable by up to 60 days in jail, and a fine of $1,000, and police officers will arrest a defendant for this type of driving.  We have seen numerous cases where defendants are arrested for exhibition driving even if their actions did not place anyone in danger.  To make matters worse, some out of state defendants are not released by the commissioner, and could held overnight in jail until seeing a judge the next day.  Not only will police arrest an individual for exhibition driving, the State’s Attorney’s Office will almost certainly prosecute these cases.  In addition to exhibition driving being an arrestable offense, the fine for speeding in a special offense zone increases to $1,000.  With the speed limit on coastal highway decreasing to 30 mph during the events, police are almost running out of paper to issue the tickets.

A veteran officer of the Anne Arundel County Police Department was arrested last week in Howard County on multiple charges including assault second degree, resisting arrest and disorderly conduct.  The 35-year-old corporal from Pasadena has been with the department for 8 years, and was suspended with pay following the arrest.  He currently is scheduled for trial in Ellicott City on July 13, though the case may be postponed or moved to the circuit court before it is resolved.  All of the charges are classified as misdemeanors, but the defendant can elect to have a jury trial if he and his attorney prefer the case to be handled in circuit court.

According to the statement of charges, Howard County Police officers responded to a bar on Washington Blvd. in Elkridge shortly before 2 a.m. after a fight broke out.  As officers dispersed the crowd one person remained on the scene and was showing signs of intoxication.  This intoxicated individual turned out to be an off-duty police officer, and was placed under arrest after failing to comply with the Howard County cops and then allegedly kicking one of them.  The off-duty Anne Arundel officer was taken to central booking in Jessup and released on his own recognizance by the commissioner the same morning.  Assault in the second degree is the most serious charge that the suspended officer is facing, and under Maryland law it carries a maximum penalty of up to 10 years in jail.  A person convicted of second-degree assault in Maryland is also prohibited from owning or possessing a firearm according to the public safety code.  The public safety code in Maryland classifies assault in the second degree as a crime of violence, which can be confusing, as it is not considered a crime of violence under criminal law §14-101 for purposes of parole eligibility.

In Maryland, a defendant who has a conviction for second-degree assault faces a 5-year mandatory sentence if he or she is arrested for illegal possession of a firearm.  Even if the defendant who received probation before judgment faces this mandatory prison sentence if the case was marked domestically related.  In the case of the off-duty Anne Arundel cop, the case is not domestically related and thus he will not lose his ability to own or possess a firearm if probation before judgment is granted (after probation has been completed).  In all likelihood the suspended officer’s lawyer should be able to convince the State to dismiss or nolle pros. the assault charge in favor of one of the lesser charges.  The most likely outcome in this case would probably look something like a plea to the disorderly conduct or a STET with the condition that the defendant complete some sort of alcohol treatment.  The officer is likely a first-time offender and will certainly face discipline for his actions from his employer, which is something the prosecution and judge should consider.  On the other hand, the judge and State may point out that a police officer should be held to a higher standard even when off-duty.  It will be interesting to see how this case plays out, and the Blog will post a follow up article upon resolution of the matter.

The Town of Ocean City, Maryland’s only incorporated beach town, is considering strict noise ordinances that would potentially criminalize loud behavior on the popular boardwalk.  The regionally famous boardwalk is home to dozens of businesses including restaurants and hotels, and many have expressed frustration over the unpoliced noise.  The same boisterous activity that attracts the crowds to the southern end of town may also be pushing tourists from actually doing business on the boardwalk.  Families and other visitors still love coming to visit the boardwalk, but many are inclined to sleep or have a sit-down meal elsewhere due to the noise and commotion.

Last summer the town retained noise consultants to establish baseline decibel levels for certain parts of the boardwalk, and then worked from there to propose potential limits.  These limits would be based on the specific location and time of day, with enforcement being conducted in a standardized method.  The city has already established that daytime activities run from 7 a.m. to 10 p.m. on weekdays and 7 a.m. to midnight on weekends.  If the ordinance becomes effective this summer there would likely be an influx to town police officers hitting the boardwalk with handheld decibel meters when the clock strikes 12.  Anyone convicted of the new noise violations would likely face up to 90 days in jail and a $500 fine if the ordinance classifies the offense as a misdemeanor.  Ocean City already has some of the strictest local ordinances in the state, and various acts that would otherwise be punishable as a civil infraction are criminalized in in OCMD.

Alcohol violations are typically charged as civil infractions under Maryland law, and violators are ticketed and told to appear in court.  Their cases are classified as CZs rather than CRs and are not punishable by the possibility of incarceration.  On the other hand, in Ocean City these same violations carry the potential for up to 90 days in the Worcester County jail.  Thankfully, three months in the county lockup is an unrealistic punishment for walking down Coastal Highway with a White Claw, but the bigger issue is that any offense punishable by jail time gives the police the authority to arrest.  Not only does an arrest trigger irreversible consequences such as a permanent FBI record, but it also allows the police to search a person and his or her belongings.  Search incident to arrest is a powerful evidence gathering tool for police, and often the secondary offenses based on items recovered in searches are greater than the initial reason for the arrest.

The Maryland governor recently announced that state casinos will no longer be prohibited from operating at full capacity under state law, but some local restrictions are still in place and revenues remain lower at all gaming establishments.  State orders had previously limited capacity to 50 percent at each of the six casinos around the state, a number that had been in place since December.  The state’s largest casino, MGM National Harbor in Prince George’s County, and the Horseshoe in Baltimore City are still operating at limited capacity per local government orders.  These two casinos had been operating at 25% percent capacity, and will continue with some restrictions for the foreseeable future.  In total, the state’s casinos produced over $120 million in gross gaming revenue last month, but this number was down over 16% from February of 2020.

While profits are down across the state, the revenue numbers tell us a different story about social behavior in the COVID-19 era.  Despite capacity limits of 50% the gaming profits are down less than 17%.  This means the public have not proven hesitant to return to the casinos to spend their hard-earned dollars.  And since this is a criminal law blog, it also means criminal cases taking place on casino property are likely returning to pre-covid levels.  The most common cases that we have seen from the casinos are trespass and disorderly conduct citations.  Casino trespass cases usually begin one of two ways, with perhaps the most common cause being violations of the state’s voluntary exclusion program.  A person who has placed themselves on the VEP list for two years or for life will be prohibited from returning to the grounds of the casino (not just the casino floor) indefinitely until they follow the steps required to be taken off the list.  Voluntary exclusion violations will result in criminal trespass citation being issued that comes with a mandatory court appearance.  Upon conviction a defendant faces up to 60 days in jail, a $500 and the possibility of a permanent criminal record.  The large majority (if any) of these cases do not result in jail time, but the consequences can still be severe for a person with a clean record who may have a security clearance, professional license and/or immigration issues. Casino trespass cases are also quite common for those individuals that have received a no-trespass warning by a member of the casino staff.  Upon violation of these warnings and individual can be cited and removed from the property.  In addition, a person who is cited for casino trespass would forfeit all of their earnings, even if they have a strong argument that the warning was insufficient.

Disorderly conduct and other petit offenses are also relatively common at casinos due to the heightened emotions of gambling and perhaps the heavy flow of alcohol, but for the most part the facilities maintain a relatively safe environment.  The casinos are equipped with sophisticated security systems and even facial recognition technology, and security does not hesitate to use these systems to initiate charges against a person.  The Blog will continue to follow the revenue numbers and incidents of crime at casino facilities across the state, and will post a follow-up article in the future.  Legalized sports gambling is around the corner in Maryland, and this will undoubtedly pump up the revenue as well as the crowds in all the casinos.  More people equals the potential for more trespass, theft, assault, theft and disorderly conduct violations, and we will be there for anyone who needs assistance.

Covid-19 has devastated thousands of families around that world, with the health impacts being felt the hardest.  The collateral damage to the business world also is hitting home, as millions of people have lost their jobs or their ability to earn a consistent income.  The virus has also thoroughly disrupted the court system, and as a criminal law blog we will focus on these impacts.  First of all, jury trials are not scheduled to resume until the end of April, and the backlog of cases is in the hundreds for the larger jurisdictions such as Prince George’s County, Baltimore City, Baltimore County and Montgomery County.  All defendants are impacted by these continued postponements, but none more than those who are incarcerated and awaiting their day in court.  There are some defendants who have been waiting over 18 months for their case to go to trial, which severely weakens the principal of innocent until proven guilty.  While the Courts have been committed to entertaining multiple requests for bail reviews as the postponements mount, defendants who are charged with violent offenses, gun offenses or even large-scale drug cases are still being held without bail.  Our advice to any defendant in this situation is to continue to request bail reviews.  While the Courts will typically not consider a second or third bail review absent a change in circumstances, continuous postponements do present new circumstances that warrant reconsideration.  Additionally, if new discovery tends to show that evidence of guilt is not as strong as a police report or indictment makes it seem (this is the case far too often) then a new bail hearing may be appropriate.  If you have an attorney be sure to contact him or her to discuss filling a new bail motion, and if you need an attorney contact Benjamin at 410-207-2598.

Covid-19 has also affected the District Court dockets and caused lengthy postponements in all types of cases.  The Clerk’s office has been postponing a massive number of cases due to limited capacity in the courtrooms due to social distancing.  Dockets in some jurisdictions are being totally cancelled or cut in half, and some jurisdictions have not fully taken advantage of virtual options.  While the large majority of defendants in District Court are not incarcerated, having an open criminal case can have extreme negative effects on a person’s ability to live a normal life.  It may be difficult to obtain a new job, promotion, mortgage, lease or even acceptance to a school.  Open criminal cases may also impact a person’s ability to renew professional licenses, security clearances and immigration issues.  If you have a District Court case that has been postponed or does not have a court date, an attorney may be able to advance the trial date.  While advancing the trial date is especially difficult during this pandemic, there may be other options to move your case along quicker, such as filing a written jury trial request.  This option would transfer the case to one of the Circuit Courts, where it may be quicker to schedule a court trial or a plea hearing.  Circuit Court judges have a greater degree of control over their dockets, and are usually amenable to setting cases in early if it means disposing of them and thus decreasing the backlog.

Benjamin Herbst is a Maryland and Florida criminal defense lawyer who practices in Prince George’s County, Montgomery County, Baltimore County and all other Maryland jurisdictions.  He is also licensed to practice in Florida, and has extensive criminal trial experience in Palm Beach County, Miami-Dade, Broward County, Martin County and St. Lucie County.  If you have a gun, drug, DUI, theft or domestic violence charge anywhere in Florida or Maryland Contact Benjamin anytime at 410-207-2598 or 954-543-0305.

In 1989 a Florida man was sentenced to 90 years in prison after being found guilty of trafficking in cannabis, racketeering and conspiracy.  While the man had a prior marijuana related drug trafficking offense from a few years prior, the Florida sentencing guidelines called for him to serve between 12-17 years for his crime.  There was no violence alleged and there was no evidence that the defendant ever used or was found with a firearm or other weapon.  Nonetheless, the Polk County judge made the extraordinarily harsh and irrational decision to sentence the man to three consecutive 30-year sentences.  While RICO and conspiracy are typically reserved for federal criminal cases, this particular case was prosecuted in state court.  Much like the federal system, Florida abolished parole in the early 1980’s the 40-year old defendant was basically sentenced to life in prison for a non-violent marijuana charge.  The presiding judge apparently justified his decision to drastically depart upward of the sentencing guidelines by stating that the defendant was the ringleader of the conspiracy, and that he had allegedly bragged about his profitability in the marijuana smuggling business.  Fortunately, for the defendant, his family and for the sake of reason and compassion, the man was released this week at age 71.  It is widely believed that he had been serving the longest term of incarceration for any non-violent offense in the country.

While there is reason to celebrate the man’s release after serving three decades behind bars, the news is a solemn reminder of how unjust our criminal law policies are when it comes to drug offenses.  This is especially true for marijuana cases in Florida, where it is still a felony punishable by up to 5 years in prison to possess more than 20 grams of pot.  Possession of any amount of marijuana, including a trace amount or a burnt joint, is punishable by a potential jail sentence and the possibility of a permanent criminal conviction.  Each year more states choose to legalize marijuana for recreational use, and the House of U.S. Representatives passed a bill to decriminalize marijuana under federal law by removing it from the controlled substances list.  While the measure is likely to die in the Senate, the bill even received support from two Republican representatives from Florida.  Marijuana legalization is coming without a doubt, and it is still a shame that prosecutors and judges choose to pursue jail sentences for defendants whose pot cases have no violent or weapon allegations.  We recently posted about the Maryland legislature potentially debating the legalization of marijuana for recreational use in 2021, and Florida may go down the same path in a couple of years.  Once marijuana is decriminalized the states will likely develop a user-friendly procedure to expunge past cases, as the feds cannot be counted on to do the same.

Benjamin Herbst is a criminal lawyer who continues to fight for all defendants facing drug charges in the state and federal courts in Maryland and Florida.  He has extensive experience defending clients charged with manufacturing marijuana, drug trafficking, possession with intent to distribute and all other criminal offenses.  Benjamin also specializes in weapons and firearms cases, and has won numerous jury trials and motions to suppress evidence.  Call Benjamin anytime at 410-207-2598 or at 954-543-0305 in Florida for a free consultation about the defenses that may be available in your case.

A 26-year old Salisbury man is in custody after being arrested for burglary and motor vehicle theft last week.  The defendant was denied bail after seeing a district court judge, and will likely have to wait until his preliminary hearing in two weeks or his first appearance in the circuit court before having another opportunity to request a reasonable bail.  Wicomico County Sheriff’s Deputies were originally called to a local car dealership to investigate a burglary, but later learned that a vehicle had gone missing after reviewing surveillance footage of the dealership.  The man apparently entered the dealership through an unlocked door used by a cleaning service, and then appeared to drive several vehicles around and off the dealership lot.  The man then settled on a Ford pickup truck and left the premises.

The sheriff’s office put out a BOLO or be on the lookout for the stolen pickup, and deputies spotted it a short time later on North Salisbury Blvd. near Naylor Mill Road.  Police performed a traffic stop and took the man into custody whereupon they recovered keys to 32 other vehicles.  All stolen property appears to have been recovered by police.  The man was booked for burglary in the second degree, unlawful taking of a motor vehicle and theft from $1,500 to $25,000, which are all felonies charges.  While the district court has jurisdiction to handle the two theft charges, the burglary felony burglary charge must either be dismissed or forwarded to the circuit court by way of indictment or criminal information.

Under Maryland law, second-degree burglary is defined as breaking into a place of business with the intent to commit a theft, crime of violence or arson.  It has a maximum penalty of up to 15 years in prison or up to 20 years if the state can prove the defendant stole or attempted to steal a firearm.  While the statute prohibits breaking and entering of the business, a defendant does not actually have to break something in the literal sense in order to be charged.  Breaking can also mean crossing some sort of threshold like a fence (regardless of size) or an opened door.  Simply walking on to an open area of a business would without crossing any type of boundary would likely only be sufficient to support charges for fourth-degree burglary.  Burglary in the fourth degree is the only type of misdemeanor burglary in Maryland, and has a maximum penalty of 3 years in prison.  First and third-degree burglaries are both reserved for the breaking and entering of dwellings, and are generally treated more harshly in court than the other varieties.