Criminal Defense Lawyer Blog

Published on: March 1, 2019

What Prohibits Someone From Owning A Gun?

Over the last decade Maryland lawmakers have specifically targeted handguns by making them harder to purchase, sell and even manufacture. The legislature has made specific findings that are part of the criminal code that basically hold handguns responsible for the alarming increase in serious injuries and deaths that occur during the commission of violent crimes. As a result of these findings lawmakers have passed some of the toughest gun laws in the country. These laws can carry lengthy prison sentences, and in jurisdictions like Baltimore City they can cause defendants to be held pretrial without bail for months. This is true even for non-violent gun possession cases where there were no injuries and the gun was not brandished or used in a threatening manner. For some defendants simple gun possession is enough to cause a no bail hold and the real possibility of jail.

The gun laws in Maryland are strict and complicated, which makes understanding them extremely important. Simply possessing or transporting a handgun in an improper manner can result in a misdemeanor charge for wear, transport and carry. This offense has a 3-year maximum penalty and a 30-day mandatory jail sentence that must be imposed upon conviction unless the court grants probation before judgment. While it is not out of the question, most defendants that are only charged with misdemeanor gun possession will be able to either post bail or be released or their recognizance. With good representation these defendants could avoid serving any jail time. Misdemeanor possession is a pretty straightforward offense, as you cannot carry a gun in public or drive with a gun unless it is unloaded, in a case and separated from the ammunition. You also may only drive with a handgun if you are going to and from you house, the shop or the range.

The complex part of the Maryland gun law is figuring out who is actually disqualified from owning or possessing a firearm in any manner. While there are different laws that separate handguns from rifles and shotguns, a disqualified individual cannot possess any type of firearm. There are numerous reasons why a person can be disqualified from firearm possession, with the most obvious being a felony conviction. Many people think that a felony conviction is the only reason that they may be prohibited from possessing a gun, but in Maryland this is not the case. A person who is convicted of a disqualifying crime may not possess a firearm, and faces the possibility of a felony charge under Title 5 of the Public Safety Code. This law carries a 15-year maximum penalty with the possibility of a 5-year minimum, so avoiding this charge at all costs is key.

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Published on: February 22, 2019

Criminal Gambling Laws Overdue For Change

By Benjamin Herbst

As it became more likely that medical marijuana would soon be legal in Maryland, lawmakers simultaneously realized they needed to modify the criminal laws regarding marijuana possession. Amongst other reasons, it just didn’t make sense to subject a person to criminal prosecution and possible jail time for possessing a substance that was about to become legally available. We recently published an article about the possibility of sports gambling becoming legal as early as this year, and following the path of marijuana, lawmakers in Annapolis are already proposing to alter the criminal laws regarding gambling.

The Maryland gambling laws are strange to say the least, and it doesn’t seem like they have been given much attention over the years. Gambling is not a common crime because save for some large scale book making operations or home casinos the police seem to have better things to do with their time than bust March Madness pools and small time poker games. Plus most people including police officers, prosecutors and judges, have taken part in some form of social gambling in their lives. Still, it is not out of the question for an unlucky gambler to be made an example of just to remind the rest of us that until it’s legal it’s illegal.

The few unlucky defendants that are prosecuted under Maryland state gambling laws are usually surprised to learn that all forms of gambling are grouped under one law. Section 12-102 of the criminal code makes it illegal to bet, wager and gamble. This same section also makes it illegal for a person to sell a book (take bets), run sports pools and keep an underground business where gambling takes place. Logic would dictate that those who are running underground casinos and taking bets would face harsher penalties than the gamblers themselves (similar to drug use/possession vs. drug distribution) but this is not the case. All forms of gambling in Maryland are punishable by the same 1-year maximum penalty, and have a completely harsh and archaic 6-month mandatory jail sentence. Yes, you read that correctly- gambling convictions carry mandatory jail time, which is six times greater than the mandatory jail time for wear, transport or carry of a firearm under 4-203.

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Published on: February 14, 2019

Marijuana Still Looming Large In Annapolis

By Benjamin Herbst

Marijuana has been a major issue for state lawmakers in almost every recent legislative session, and this year is shaping up to be no different. Despite all the progress over the last five years in crafting state marijuana policy there are still numerous key issues that have yet to be settled. Without a doubt the headliner is the legalization of recreational use, but realistically 2019 does not appear to be the year where it’s going to happen. Legalization aside, there are still smaller points that need to be addressed, and many will be debated in Annapolis over the coming weeks.

One of the most common questions defendants ask is whether their probation can be violated for testing positive for marijuana. The simple answer is that a positive THC test can subject a defendant to a violation of probation, but what happens after a violation is submitted depends on a variety of factors. A standard condition of all Maryland probation sentences is that the defendant shall not illegally possess or use controlled substances, and marijuana is still a controlled substance in our state. A defendant who does not have a state medical cannabis license could easily be subject to violation of probation sanctions for a positive test, or even a civil possession citation. Obtaining a medical license could create a defense that the marijuana was possessed and used legally, but the idea for medical users is not to be violated in the first place. Licensed medical patients may be better off informing their probation officer ahead of time, rather than attempting to explain a positive test after the fact. The flip side is the argument that being a medical cannabis patient is protected health information that defendants should not be required to disclose. The reality is that probation officers and the courts have bigger things to worry about, and lawmakers have taken notice.

Rather than continue the back and forth over a substance that will likely become legal in 2020 one lawmaker has introduced a bill that would bar a positive marijuana test from being considered as violation of parole, probation and pre-trial release. There are exceptions to this rule such as when the judge specifically orders the defendant to abstain from the use of marijuana, but overall this law would clear up a great deal of confusion and alleviate an unnecessary burden on the courts. The same bill also proposes that the threshold for a criminal versus civil infraction for illegal possession of marijuana be increased from 10 grams to 1 ounce (28 grams). This proposal has been debated in other legislative sessions, and almost became law last year. Though it may not end up being a hugely impactful change, certain lawmakers have repeatedly questioned the arbitrary nature of a 10-gram limit. This bill also includes language creating a presumption that possession of less than an ounce does not support a felony charge for possession with intent to deliver, but the State could rebut this presumption with specific evidence of dealing.

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Published on: February 8, 2019

When Can A Case Be Expunged?

By Benjamin Herbst

Maryland offers an extremely just and reasonable expungement process for defendants who have been charged in criminal, serious traffic and civil citation cases. And, while the application process is fairly simple and now free, the hardest part can be figuring out if the case is eligible for expungement in the first place. There are some simple rules that we’ll start with, but keep in mind that even the simple rules have exceptions. Remember the one exception that trumps all the other exceptions is that a judge may grant a petition for expungement at anytime upon a showing of good cause, so hope is never lost if your case doesn’t qualify.

The most common scenarios when a defendant may be eligible for expungement are when their case results in a probation before judgment, nolle pross. dismissal, STET, acquittal or not guilty verdict. Criminal cases based on violations that are not longer illegal (possession of marijuana under 10 grams) are also eligible regardless of the outcome. The timing for when the case is eligible varies greatly. Dismissals, not guilty verdicts, nolle pross., acquittals and law change cases are immediately eligible for expungement unless the defendant is currently a defendant in another criminal proceeding. This is obviously a major exception, and there is really no logical reason for this exception other than to take a shot against those who are supposed to be presumed innocent. Former defendants with no current matters whose cases got dropped can file for expungement right away at the court where the case ended. A minor exception is defendants that receive a conditional nolle pross. (common in Montgomery County) must satisfy the conditions first.

Cases that end in a probation before judgment are eligible for expungement 3 years after any sentence or period of probation ends. The three years clock rarely starts from the last court appearance, so a little record searching may be in order in cases where a defendant serves a split sentence. A major exception is that DUI and DWI cases are not eligible to be expunged in Maryland when the defendant receives PBJ. This was not always the case, but the DUI lobby is strong and the laws continue to become stricter. Another major exception is that a defendant can lose the ability to expunge a PBJ if he or she is convicted of a crime within three years after receiving that PBJ. A new conviction can’t reopen a closed PBJ case but it can definitely make it permanent. Cases that end in a STET are eligible for expungement three years from when the STET began. If there are conditions such as drug and alcohol treatment they must be satisfied before an expungement can be granted.

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Published on: January 30, 2019

Baltimore City Prosecutor Ditching Pot Possession Cases

By Benjamin Herbst

Baltimore’s top prosecutor recently announced that her office will no longer prosecute marijuana possession in the city effective immediately, and additionally will vacate nearly 5,000 prior possession cases dating back to 2011. The announcement, which was posted on the Baltimore City State’s Attorney’s website has already generated national headlines. Both CNN and the New York Times have published articles about the announcement, and local news stations were on hand to televise a follow-up press conference. The 39-year old chief prosecutor stated that pursuing marijuana possession cases offers no public safety value, erodes public trust and diverts valuable police resources away from more important cases. Additionally she stated there is no association between marijuana possession and violent crime, and that these possession cases disproportionally targeted communities of color. The office will continue to prosecute distribution and possession with intent to distribute marijuana cases as long as there is additional articulable evidence of dealing. Each of these crimes is a felony under Maryland law, but first time offenders in Baltimore City will now be offered diversion and given the opportunity to have their cases dismissed and expunged.

While some members of the community lauded the prosecutor’s decision, other government officials didn’t just jump onboard with her plan. In the press conference the prosecutor called on the local law enforcement community to join in and focus their attention and resources on violent crime, but the city’s top cop didn’t bite. The interim police commissioner publicly voiced his disapproval of the State’s Attorney’s plan, and declared that his officers will not be directed to discontinue arresting or citing individuals for possessing marijuana in the city. The interim top cop, who will be replaced in the coming months by an out of state successor, said in no uncertain terms that his officers will continue to enforce state marijuana possession laws. He went on to say that the last thing the city needs is another illegal substance, and added that he and his colleagues absolutely see a link between violent crime and marijuana. The interim commissioner didn’t explain how the two are linked other than to say that his commanders see it all the time in Baltimore.

There is little doubt that police officers in Baltimore and throughout Maryland have deemphasized marijuana possession cases. Law enforcement still uses pot as a means to gain access to vehicles and justify searches of a person, but there are fewer possession cases showing up in court. The fact that the interim police commissioner came out so strong so soon against the City State’s Attorney seems more like a defense of the department’s autonomy. The commissioner in essence was stating that no lawyer could tell him and his officers which laws to enforce and which laws to ignore. Logically speaking, there is absolutely no reason why a city cop should charge someone with possession of marijuana if the case won’t be prosecuted. It would be hard to find a worse way to spend tax payer dollars and tie up police resources than to charge someone in a case that will undoubtedly be dismissed, but politicians will be politicians. And speaking of politicians, the Mayor came out with a statement that unsurprisingly supported both sides and avoided offending either. Rather than take a stance the Mayor’s office played politics and stayed neutral.

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Published on: January 22, 2019

2019 Legislative Session Underway

By Benjamin Herbst

The 2019 Maryland legislative session is officially underway, and once again gambling and marijuana are set to take stage as two of the highest profile issues this winter. Healthcare, minimum wage and clean energy will grab occasional headlines, but the Blog will stay in its lane and only offer commentary on the criminal related issues set for debate in Annapolis. Marijuana seems like the less complex of the two criminal law topics because there’s really only one major question, to legalize or not to legalize. There is no doubt that recreational marijuana will one day be legal in Maryland, but it’s far too early to tell if this is a realistic possibility in 2019. Those who have been following the slow progress of state cannabis law believe 2020 is the more likely year for recreational sales to debut. Legalizing recreational use will certainly not be the only marijuana issue up for debate, as lawmakers will be forced to deal with lingering medical marijuana questions such as limiting the ability of large national corporations to buy out or undercut local grow operations and dispensaries. There will also likely be a host of issues tossed around pertaining to the number of grower and dispenser licenses that are available, and when these licenses can be issued.

As usual, the Blog will stay on top of all things cannabis in this year’s legislative session, but sports gambling may actually produce more headlines coming out of Annapolis. Maryland clearly missed the boat on taking advantage of a recent Supreme Court decision that made it unconstitutional to prohibit states from offering legalized sports gambling. New Jersey and neighboring Delaware were ready to pounce as soon as the decision came down, and their sports books were up and running within weeks. Both states have been raking in tax revenue for almost a year now, and casinos and racetracks in these states will be jam packed on Super Bowl Sunday (likely with a number of Maryland residents). In order to make up for the lack of foresight of previous lawmakers this year’s Senators and Delegates may try their hand at bending the State Constitution to legalize sports gambling earlier than once thought possible.

The State Constitution specifies that major expansion of commercial gambling must be a decision left up to voters by way of a referendum. The last referendum took place in 2012 when voters approved table gaming such as blackjack and poker and green-lit the new MGM National Harbor Casino in Prince George’s County. There were no gambling referendums in 2018 and the next chance to hold one will be in 2020, though many feel this is too long to wait due to the amount of revenue at stake. One potential solution could be to place sports gambling under the control of the state lottery, and treat wagering as just another lottery game. But taking bets on the Patriots to win the AFC is much different than selling Ravens scratch-off tickets, which is why the proposal could end up sparking intense litigation. And even if this lottery idea passes the General Assembly and is signed by the Governor, there is no guarantee that any bets will be placed before a potential 2020 referendum, as implementing new programs quickly and efficiently is not one of Maryland’s fortes. There are too many regulatory issue to be hammered out, and simple questions such as where betting would take place and potential tax percentages are yet to be answered.

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Published on: January 15, 2019

Baltimore City Crime Prevention Plan Announced

By Benjamin Herbst

The Governor of Maryland recently introduced a host of forthcoming law enforcement initiatives specifically aimed at reducing violent crime in Baltimore City. Baltimore’s violent crime rate has been trending in the wrong direction for years, and is a constant source of concern for residents, visitors and those who conduct regular business in the city. Putting all the embarrassing national news headlines aside, the bottom line is that people just don’t feel safe in Baltimore. While the Governor has shown discretion by not outwardly blaming the city’s leadership, it’s clear from his actions that he has no faith the local government can do what it takes to reverse this disturbing trend. The city’s leadership does not even appear to be directly involved with the creation or implementation of these new initiatives, which include the formation of violent crime joint operations center downtown.

The joint operations center will serve as home base for upwards of 200 new law enforcement officers from sixteen agencies and seven law enforcement task forces such as the FBI, DEA, ATF and the U.S. Marshals. The Baltimore Police and the State’s Attoney’s Office will also have a presence in the center, in addition to a special operations unit of the Maryland State Police. With all these new law enforcement officers pounding the pavement there will certainly be hundreds of new cases to prosecute, but if you think the Governor simply planned to hand all these cases over to the local prosecutor then think again. The Governor wants many of these cases to be handled in federal court, and is doing so by expanding the reach of Project Exile, a program where city gun crime offenders are prosecuted in federally. The feds are not footing the entire bill for the increased workload, as the Governor actually pledged state money for the sole purpose of hiring more federal prosecutors to prosecute violent crime in the city. Federal sentencing guidelines are harsher with respect to violent offenses and crimes involving firearms, and the U.S. Attorney’s Office is notorious for high conviction rates. A defendant is far more likely to serve significant prison time in the federal system due to mandatory sentences and no parole.

The governor also announced greater funding for victim and witness relocation programs, which will increase the likelihood that state and federal prosecutors will have their witnesses ready and available when it comes time for trial. Violent crime cases are routinely dismissed due to witness unavailability, and this has become a major issue in Baltimore City for state and federal prosecutors alike. Another announcement from last week was the introduction of the Repeat Firearms Offenders Act of 2019, which will double the minimum mandatory prison sentence from 5 years to 10 for those convicted of felon in possession of a firearm. This law was modified a few years ago to make the mandatory sentence discretionary if the disqualifying crime and any punishment (including probation) ended more than 5 years prior to the new incident date. The effectiveness of mandatory minimum sentences is arguable, but politicians love them so they’re here to stay.

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Published on: January 8, 2019

Package Thief Arrested

By Benjamin Herbst

Online shopping has never been more popular, but the convenience can come at a price. Like the old days, the preferred method of delivering a package to a single family home or townhouse is simply to leave it at the front porch. The inherent flaw of placing potentially valuable packages in plain sight of those walking or driving by is outweighed by the cost of repeat delivery attempts for companies like Amazon and UPS, and the unfortunate result is that package theft has become commonplace. We blogged about a string of package thefts in the Pikesville area of Baltimore County a few years ago, but until now this crime of opportunity has largely stayed out of the news. Last month a package theft in Harford County made national headlines, but not for the reasons you might think.

On November 30^th a five-year old girl was caught on camera taking a package from the front porch of another person’s Abingdon home, and the video quickly spread throughout the country. As you might expect, the girl appeared to be looking off to her side at someone for direction, and this someone was revealed less than 2 weeks later after an anonymous tipster identified the young girl. Police filed charging documents for a 46-year old Baltimore man on December 14 and a warrant was issued for his arrest that same day. There are currently four charges including theft, conspiracy to commit theft and 4^th degree burglary. The defendant was also charged under the Courts and Judicial Proceedings Article for contributing to certain conditions of a child, which makes it a crime to encourage a child to commit an illegal act. This offense carries a 3-year maximum penalty and a $2,500 fine.

Fourth degree burglary is charged when a suspect either breaks and enters a dwelling (home) or store, or is alleged to have entered the yard or garden of a dwelling with the intent to commit a theft, like in this case. This is the only misdemeanor burglary offense, and it carries a 3-year maximum penalty. First, second and third degree burglary are all felonies with maximum punishments ranging from 10 years to 25 years if violence is involved. The suspect in this case was charged with theft less than $100 because the package he stole contained a pair of boots valued around $90. This offense carries a 90-day maximum sentence, as does conspiracy to commit theft less than $100. The conspiracy charge is peculiar from a legal standpoint, as the State would basically be saying the defendant conspired with a 5-year old. This charge will almost certainly be dropped by the State.

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Published on: December 31, 2018

Former Police Commissioner Pleads Guilty To Tax Evasion

By Benjamin Herbst

Almost one year ago the Baltimore Police Department welcomed a new commissioner with high hopes he would be the one best suited to reverse the rising crime rate and restore the department’s reputation in the community. The department had become a nationwide embarrassment after numerous officers were convicted in severe cases of corruption, which included the armed robbery of citizens. There were also lingering allegations that the department unjustly targeted minority suspects, and also ignored service calls in the city’s most dangerous areas. At the time the Mayor was convinced her candidate for commissioner could begin to repair all the damage, but this vision came to an abrupt end four months later after the former top cop resigned amidst federal tax evasion charges. Recently the ex-commissioner pled guilty to those charges in a federal courthouse just a few blocks away from his former office atop police headquarters.

According to the Department of Justice the former commissioner pled guilty to three counts of failing to file individual federal tax returns in 2013, 2014 and 2015. Pursuant to the plea agreement the ex-cop also admitted to substantially reducing the amount of taxes withheld from his salary each year by claiming extra allowances and deductions. He went as far as claiming mortgage interest deductions and deductions for local property taxes when he didn’t actually have a mortgage or own any real property. He claimed business losses without owning any businesses, which all served to reduce the amount of taxes owed to the IRS and the State of Maryland. Additionally, the defendant did not file his 2011 and 2012 tax returns until 2014, and cooked the books when he did file in order to unlawfully save money. The former commissioner’s tax issues cost him his job back in May, and now they may cost him his freedom come March when the case is set for sentencing. Each of these charges carries a $100,000 fine and up to one year in prison. There will also be $67,587.72 in restitution that must be paid to the federal and state governments.

As a first time offender the former top cop will is unlikely to face a lengthy jail sentence for these misdemeanor offenses. On the other hand the judge will balk at any argument that the defendant simply “made a mistake” as the Mayor once characterized it. This was an ongoing course of conduct, and the continuous misrepresentations showed a certain degree of knowledge and intent. If the conduct was believed to have been a mistake or even straight ignorance the U.S. Attorney’s Office probably wouldn’t have charged the former police officer in criminal court. And even if the feds brought charges, if not for the recurring misrepresentations federal prosecutors likely would have entertained some sort of deferred prosecution agreement instead of going after three convictions.

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Published on: December 22, 2018

Lawmakers Pass Federal Prison Reform

By Benjamin Herbst

Maryland is notorious in the region for its harsh gun laws, but overall has a fairly liberal criminal justice system compared with other states and especially the federal government. Two years ago Annapolis lawmakers passed sweeping criminal justice reform that eliminated most mandatory prison sentences for drug crimes and lowered the maximum penalties for dozens of offenses. The Judicial Reinvestment Act will save the state millions of dollars by significantly reducing the prison population, and a good chunk of these savings will be invested toward treatment and reentry programs. Not all defendants in Maryland have been able to reap the benefits of the JRA though, as it does not apply to federal cases. To the contrary, federal defendants continue to face harsh penalties for non-violent drug crimes, and often even sympathetic judges have their hands tied at sentencing. As a result federal prisons are filled with inmates serving archaic mandatory sentences, but finally lawmakers have decided to do something about it.

The First Step Act recently passed by a wide margin in the U.S. Senate, and is expected to be signed into law fairly soon. While not as powerful as the JRA, the First Step Act is expected to significantly lower the federal prison population and allow judges more discretion by eliminating or reducing some mandatory sentences. It will also redirect money once spent on keeping defendants behind bars to establishing rehabilitation programs to prevent recidivism. The federal strikes laws are responsible for some of the most unjust prison sentences in the entire country, as a three-time drug offender faces mandatory life in prison upon conviction. While the strikes laws won’t be entirely scrapped, the Act will reduce the mandatory penalty from life to 25 years for a third strike and from 20 years to 15 years for a second strike.

The Act will also provide more opportunities for inmates to earn good behavior credit to reduce their stay, and allow offenders serving time for distribution crack cocaine to petition the court for sentence modifications. In 2010 the federal laws regarding crack were changed to mirror powder cocaine laws, but defendants convicted prior to 2010 were not permitted to take advantage of these changes retroactively until now. This provision alone could result in the imminent release of hundreds of prisoners that have been unfairly serving lengthy sentences. There are currently around 2,600 inmates serving time under the old crack cocaine law that was a shameful product of the war on drugs. The First Step Act is estimated to reduce the federal inmate population by around 50,000 over the coming years. This is a huge number considering there are currently around 200,000 federal prisoners, which translates to about 10 percent of the total U.S. prison population.

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