Criminal Defense Lawyer Blog

Published on: July 30, 2016

Police Chief Suggests Relaxed Marijuana Hiring Policy

While Maryland is hardly the foremost state when it comes to progressive marijuana policies, it has experienced a significant evolution over the past five years. In 2010 possession of trace amounts of marijuana was punishable by up to a year in jail, and medical marijuana was still a pipedream. As it stands now possession of small amounts of pot and the paraphernalia accompanying it is no longer a crime, and we are weeks away from the first grow facilities and dispensaries receiving their official licenses. Despite these significant changes to criminal laws, modified marijuana rules for the workplace have not yet taken shape.

Many employers in the public and private sector still drug test their employees for the presence of marijuana, and a positive test can cost someone their job. This has become a highly publicized issue in the National Football League, which has teams in states where marijuana use is legal. It is also an issue with respect to government jobs, where teachers, utility workers, court staff and many others face antiquated drug testing policies that punish marijuana use but don’t mention a thing about alcohol. No public sector job is as restrictive as law enforcement when it comes to marijuana use, which is understandable save for the fact that many law enforcement agencies focus on past pot use rather than current use. Maryland has some of the harshest regulations concerning prior marijuana use for its police officers, and at least one police chief believes it’s time for a change.

The Maryland Police Training Commission, which is responsible for establishing hiring regulations for all law enforcement agencies in the state outright disqualifies any applicant that has used marijuana more than 20 times, or more than 5 times after turning age 21. This policy has been in place since the 70’s, and was likely in response to then President Nixon declaring a national war on drugs in 1971. Forty years later the rigid hiring restrictions are still in place, and the Baltimore City Police chief is tired of turning away otherwise qualified applicants based on honest answers in their cadet applications. The city chief has suggested that the rule be changed to prohibit hiring only those that have used marijuana in the past 3 years. This is definitely a step in the right direction, and the chief should be commended for speaking out against this arcane regulation. In reality though this suggestion still comes up short in where we need to be in 2016.

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Published on: July 21, 2016

Dirt Bike Thefts Rampant Across Maryland

By Benjamin Herbst

Police officers in the Baltimore and D.C. metropolitan area have been trying to crack down on illegal dirt bike riding for years, but have little to show for their efforts. It seems this brand of illegal riding is as popular as ever, as it’s hard to take a daytime drive around the city without encountering a group of teenagers and young adults popping dirt bike wheelies in the street. The riding has become a nuisance for motorists and residents in the area, and police have responded by citing or arresting the riders and confiscating their bikes. This has been an ongoing thorn in the side of the police, but the problem has not really risen to a critical level until recently. The heightened concern is not only due to an increased amount of injuries to pedestrians and the riders themselves, but also the astronomical rise in the number of dirk bike thefts being reported in the metro area. It seems that urban riding has become so popular that it has created a lucrative illegal market for the bikes, which can in some instances cost as much as a car. Numerous thefts have been reported in Montgomery County, Frederick County, and in Baltimore City. The thieves have become organized and determined, sometimes following actual dirt bike riders home from the track, or researching where they live. One professional rider in Montgomery County had two bikes stolen from his house with an estimated total value of over $25,000.

In addition to becoming organized and determined, the market for bikes has caused some brazen behavior from thieves. Recently a group of young men actually broke into the Baltimore City impound, where bikes confiscated by police are stored. This group of ten young men were met by an unarmed security guard who could do little to stop the thieves other than call for backup. Six of the young men were arrested, but the other four got away with stolen property. One of the thieves allegedly flashed a handgun to the security guard as he gave chase. Outrage from the community and frustration from the police department has prompted the creation of a special police dirt bike task force to combat illegal riding in Baltimore City streets. This will undoubtedly lead to more arrests and more confiscated bikes, but as the popularity of street riding explodes it seems we are far from seeing an end to this activity.

The Blog will continue to follow cases involving illegal street riding in Baltimore and the surrounding areas. We will also follow cases of dirt bike theft as well. Those arrested for stealing dirt bikes will face the charge of motor vehicle theft, which is a felony with a maximum penalty of five years in jail. These defendants could also face felony theft over $1,000 and burglary charges. Many of the defendants are actually juveniles, and based on their age they could be tried as adults. The riders often face numerous traffic offenses such as driving an uninsured vehicle, driving without a license, and driving an unregistered motor vehicle. Some traffic charges related to illegal street riding carry jail sentences, expensive fines and points, which can lead to valid licenses being suspended by the MVA. Benjamin Herbst is a Baltimore criminal defense attorney who handles motor vehicle theft and burglary cases in all state and federal courts in Maryland including juvenile criminal court. Contact Benjamin for a free consultation about your case at 410-207-2598.

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Published on: July 12, 2016

Adults Civilly Liable For Serving Teens Alcohol

By Benjamin Herbst

Maryland’s highest court recently released a potentially groundbreaking opinion by ruling that adults may be liable for the actions of underage drinkers whom they provided alcohol. The ruling stems from two cases involving auto accidents where intoxicated teenagers were the drivers. The plaintiff in the Baltimore County case was walking her dog when she was struck by an SUV driven by an 18-year-old that had been drinking at the home of the defendant. The defendant had allegedly provided mixed drinks to the teenaged driver, and made no effort to assure that the young man would not get behind the wheel that night. The other case stemmed from a tragic accident that occurred in Howard County back in 2009. The plaintiff is the family of a 17-year-old that was killed as he was the passenger in the flat bed of a pickup truck driven by his allegedly intoxicated friend. The lawsuit states that the driver had been drinking in the garage of the defendant’s home with full knowledge of the defendant.

Both lawsuits target a third party that is claimed to be liable for damages caused by another individual, which in these cases are the two teenaged drivers. This theory of indirect third party “social host” liability is tough to prove and until now has never been recognized in Maryland. Upwards of 20 states have dram shop laws that allow liability of establishments arising from the sale of visibly intoxicated individuals that later cause injuries to another, but our state is not one of them. While this Court of Appeals ruling does not address dram shop, it will now pave the way for future civil actions against adults that furnish alcohol to minors. The court opined that young adults under the age of 21 are not competent to handle the potentially dangerous effects of alcohol, and are more susceptible to harming themselves or others when presented with the opportunity to drink in excess. According to the court some of the onus must fall on an adult that was present, and facilitated the conduct.

This appeals court ruling addresses civil liability, and it coincidentally comes at a time when the legislator has just expanded criminal liability for adults that furnish alcohol to minors. In May the governor approved a bill that will soon allow judges to incarcerate adults for up to one year if he or she provided alcohol to an underage drinker that subsequently injures or kills another person while driving a motor vehicle. This jail time provision was not present in the old statute, which under section 10-117 of the criminal code had a maximum punishment of a $2,500 fine for a first offense and $5,000 for a second offense. There will still be fines under the new law and the possibility of a misdemeanor criminal conviction, but jail time will only become a sentencing option in there is a serious bodily injury. Some lawmakers attempted to add a jail provision regardless of the minor causing an injury, though this version did not pass the General Assembly.

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Published on: July 5, 2016

Rough Times For Two Maryland Prosecutors

By Benjamin Herbst

Two Maryland State’s Attorneys recently made headlines for the wrong reasons, and now both may be in jeopardy of losing their title as top prosecutor. Last week a law professor a George Washington University filed a complaint with the Attorney Grievance Commission against the Baltimore City State’s Attorney. The compliant requests that the city’s top criminal prosecutor be disbarred over her handling of the cases against five officers charged after the death of Freddie Gray. Criticisms of her actions over the last 16 months include rushing to charge the officers with insufficient evidence, and holding a highly opinionated and fiery press conference soon after that decision. The complaint also cites her decision to continue to prosecute the remaining three officers after two were found not guilty. The office has not yet commented on the complaint, citing a gag order issued by a circuit court judge last year.

Further north of Baltimore another elected State’s Attorney also finds himself in bit of hot water, and this situation could have criminal as well as professional consequences. Cecil County’s top prosecutor was recently arrested in Ocean City on charges of indecent exposure after he was allegedly seen naked on the balcony of his hotel room. Police later released the lawyer without charges after consulting the Worcester County State’s Attorney Office. While it originally appeared like a case where one colleague helped out another it certainly didn’t end that way; after a quick investigation Worcester County filed charges in the Snow Hill Circuit Court for disorderly conduct and indecent exposure. While disorderly conduct carries a lower maxim penalty than indecent exposure (60 days vs. 3 years) it is likely easier to prove, as it only requires proof that the actions of the lawyer caused a disturbance to the public. Public could mean as little as one witness, but in this case there are two civilian witnesses as evidenced by the filing of two counts of each offense.

The Cecil County prosecutor is almost definitely a first time offender, and is not likely to see the inside of the county jail. But he could face a possible criminal conviction, which would all but end his legal career. Worcester County is notorious for being tough on first offenders that tarnish the tourist town image of Ocean City. This arrest already has ended the charged lawyer’s hopes of being appointed judge, as the governor recently stated that he would no longer be considered. The prosecutor later formally withdrew his name from consideration in order to fully focus on his defense.

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Published on: June 23, 2016

State Police Announce Massive I95 Pot Bust

By Benjamin Herbst

The Maryland State Police recently announced one of the largest highway pot busts in years after two young men from Philadelphia were caught driving with over 900 pounds of marijuana. The bust began as a routine traffic stop of a U-Haul van for an alleged unsafe lane change on the northbound side of I95 near Elkton. As the trooper was conducting the traffic stop he apparently noticed suspicious signs of criminal activity, and then brought out his drug sniffing K9 to assist. The dog alerted the trooper to the presence of a controlled substance, which led to a search of the van. Considering the amount of pot that was recovered it probably didn’t take long for the trooper to locate the stash and then arrest the two unlucky travelers. As it stands now, both occupants of the van are charged with four separate criminal charges, three of which are felonies. To add insult to injury, the driver was also cited for a $90 moving violation for his alleged unsafe lane change.

The two men are charged with possession of marijuana, but this is undoubtedly the least of their troubles. Each also faces possession with intent to distribute, which carries a maximum penalty of 5 years in prison, and one count of large amount controlled dangerous substance possession. Upon conviction, this charge has a minimum sentence of 5 years, and no portion of the sentence can be suspended. While the Justice Reinvestment Act will soon phase out minimum mandatory sentences for many drug crimes, the 5-year large amount sentence will remain law. This statute includes almost every street drug, including cocaine, meth, and opioids such as heroin and oxycodone. The amount required for a “large amount” charge varies by drug, but for marijuana all that is required is 50 pounds or more.

The fourth and final charge that the two young men are facing falls under a seldom used law that makes it illegal to import certain controlled substances into the state. This offense makes it a felony punishable by up to 25 years in prison to bring large amounts of drugs into Maryland. The cutoff for marijuana is oddly 45 kilograms, which is about twice the amount required under the large amount statute. Importing between 5 and 45 kilograms of pot triggers a lower maximum jail sentence of ten years. This offense is relatively rare for state court because multi state drug trafficking cases are often handled by federal law enforcement such as the DEA. In this specific case though there was no ongoing investigation, but rather the trooper basically just stumbled upon this mega stash of pot. This offense can also create issues for the prosecution, as it is an essential element of the charge to actually prove the defendants brought drugs in from beyond the border. In this case the state will need to prove more than just the fact that the defendants are from Pennsylvania, or that the van was rented in another state.

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Published on: June 15, 2016

Narcotic Overdoses Spike In 2015

By Benjamin Herbst

The Maryland Department of Health and Mental Hygiene recently released its report on drug and alcohol related intoxication deaths for 2015, and the data shows multiple alarming trends. Last year was the deadliest year on record with regard to state drug and alcohol overdoses. A total of 1,259 people succumbed to high levels of intoxication in 2015, which represents a 20 percent increase from 2014 and the fifth year in a row that the number has increased. One of the most alarming trends is the high number of fentanyl related deaths that are quickly becoming a major concern across the country. Fentanyl is a powerful narcotic that became popular for treating severe localized pain through adhesive patches that are placed directly on the skin. These patches are slow acting and provide long-lasting pain relief without an intense narcotic effect. Recreational drug users have little use for the patches as intended, but have found numerous ways to extract the narcotic and combine it with other drugs such as heroin. Illicit use of fentanyl produces an intense high that can be many times more powerful than heroin, and often times more deadly. From 2007 to 2012 there were about 30 fentanyl related overdoses a year in Maryland, but the last three years have seen a dramatic increase. In 2013 and 2014 there were 58 and 186, and last year there were a shocking 340 fentanyl related deaths in the state.

Politicians and other public officials have placed more emphasis than ever on combating the heroin epidemic, and the data supports their cause. Heroin related overdose deaths once again rose dramatically in 2015, with 748 cases reported statewide. This is more than double the average number of overdoses from 2007 to 2012. In contrast, the number of prescription opioid overdose deaths from drugs such as oxycodone has remained relatively the same since 2007, especially when factoring in population increases. The same can be said for cocaine related deaths, which were actually lower last year than in 2007. Benzodiazepine overdoses from drugs such as alprazolam (Xanax) and diazepam (Valium) have risen steadily over the last 8 years, but the 91 deaths in 2015 pale in comparison to heroin and fentanyl.

Readers of the DHMH report will notice that marijuana is nowhere to be seen in any of the overdose data, yet alcohol is high up on the list of killers. Alcohol is so ingrained in our country’s culture that it continually receives a pass despite its deadly consequences. There were 309 alcohol related overdose deaths last year in Maryland, and thousands more injuries, incidents of violence, and auto accidents that were caused by alcohol intoxication. Alcohol is available on every street corner yet it’s taking our state years to formulate highly restrictive regulations on where one can grow and sell medical marijuana. While this is a bit of a tangent, it continues to baffle the Blog.

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Published on: June 8, 2016

Teenagers Charged With Theft Of Taxi

By Benjamin Herbst

Anne Arundel County Police have reported that five teenagers were arrested for attempting to steal a taxi cab in Pasadena just before midnight this past Monday. Officers responded to a call for help after a cab driver reported he was involved in a verbal dispute with the five juveniles. The argument escalated after one of the teens took the driver’s cell phone. As the cabbie attempted to take back the phone, another teen jumped into the driver’s seat of the cab and attempted to take off. The cabbie then shifted his focus from the stolen phone to the car, and was able wrestle control of the wheel away from the juvenile offender. The five teens, all ages 15 or 16, then fled the scene in different directions with the cabbie’s phone. Several police officers arrived on scene, including two Ann Arundel County Police K9 units and one Maryland State Police K9 unit, to investigate and locate the suspects. All five were later found hiding in the surrounding area and were arrested. Four of the juveniles were from Pasadena and one was from Baltimore.

Each of the juveniles was charged via citation with three criminal offenses including theft, 2^nd degree assault, and unlawful taking of a motor vehicle. They were released to their parents after the booking process concluded. The five teenagers will now be brought through the juvenile criminal justice system, which will begin with an intake hearing with an officer from the Department of Juvenile Services. These intake hearings occur in the various offices of DJS, and are not held in court. An intake hearing is an informal setting where one of three outcomes is possible. After speaking with the juvenile, the parents and the juvenile’s attorney, the DJS officer can close the case and issue a warning, which is the best possible outcome for the juvenile. If the officer feels the facts of the case are too serious for a simple warning, he or she can choose to keep the case open and place the juvenile on informal supervision for 90 days. This option allows DJS to maintain some sort of authority over the juvenile without sending the case to court. The third option is for the DJS officer to recommend that the case be handled in the circuit court where the offense is occurred. The state’s attorney’s office would then take control of the case and file a petition for delinquency with the juvenile clerk.

The decisions of the intake officer are not always final. The victim, which in this case would be the cab driver, could appeal if for example he is unsatisfied that the case was not forwarded to the state’s attorney. The state’s attorney’s office could also choose to file a petition with the circuit court if they feel informal supervision is inadequate. Typically felony charges end up in the circuit court, so it is likely that at least one of the five juveniles will have their case heard in an Annapolis courtroom. Unlawful taking of a motor vehicle is a felony, as is theft over $1,000. All juvenile cases are under seal and not available to the public, so the Blog will not be able to post a follow-up on these cases, but keep checking back for criminal law news around Maryland.

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Published on: June 1, 2016

Two Arrested For Baltimore County Package Thefts

By Benjamin Herbst

The Baltimore County Police have reported the arrest of two men in connection with a string of package thefts in a single family home development in Pikesville. Residents in the area of Smith Avenue and Greenspring Avenue have been noticing missing packages for the last couple of weeks, but many never suspected wrongdoing. Some residents even took notice of a suspicious vehicle driving slowly through the new construction development, but did not make the connection to missing packages. Eventually the area residents and the county police caught wind of the ongoing conspiracy and went on high alert, and their vigilance paid off. Two suspicious men in reflective vests were reportedly seen removing packages from the front porches of houses, and then leaving in a dark colored SUV. Information about the dark SUV spread quickly, and when the men returned a neighbor followed them to get a closer look at the license plates. Armed with the license plate information it was only a matter of time before county police found and arrested their suspects.

The two suspects were charged with seven counts of fourth degree burglary and seven counts of theft less than $1,000. The 25-year old defendant was released on a $25,000 bail, while the 47-year old defendant is still being held on a $20,000 bail. Each count of burglary likely matches up with a corresponding theft count to represent one act, so it appears that there were seven individual crimes. Under state law a defendant can be convicted of burglary and theft at the same time for one criminal act. Theft less than $1,000 is a misdemeanor with an 18-month maximum sentence while 4^th degree burglary under section 6-205 is a misdemeanor with a 3-year maximum jail sentence. Fourth degree burglary is the catchall burglary charge in Maryland, which means there are wide ranges of factual scenarios that fall under the statute. It includes breaking and entering a house or any type of building, and also entering the property of another with the intent to commit a theft. Unfortunately for the two suspects, property of another includes the yard, garden and porch.

If the facts of the these package thefts turn out as they were reported by police then prosecutors will have little trouble proving the burglary charges. Some of the theft charges may have to be reduced to less than $100, especially considering one alleged victim reported that all that was taken from her was a box of coffee. But with a total of seven different incidents to choose from it seems like these defendants are headed toward a plea, as the state basically has seven shots at a conviction. As with any burglary case though, identity is always the key issue. The best way for a lawyer to defend the case at trial would be to challenge the state’s ability to prove who actually took the packages. There is little chance that any of the alleged victims know the defendants personally, and they were not caught in the act. The state’s case would then come down to in-court identifications plus any circumstantial evidence that police have gathered. The Blog will follow these cases, and may post an article about their resolution in the future.

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Published on: May 25, 2016

More Delays For Medical Marijuana

By Benjamin Herbst

Maryland is quickly approaching the notorious distinction of slowest state to implement legalized medical marijuana, and after two years we are still nowhere close seeing the first state dispensaries open their doors. The lawmakers who supported medical marijuana are frustrated, the investment groups who have millions tied up are frustrated, and most importantly the patients who need treatment are frustrated. And to make matters worse, the commission that was established to oversee the program has offered little public explanation for the delays. Back in December we published an article about the commission being overwhelmed by the number of grower and distributor applications, which doomed the January 2016 target date for awarding licenses. The commission, which went without a leader for four months after the executive director resigned in December, did not offer a revised date last winter and they are not offering one now. The only thing we do know is that the firm who is evaluating and ranking the grower and distributor licenses has been retained for an extra four months, and will be paid more than $2 million when it’s all said and done. The firm is supposed to finish ranking the estimated 900 applications by this July, but then the commission must still debate over who will actually receive the licenses.

With so much riding on the application rankings and the ultimate decisions by the commission, there is bound to be heated disputes over the process. The experts hired to review the applications have been kept secret, and have signed affidavits denying any relation to the prospective growers and distributors whose names have been redacted from the applications. But despite these precautions there have still been allegations of secret meetings between state officials and applicants, which has prompted other applicants to call for the process to be more transparent. There are fears that those investors whose applications are denied will file suit and challenge the commission’s decisions in court, thus further delaying the process. With all the money at stake and the mounting frustration it seems like multiple lawsuits over the selection process are inevitable.

In addition to the selection process being under scrutiny, there was also a recent controversial decision by the commission to limit the number of processor applications to 15. There was already a cap of 15 on grower licenses, but there was no such limitation on who could be licensed to process the plant material into other forms such as edibles and oils. This decision was apparently reached with little debate, and once again there was no detailed explanation made available to the public. Now some growers may face the additional expense of outsourcing for their processing needs, and the product may be harder to track after an additional party is involved in production.

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Published on: May 19, 2016

Police Announce Large Howard County Marijuana Bust

By Benjamin Herbst

Howard County may not be known for high volume drug trafficking, but a recent marijuana bust near Columbia captured state headlines last week for its shear size. Police are reporting that the 600 pot plants found in a four bedroom Glenelg home set the record for the county’s largest illegal marijuana grow operation, and two suspects were arrested and charged with multiple felonies. The male and female defendants were apparently renting the home, which was auctioned off last month. Upon visiting the recently acquired property, the new owner saw a suspicious van in the driveway and called police. Cops then allegedly smelled a strong odor of marijuana and observed other suspicious signs at the property, and they applied for a search warrant. In addition to the plants, the search revealed a sophisticated growing operation with ventilation, hydroponics and lighting systems. Police also found 8 pounds of packaged marijuana, THC wax, $75,000 cash, heroin, prescription pills, cocaine and a firearm. The estimated street value of the seized plants was over $270,000.

The female defendant was found in the home at the time of the search, and was arrested that day. She was charged with two felonies including manufacturing CDS and possession with the intent to deliver. Each of these charges carries a five-year maximum jail sentence because the drug at issue was marijuana, and not a narcotic such as heroin. The female defendant is also charged with two counts of possession, most likely for the heroin, pills or cocaine that was found. These charges are misdemeanors that carry a four-year maximum sentence. Currently the female’s case is set for a preliminary hearing on June 3^rd in the Ellicott City District Court, but the case will likely be indicted and sent straight to the Circuit Court for Howard County.

Police did not arrest the male defendant at the grow house, but found and arrested him shortly thereafter. He was charged with the same two felony counts plus an additional felony count for possession of a firearm in a drug trafficking crime. This charge carries a mandatory minimum prison sentence of five years and a maximum sentence of 20 years, and in this case was likely filed due to police finding a shotgun at the house that they traced back to male defendant. Section 5.621 of the Maryland criminal code applies to anyone who possesses a firearm during the commission of a drug felony. It serves as an enhancement, and is part of the state’s concerted effort to jail defendants that commit crimes with guns. Unfortunately police officers and even prosecutors often wrongfully incorporate this particular statute. The appellate courts have repeatedly said that the firearm at issue must have some sort of nexus or connection to the drug felony. In other words the government must prove that the gun served a purpose in furthering the crimes, which in this case were manufacturing and possession with intent. If the defendant was not dealing marijuana out of the rental house, and the gun was simply there with his other possessions then there would be no nexus to the drug crimes. On the other hand, if the defendant kept the gun as protection during his illicit transactions then there would be a nexus.

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