Criminal Defense Lawyer Blog

Published on: May 13, 2016

Man Convicted Of Manslaughter For Distributing Heroin

This past November Worcester County Police responded to a residence in Berlin to assist EMS with an apparent drug overdose. Medical professionals were unable to revive the 50 year-old man, but for the police officers their work was just beginning. Within hours officers were able to locate a suspect who had supplied the lethal heroin to the deceased, and fully blown investigation ensued. Officers first discovered the suspect after searching the recent call list of the deceased’s cell phone, and actually had a conversation with he suspect that same night. According to police records a 26 year-old man from Berlin first admitted to driving the deceased to Delaware to purchase the heroin, but further investigation revealed that the young Eastern Shore man actually delivered the drugs to the home of the deceased, and witnessed him overdose. This information was uncovered though an executed search warrant of the suspect’s phone that revealed text message conversations with the deceased, and the suspect was arrested shortly thereafter on charges of narcotics distribution and possession not marijuana.

While distribution of narcotics is a serious felony with a 20-year maximum jail sentence, prosecutors were not satisfied that this charge fully accounted for the defendant’s conduct. The State’s Attorney sought additional charges of manslaughter and reckless endangerment to incorporate criminal responsibility for the defendant in the death of the 50 year-old man. A grand jury agreed and returned an indictment for these two counts plus the original two drug counts. No plea agreement was reached, and the defendant gave up his right to a jury trial in favor of bench trial the Snow Hill Circuit Court. It didn’t take long for the judge to find the defendant guilty on all counts, and now he awaits sentencing in July. In addition to the 20-year max for distribution, the defendant also faces a 10-year sentence for manslaughter, 5 years for reckless endangerment and 4 years for possession. The defendant has multiple prior convictions for assault, which the judge will surely take into account at the sentencing hearing.

Charging an alleged drug dealer for manslaughter when a buyer overdoses is not a new concept nationwide or in Maryland, but that is not to say it is a common practice. Some states have specific statutes that enhance drug crimes when a buyer is injured or dies, but it is still rare to see a manslaughter conviction in a drug case. In this case though, police and prosecutors had ample evidence (most provided by the defendant himself) that the defendant directly supplied the heroin to the deceased and that he remained with the deceased while he took the deadly dose. To sustain a conviction for manslaughter in Maryland the state must prove the defendant committed an unlawful act that killed someone during the course of that act. The cell phone evidence gathered by police combined with the statements all but sealed the defendant’s fate.

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Published on: May 7, 2016

Carjackings On The Rise In Baltimore

By Benjamin Herbst

The Baltimore Police Department is warning motorists of the rising threat of armed carjackings presently occurring throughout the city. These incidents have taken place in record numbers in areas such as Homewood near John’s Hopkins and in the Brooklyn and Cherry Hill areas of south Baltimore. Most of the cases appear to be carried out by two or more individuals who initiate a minor fender bender on city streets. As the unsuspecting driver exits his or her car, one of the individuals from the accident-initiating car exits and confronts the driver. Many times the co-conspirators have used physical force to neutralize the driver before stealing his or her vehicle. Other times the robbers have used the threat of force such as brandishing a weapon to prevent the driver from resisting. Either way these incidents have caught the eye of city police officers, and have prompted the department to issue media warnings to motorists.

Police spokesmen have advised anyone involved in a minor traffic accident to stay in their vehicle with the doors locks and to call 911 immediately. The main message from police is that personal safety is far more important than properly exchanging insurance information for a claim. If handled correctly the thieves likely will either abort their criminal plan or flee the scene. Through the first four months of 2016 city law enforcement has documented 110 carjacking robberies compared to 75 during the first four months of last year. Standard automobile thefts are also up almost 20 percent so far this year, with 1,359 being reported as of April 30. The use of any type of physical force during the act of stealing a car will trigger charges for carjacking, which is a serious violent felony that carries a 30-year maximum jail sentence under section 3-405 of the Maryland Code. If a firearm is used the defendant faces an additional mandatory 5-year sentence. Just as in any robbery case, even the threat of force is enough to trigger a felony charge over a standard theft charge. This is true regardless of whether the culprit has the ability to actually carry out the threat, as all that matters is whether the victim reasonably believed the robber could follow through.

Advancements in anti theft technology in most new cars have resulted in a steady trend of decreasing automobile theft cases. In 2003 there were over 8,000 incidents, but in the last few years this number has been between 4,000 and 5,000. It appears that this year the number of car thefts will break 5,000 though, so hopefully this does not signal a shift in the recent trend. Motor vehicle theft falls under 7-105 of the Maryland Code, and is a felony with a 5-year maximum penalty.

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Published on: May 1, 2016

Baltimore And D.C. Causing Increased National Murder Rate

By Benjamin Herbst

During the early and mid nineties violent crime within the city limits of Baltimore and Washington reached unprecedented critical levels. In 1990 there were 474 murders in D.C., which led to the capital city taking on the notorious title of our nation’s murder capital as well. One year later a record 479 homicides were documented. Thirty miles north Baltimore was experiencing the same type of violent crime spike, with a record 353 murders taking place in 1993. Those who have studied crime in the early 90’s have often attributed the murder spike to the proliferation of crack cocaine as a big business street drug. With the lucrative business came turf wars between well-funded and well-armed gangs, who would kill for much less than preserving their profitable racket.

As law enforcement became more sophisticated and local governments began focusing on cracking down on the crack epidemic, these two troubled cities witnessed a dramatic decrease in their murder rates. By 2011 there were 196 murders in Baltimore, and in 2012 there were 92 total murders in Washington, which was the lowest total since the early 1960’s. These numbers, although nothing to be proud of, have remained fairly consistent over the past decade until last year, when troubling data came from both cities. Baltimore reported a staggering 344 homicides in 2015, which factoring in the city’s population decrease actually translated into a higher per capita murder rate than the record year of 1993. This was a 63 percent increase from 2014, and Washington wasn’t much better after reporting a 51 percent jump in homicides from 2014 to 2015. These increases were so significant that they almost single handedly caused the national murder rate to spike 13.3 percent last year. Chicago is also partially responsible, but their rate increased by a much lower 13 percent.

It is almost impossible to pinpoint an exact cause for the rise in murders and other violent crimes. In Baltimore though at least some of the spike can be attributed to the unsettled atmosphere following the spring riots, which also led to some western district police precincts decreasing their normal crime fighting tactics and deliberately becoming less of a presence. The spike in Washington is more of an enigma, though the some of the same factors could have contributed to the violence in D.C. Urban police officers in the entire country were undoubtedly hesitant to be proactive while on duty last spring and summer, as the whole world was watching with a microscope.

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Published on: April 24, 2016

Tougher Alcohol Laws Coming This Fall

By Benjamin Herbst

Two years ago Maryland lawmakers devoted much of their attention toward marijuana policy, and the media followed suit with daily stories updating the progress of decriminalization and medical pot. Last year was considerably quieter with respect to criminal legislation, but there were still significant changes made to the criminal expungement and shielding process, as well as to drug paraphernalia laws. This year the Justice Reinvestment Act grabbed most of the criminal legislation headlines, and it will continue to do so as it is implemented. Despite all the headlines surrounding the Act, it was not the only significant criminal bill to pass the General Assembly. Lawmakers also took a concerted effort to strengthen some of the state alcohol laws including passing a highly publicized DUI bill named after a Montgomery County police officer killed by a drunk driver. This law will lengthen driver license suspensions for DUI and DWI offenders, and also make engine interlock devices mandatory in certain cases. The legislature did not just target drunk driving, but went after once of its causes as well.

It is actually much easier for teenagers to obtain marijuana and illegal drugs than it is to obtain alcohol. Alcohol is larger and harder to conceal, and because it’s legal it’s actually regulated more tightly. There is simply no black market to buy and sell liquor, so kids often have trouble obtaining it. When they do it is usually from an older friend or relative, or in some cases from a parent. Lawmakers and lobbyists believe that if you discourage an adult from furnishing alcohol to a minor you can as a result cut down on the number of teen DUI cases. While it is currently illegal for an adult to provide booze to a teenager, the penalties are far from drastic; there is a maximum $2,500 fine for a first offense and a $5,000 fine for a second or subsequent offense. This means consequences are not often on the mind of an adult, which is something that the legislature feels is long overdue for a change.

Senate Bill 564 easily passed in both chambers and is a sure bet to become law in October. It increases the maximum penalty for providing alcohol to underage drinkers under 10-121 of the criminal code from a fine to a significant jail sentence of a year for a first offender, and two years for repeat offenders. When the bill becomes law it will likely create news headlines, and the state and local government will have little trouble getting the message out. This specific law does not apply to a licensee, or an employee of a licensee such as a bartender, as there are other regulations for bars, restaurants and liquor stores. The law applies to anyone else caught knowingly and willfully providing booze to a minor. The words knowingly and willfully are elements that the state would be required to prove in any prosecution for this offense, so it is not a strict liability crime, but come October it will be buyer (or giver) beware when it comes to alcohol.

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Published on: April 16, 2016

Federal Prosecutors Announce Large Baltimore Area Drug Bust

By Benjamin Herbst

The United States Attorney for Baltimore recently announced the indictments of four alleged drug traffickers that were arrested a week ago in Anne Arundel County by the DEA. This bust is one of the largest in the area over the past year, and it netted the government over $2.4 million cash and 30 plus kilograms of cocaine. The investigation began back in August when law enforcement officers received a tip about a possible drug operation using a Baltimore County trucking business as a cover up. Agents responded to the location of the suspected shell business in Essex to find that the trucking company had been evicted. Law enforcement later learned that the business had moved to Linthicum Heights, which is where officers began to conduct surveillance. After observing the four suspects numerous times the DEA decided to make their move, and stopped one of the men as he drove off the property in a pickup truck. Agents had observed that same truck enter and then exit the warehouse in a matter of minutes, thus peaking suspicion of surreptitious and possibly illegal activity. The DEA had a drug-sniffing dog on hand to check the truck as soon as the stop began, and the dog probably had little trouble identifying the alleged presence of 31 kilograms of cocaine. Cash and packing materials for the drugs were later found at the home of one of the suspects after law enforcement executed search warrants.

Traffic stops are a common way to initiate contact with a suspected drug trafficker because the law affords police a great deal of latitude in how these stops are conducted. This is true even if cops could care less about the actual traffic infraction in what is called a pretextual stop (unfortunately they also often make up an infraction), and it’s true even when cops have a K9 unit on hand as soon as the so-called traffic stop begins. Traffic stops are safer for the police because they can usually see everything going on in the car as opposed to conducting a raid on someone’s house, and these stops also allow police to maintain the element of surprise. Most defendants believe they are simply going to receive a traffic citation right up until the second the cuffs come out. Additionally the automobile exception line of appellate cases gives police freedoms that they do not enjoy when searching a house, place of work, or a person.

The four men now face felony charges for possession and distribution of cocaine as well as counts of criminal conspiracy in the federal court in downtown Baltimore. While the Maryland legislature has just passed a bill effectively doing away with mandatory minimum penalties for drug distribution, the Department of Justice has not shown a willingness to do the same in federal cases. The federal drug trafficking penalties currently include a five-year minimum sentence for trafficking between 500 grams and 5 kilograms of cocaine and between 100 grams and 1 kilogram of heroin. Anything over these amounts triggers a ten year mandatory prison sentence, which is what these defendants face based on the 31 kilograms seized.

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Published on: April 11, 2016

Lawmakers Look To Expand Domestic Violence Protection

By Benjamin Herbst

Today marks the final day of the 2016 General Assembly’s legislative session, and there is still much left to be decided on the criminal law front. We wrote extensively about the Justice Reinvestment Act, which has grabbed headlines for much of the last month. But there are other criminal law bills that will likely go into effect this fall, and these bills deserve some attention as well. One such bill was a measure originally taken by the House that looked to expand protections for victims of domestic violence. Currently a victim of domestic violence may petition the court for a protective order if he or she alleges that some form of abuse has taken place. Under the Maryland statute, abuse is now defined as an act that causes bodily injury or places the victim in fear of imminent bodily harm. Abuse also includes the crimes of rape, false imprisonment and stalking. Lawmakers from the House sought to expand the definition of abuse by adding harassment and malicious destruction of property but this measure failed to gain traction and was shut down after an unfavorable report by the judiciary. But now the bill has been revived in the form of an amendment to another Senate domestic violence bill, and it appears to be gaining steam.

Opponents of the amendment take issue with harassment being defined as a form of abuse. This is likely due to the broad definition of harassment, which is defined as maliciously engaging in a course conduct that alarms or seriously annoys another. No physical harm is necessary, and there is no exact definition of what a course of conduct actually means. This is a crime that while serious, is often the subject of false accusations because little objective proof is required to bring the charges; the word of the alleged victim is usually enough it initiate a case. While false accusations of harassment rarely stand up in court, they can have drastic effects on the accused if a temporary protective order is sought. Temporary protective orders can have immediate collateral consequences that can occur before the accused has his or her day in court, and this is the main reason while some lawmakers are hesitant to expand the definition of abuse to include harassment. But it appears that those in favor of expanding the abuse definition will be on the winning side of this debate.

The Blog will provide a final summary of the criminal law bills that will be heading to the governor’s desk this summer, and we will post a follow up article after all the dust settles. For now though, we expect that in October smoking marijuana in public will be a crime once again, and minimum mandatory prison sentences for drug felonies will come only at the discretion of the trial judge. Violation of probation procedures are also headed for drastic changes that will benefit defendants, and many prison inmates are looking at shorter sentences. As always, feel free to contact The Herbst Firm with any questions about these legal issues, as well as if you or a loved one has a criminal matter that calls for experienced representation. Benjamin Herbst handles all types of domestic violence cases including assault, harassment, and stalking, and is available at 410-207-2598.

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Published on: April 4, 2016

Justice Reinvestment Act Advancing In Annapolis

By Benjamin Herbst

The Justice Reinvestment Act is advancing in the House after the Judiciary Committee approved it by a wide margin last week. The bill is heading toward a full House vote, but lawmakers will likely be required to compromise on a few key issues before the bill ultimately gains approval from the General Assembly. The Senate and House versions differ slightly, and these differences must be hammered out before the bill is presented to the governor. The House version includes a racketeering provision designed to target gang related drug dealers, eliminates jail sentences for driving on a suspended license, and unlike the Senate version does not attempt to lengthen the maximum sentences for second degree murder and kidnapping. The overall tenor of the bill though is shared by both chambers of the Maryland Legislature; the House and the Senate share a strong desire to reduce the prison population and reinvest savings toward crime prevention through education and treatment. In our last post we outlined one of the four avenues lawmakers will use to achieve their stated goal and in this post we’ll touch on the other three.

Lowering maximum sentences for numerous non-violent offenses as we previously discussed is a step in the right direction, but alone will not reduce the number of prison inmates. To supplement lower maximum sentences the bill also focuses on modifying the parole process, streamlining violation of probation procedures, and eliminating mandatory minimum sentences for many drug violations. When a judge sentences a defendant to state prison time in a case not involving a minimum mandatory sentence he or she will not actually spend the entire sentence in prison. Maryland is a parole state, meaning that after serving a certain amount of the sentence (sometimes as low as 25%) almost all defendants are eligible for release under certain conditions. But the parole process can be defined as arbitrary and haphazard, and many times defendants who are of no danger and have been sufficiently punished remain in prison, while others are released too early. The bill attempts to implement a more refined and logical parole process in an attempt to find an appropriate actual sentence served for each different defendant. Under the Act all defendants will undergo a risk and assessment analysis promptly after sentencing. A larger array of educational and reentry programs will be offered once in custody, and the potential for monthly sentence deductions will be expanded. The goal is to keep offenders in custody for no longer than necessary, and the Act represents a major move toward this goal.

The Act also takes unprecedented measures to streamline procedure of probation violations. Hundreds if not thousands of defendants are sent to prison or back to county jail each year for technical probation violations. These technical violations can include missing and appointment, changing an address without approval, or not completing a drug class. Technical violations do not include new arrests or absconding from probation. Under the bill, defendant can be sentenced up to 15 days for a first technical violation of probation, 30 for a second, and 45 for a third violation. Fourth or non-technical violations may result in the defendant serving to the entire balance of the sentence. A judge may depart from these sentencing guidelines at anytime if he or she makes a finding that the defendant poses a risk to the public, or a victim or witness. If these probation violation changes are implemented both the prison system and the court system would reap the probable benefits of less inmates and lower caseloads.

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Published on: March 28, 2016

Senate Passes Criminal Justice Reform Bill

By Benjamin Herbst

The Justice Reinvestment Act is one step closer to becoming law after the Senate voted unanimously in favor of the bill last week. The Act would constitute the most comprehensive Maryland criminal legislation in decades should the governor sign it into law this summer, but first it heads to the House for further debate. There were a few hang-ups since the Blog posted on the Act a couple weeks ago that threatened its viability. These included a disparity in the amount of money the state would stand to save with the reform, and a heated debate on automatic penalties for technical parole and probation violations. But state senators sorted out these hang-ups and ultimately reached a firm consensus on the 96-page mega bill.

The main goal of the bill, which appears conspicuously in the title, is to save the state money by reducing the prison population and then to reinvest the money toward crime prevention. But as the 96-page bill length suggests, it’s not that simple. There is no single way to reduce the prison population because you can’t just decide to release a couple thousand inmates, and you can’t put a cap on how many defendants are sent there in the first place. Each criminal case is factually unique, which is why the trial judge is given almost full discretion on sentencing. In order to reduce the amount of prisoners you have to systematically adjust a judge’s approach to sentencing in the courtroom, and the amount of time a defendant actually serves after he or she is sentenced. Our reading of the mammoth bill leaves the impression that Annapolis lawmakers have developed four main platforms to adjust sentencing approaches.

The most obvious way to reduce the amount of defendants sent to prison is to lower the maximum penalties for the crimes they commit. Lawmakers have made those adjustments in the Act with respect to numerous offenses. They have lowered the maximum punishment for possession of marijuana from 1 year in jail to six months, and have lowered the maximum penalty of simple possession of other drugs from 4 years to 1 year. These other drugs include cocaine, heroin, and prescription pills such as oxycodone. Lawmakers have also lowered the maximum penalties for theft cases, which constitute the second most common class of criminal offenses after drug cases. Keep in mind that in Maryland DUI and DWI are considered traffic offenses despite being classified as criminal in many other states. Under the act, felony theft would require a minimum value of $2,000 instead of $1,000 and the maximum punishment would be cut in half from 10 years in jail to 5. The threshold for enhanced felony theft would rise from $10,000 to $25,000 and the maximum penalty would go from 15 to 10 years. Theft over $100,000 would carry a maximum 20-year sentence instead of the previous 25.

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Published on: March 23, 2016

Lawmakers Pushing To Criminalize Public Pot Smoking

By Benjamin Herbst

The twists and turns of marijuana legislation over the last couple years have made a tough go of understanding just where Maryland stands on pot policy. It’s safe to say that Annapolis has had a hard time passing marijuana laws that were successful the first time around. A few years ago patients and decriminalization advocates initially celebrated the passage of medical marijuana, but later experienced a huge let down when it was discovered the program had absolutely no chance of being implemented. Two years after that a medical program with actual teeth was established that unfortunately is still months away from implementation. Decriminalization of possession of less than 10 grams of pot was also celebrated, but some of the celebrations were muted after police began issuing criminal citations for possession of pot paraphernalia. The legislature failed to address the paraphernalia issue two years ago, and when they did last year the governor vetoed the law for not addressing smoking in public or while driving. This year the legislature overrode the governor’s veto and corrected the paraphernalia mistake, but the governor and numerous lawmakers still voiced displeasure that it is not a crime to smoke in public or in the car. As a result, Annapolis lawmakers are currently in the process of correcting another neglected component of marijuana policy.

This week the House passed legislation that would criminalize smoking marijuana in public and in a car on any state road. Public places have a broad definition under Maryland law, and include parks, restaurants, shopping centers, common areas of buildings such as stairwells, and even hotels. The ban also includes the common areas of apartment buildings that have more than four units, regardless of whether residents and guests are the only ones allowed on the grounds. House Bill 777, which will now moves to the Senate for approval, prohibits smoking marijuana in any of these public places. The bill originally prohibited any type of pot consumption, but this line was edited out and now all that is prohibited is smoking. One explanation for this edit may be the anticipation of edible medical marijuana that patients could discretely consume in public, but we will see if the Senate has other ideas about this specific line. A violation of this statute could trigger a criminal citation with a maximum punishment of a $500 fine, meaning that it does not carry the possibility of jail time. On the other hand, a violation could result in a permanent criminal conviction, and could trigger a probation violation or even a parole violation.

The bill also includes specific procedures for the expungement process of a criminal marijuana consumption statute. Unlike most criminal charges, a defendant who is convicted of this citation will still have to opportunity shield or even expunge a conviction for public consumption. Other offenses that fall under the new shielding statute include trespass, disorderly conduct, destruction of property, possession of a controlled substance and prostitution. Other offenses that can be expunged even after a conviction include drinking alcohol in a public place, loitering and riding a transit vehicle without paying a fare. A defendant must meet certain conditions including time limits before applying to expunge these convictions.

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Published on: March 16, 2016

Legislature Aims To Toughen DUI Laws

By Benjamin Herbst

A bill created to toughen state DUI laws is on the verge of General Assembly approval, and is likely headed for the governor’s desk this summer. The bill, named after a Montgomery County police officer that was killed after being hit by an alleged drunk driver, gained unanimous approval in the House yesterday and now moves onward to the Senate. Last week some critics felt the bill has been watered down by various amendments put in place by the House Judiciary Committee, but these fears were put to bed after the original restrictions were inserted back in the bill. As it stands now, the bill will make national waves as a concerted effort by Annapolis lawmakers to inflict harsher punishment on drivers who have been charged with DUI and DWI.

The original intent of the bill was to increase the implementation of the ignition interlock program. Maryland is already one of the largest program participants in the country, with well over 10,000 drivers using the device each year. The interlock device requires the driver to blow into a machine installed in the car, and an alcohol free breath sample is required for the car to start. The machine also has the technology to store data of samples that contain alcohol, which may be used in violation of probation procedures. Lawmakers originally wanted the interlock device to be mandatory for all defendants that either refused a Breathalyzer test after being arrested, or blew above .08. This provision was then modified to be an option in lieu of a license suspension, but now the mandatory interlock provision is back in the bill, and it’s safe to say that lawmakers will keep it there. Drunk driving related fatalities have been on a steady decline over the last ten years, and at least part of the decline has been attributed to the engine interlock program.

The bill is not specifically focused on engine interlock, but rather is a comprehensive upgrade of state impaired driving laws. There are also numerous provision related to suspending the driving privileges of those who have been cited or convicted of drunk driving. A first offender that blows over .08 now faces a 90-day license suspension, which doubles from the previous 45-day term. If the Breathalyzer results are over .15 the suspension will now be 180 days instead of the previous 90. Finally, if the suspected drunk driver refuses the Breathalyzer test his or her license will be suspended for a whopping 270 days for a first offense. This is a clear effort by the legislature to convince drivers to think twice before refusing to submit to the test. The suspensions increase upon second and subsequent offenses, and cap out at a maximum 2-year period for a third time offender who refuses a breath test. Keep in mind that an out of state driver who is arrested for DUI or DWI will not face a driver license suspension in Maryland, but rather their driving privilege in the state will be suspended. State and local police officers are not authorized to confiscate another state’s drivers license, but their home state will likely be notified, and may take action.

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