Being arrested or finding out that a loved one has been arrested is an unpleasant experience to say the least, but knowing what lies ahead can eliminate some of the stress and anxiety about the situation. Most people that are arrested in Maryland are booked at the police station and then taken before a District Court Commissioner. Those arrested on a failure to appear or violation of probation bench warrant will go directly to the commissioner. While we could write an entire article on the pitfalls of the commissioner system, we’ll save that for another post and just stick to offering a general overview of the arrest process. The commissioner will look at the charging document and first make a determination whether there is probable cause that the defendant committed the charged offense. Then the commissioner will determine whether the defendant will be released and with what conditions. For non-violent offenses such as theft or drug possession defendants will typically be released on their own recognizance. Out of state defendants may be required to post a bail, but the bail could be unsecured, which means the defendant will only have to pay money if he or she does not show up to court.
Defendants charged with violent offenses such as second degree assault and more serious misdemeanors such as burglary or firearm possession may still be released by the commissioner, but typically with pre-trial supervision. Pre-trial supervision is similar to probation, in that the defendant will be supervised prior to the case going to court. Pre-trial supervision can include strict conditions such as home detention and could also be lenient and only require the defendant to call in once a week. When a defendant is released on any case involving a victim the commissioner will almost always put a no contact order in place, and violation of this order could result in an arrest warrant being issued.
Defendants that are charged with a felony (or even misdemeanor gun possession in Baltimore City) may face an uphill battle when they go before the commissioner. Exceptions are felony theft cases with a value of less than $100,000 and possession with intent to distribute marijuana. Those charged with distribution of narcotics are also frequently released by the commissioner, but if large quantities of heroin or fentanyl are recovered then the defendant may be held without bail. Anyone who is not released by the commissioner or who fails to post bail by the next business day will be brought before a judge for a bail review. These initial bail reviews are usually done by video and the defendant will not be brought to court. The judge will first hear from a pre-trial release officer on whether the defendant qualifies for supervision and then the lawyers will have a chance to speak. The Assistant State’s Attorney will speak first, and typically go along with pre-trial’s recommendation, though in Baltimore City cases the district court prosecutors frequently ask for the defendant to be held without bail regardless of what pre-trial says. The defendant’s attorney will then have a chance to argue why his or her client should be released. The attorney must touch on the two main issues of assuring the judge that the defendant will return to court (flight risk), and convincing the judge that the defendant is not a danger to the community. Defense lawyers are not typically permitted to call witnesses at bail review hearings, but they may proffer to the court what a witness would have said, and also point out any family members that may be in attendance. Having family present during a bail review may be the difference between release and being held, as judges like to see that a defendant will have a stable place to live upon release.
If a defendant is denied bail and pre-trial supervision by the judge he or she may have to wait in jail until trial or until a lawyer files a second bail review motion or petition for habeas corpus. Habeas motions are filed with the civil clerk of court, and if granted will result in the defendant being brought before a circuit court criminal judge, typically by video. Some jurisdictions like Baltimore County will treat habeas motions as bail reviews, but others will only entertain bail if the defense shows that there was a legal error in the district court bail review. Filing second bail reviews and habeas motions take time, so the best advice is to have a well-prepared attorney for the first bail review or at the commissioner’s office if possible. Benjamin Herbst is an experienced bail review lawyer that handles all types of criminal charges in Maryland from misdemeanor theft, assault and gun possession to felony drug distribution and robbery. Benjamin also handles juvenile criminal cases and is available anytime at 410-207-2598 for a free consultation about your case.