Tuesday, November 29, 2011
Thursday, October 27, 2011
Thursday, September 22, 2011
(iv) In the absence of a compelling reason for failure to attend a hearing, failure of a person to attend a hearing is prima facie evidence of the person's inability to answer the sworn statement of the police officer or the test technician or analyst, and the Administration summarily shall:
1. Suspend the driver's license or privilege to drive; and
2. If the driver is detained in a commercial motor vehicle or holds a commercial driver's license, disqualify the person from operating a commercial motor vehicle.
Maryland also has regulations known as Comar and they provide as follows:
.12 Failure to Appear.
If a licensee who has been given notice of the hearing fails to appear for the hearing, the Administration may:
A. Suspend the applicable privilege pending the licensee's appearance at a hearing on a date set by the Administration; or
B. Upon good cause shown to the satisfaction of the Administration as to why the licensee could not appear at the originally scheduled hearing, terminate any suspension imposed under this regulation, and send notice to the licensee of the newly scheduled hearing date.
My argument is that if they cannot find good cause then they should still give him a hearing at provided for under section A. above. The jury is still out on whether they will.
Meanwhile, my client is definitely suspended and cannot drive because he missed a hearing.
Tuesday, September 6, 2011
Speeding is the #1 violation in fatal motor vehicle crashes. I am extremely fortunate to not have been a part of an accident while having my license. Motor vehicle crashes are the leading cause of death among the ages five to thirty-four in the U.S. More than 2.3 Million adult drivers and passengers were treated in emergency departments as the result of being injured in motor vehicle crashes in 2009. Many teenagers seem to ignore the potential risks of speeding and unfortunately sometimes, as a result, become another number in these statistics. The dangers of speeding are both obvious and unrecognizable to drivers.One of the most obvious dangers associated with speeding is the impact that it has on our ability to carefully and safely operate a motor vehicle. It is a fact that when we speed, we are less able to rely on our natural reaction time when an obstacle is perceived. Speeding significantly reduces this reaction time and prevents us from doing what is necessary to avoid a potentially dangerous situation. Though braking and swerving are actions that we naturally take when faced with an obstruction on the road, their effectiveness is severely compromised by traveling at a high rate of speed. This is primarily because a driver who is speeding does not have the time (or space) to determine whether such a course of action will really enable him to avoid the perceived danger or whether it will lead to an even more dangerous situation.
Acknowledging the dangers of speeding is important and helpful in preventing the violation, however, it is knowing the reasons why we speed that will truly stop us from continuing to put us, and others, in danger while on the road. One of the biggest reasons I have found myself pushing the pedal a little harder is when I am running late. I feel an extra urgency to pick up the pace and make up for wasted time. I know, based on feedback from my friends and others, that this factor is certainly common among young drivers, and even older ones as well. To fix this I found a simple solution. When I am running late I make certain I do not speed because of it. Realizing my habit of speeding has created another habit of understanding and compensating for my usual tendencies. Ultimately I have stopped excessive speeding and am more aware of my driving habits.
Another danger of speeding, or perhaps the greatest danger, is the fact that it is often not recognized as a danger. Few drivers, including confident and experienced drivers, would hold that engaging in distracting activities such as using a cell phone, texting, eating, etc. are conducive to safe driving. Even fewer drivers would argue that driving under the influence is prudent. On the other hand, drivers who occasionally or consistently drive above the speed limit are ready and willing to provide a list of reasons for why speeding does not qualify as an unsafe and potentially life-threatening hazard. Those who do recognize the dangers of speeding will often rationalize or justify speeding in a number of different ways. I would say, as would many others, that because everyone else speeds, it is easily permissible. However, just because everyone is doing it does not mean you should too. I have driven with the thought of “going with the flow of traffic” but have always wanted to be the leader in the “flow”. With this realization I have mentally changed my connotation of the phrase and permanently decided to be content and willing to stay in the correct “flow”.
Realizing the reasons one speeds is a simple solution to the inconvenient habit. If you truly follow through with self-analyzing natural tendencies and motives, it is easy to be successful and stop yourself from repeating the same mistake too many times.
Thursday, September 1, 2011
Wednesday, August 31, 2011
Friday, August 26, 2011
Wednesday, August 24, 2011
After shooting his cousin in the neck and a stranger in the back in Gaithersburg, Maryland I was able to generate enough evidence to reduce attempted murder charges down to the misdemeanors reckless endangerment. At the time of the guilty plea my client was given no jail time but was given 18 months of probation in front of a very tough judge. Any violation of his probation conditions would lead to the two years of backup time. This the judge promised.
My client generally did well on probation. He had a job, he was obtaining his GED, he was in counseling and he was very active in his baby's life. Unfortunately, my client felt that he needed to use marijuana. He was missing many of his urine tests but the probation officer let that slide. Finally, the police were conducting a raid at a home for a different person and my client happened to be there and he happened to have six small bags of marijuana in his pockets. He was charged with possession with intent to distribute marijuana and this would be a violation of his probation.
I was able to beat the marijuana charges using a constitutional argument.
The original sentencing judge did not care. He issued a warrant for my client's arrest. My client turned himself in. I appeared with my client at the initial bond hearing. At the bond hearing the judge was already trying the violation of probation case. He was already finding my client in violation of his probation. I argued this was obviously not proper and we were here merely to set his bond. The judge revoked his bond. I asked for a probation hearing to be set in the near future.
Despite the fact that he was acquitted on the possession of marijuana the judge insisted on going forward with the violation of probation. Frankly, that is the state of the law in Maryland. The burden of proof in a criminal case is beyond a reasonable doubt. The burden of proof in a violation of probation case is by a preponderance of the evidence and the quality of the evidence is much less substantial. Nonetheless, I was able to research case law and found that in Maryland normally hearsay evidence is not permitted at a violation of probation hearing. At the first hearing for violation of probation the prosecution did not have its officers to prove the case. The prosecutor, the probation agent were both pushing to have probation continued and if my client did well on probation to withdraw the hearing. This judge would have none of that. He ordered the prosecutor to get a transcript of the marijuana trial and use that as evidence at the next violation of probation hearing.
At the next violation of probation hearing the prosecutor had the transcript but did not have the chemist for the drugs. I argued that the transcript would violate my clients constitutional right to confront witnesses and cited the Maryland cases which supported this position. The judge accepted that and the prosecutor was able to get some of the officers to come to court that day. We had a trial but at the end of the trial the judge postponed the case because the chemist was unavailable.
On the next trial date the chemist was late. I put on five witnesses to establish everything my client had been doing well while on probation. One witness was particularly effective. He works at the Upper County Youth Center. He testified that my client was at the youth center three to four times a week for three to four hours a day studying for his GED. He was also receiving counseling from this witness. The judge was paying close attention.
Finally the chemist showed up and was able to prove that the marijuana in the bags was indeed marijuana. The judge was convinced that my client was guilty of possession of marijuana and violating probation.
The judge was ready to give my client the full backup time. I was able to successfully argue that it would be unfair. My client had spent most of his time on probation doing the right thing-working, getting counseling, getting a GED, trying to get his driver's license. The judge finally relented and instead of giving the full backup time gave 18 months of local time with a consideration for the work release Center in Montgomery County which would allow my client to spend his days working rather than being locked up. This was very unusual for this judge.
Although I did not prevail for my client I appeared five times in court on the violation of probation (there was an initial appearance before another judge regarding a bond hearing), I had law to support my client's position and I had fact witnesses to help in mitigation of sentencing. I fought the state's tooth and nail and at least was able to achieve two things. My client did not get the full backup time. My client is eligible for work release.
Friday, July 29, 2011
Wednesday, July 20, 2011
Monday, July 18, 2011
Monday, July 11, 2011
Tuesday, June 28, 2011
Wednesday, June 8, 2011
Friday, May 27, 2011
Tuesday, May 10, 2011
At trial I sequestered all the witnesses which means that they could not hear what the other one said on the stand. The officer that came up on the driver side testified that the 11 g of marijuana was found under the driver seat in a plastic bag. The cigar paraphernalia was found in front of the passenger seat where my client was sitting. This was consistent with his police report. Nowhere in his report did it state that there was a smell of marijuana. Nowhere in his report did it state that the backseat passenger claimed ownership of the marijuana. The officer testified that he could smell marijuana from the car and that it smelt of freshly burned, perhaps burned in the last hour or so. The officer also testified that there were tobacco crumbs on the floorboard in front of the passenger.
The officer who came on the passenger side where my client was sitting testified that the other officer found the cigars and that the package was open and that at least two of the cigars had been hollowed out to receive marijuana. He also testified that the 11 g of marijuana was found on the passenger side of the vehicle. Dissemination he admitted that he was not the one who found the marijuana and that he was mistaken and that the marijuana was found under the driver seat. I showed him the evidence of the cigars. The cigar package was completely sealed. It had never been opened and none of the cigars were taken apart.
My client testified that he had called his friend to pick him up and borrowed his friend's jacket. He put the jacket on in the car. He did not notice that there was any marijuana on it. The marijuana was not his and he had no idea that it was in the car.
At the close of the evidence the judge had trouble with the testimony from the police. The officer testified that the cigar package was open and that the cigars had been tampered with. The evidence clearly showed that the package was sealed and the cigars were intact. The person in the back claimed ownership of the marijuana. It was not clear whether the marijuana was under the driver seat or under the passenger seat. It was not clear about the smell of marijuana. It was not clear whether there was a burnt marijuana cigarette in my client's pocket. The judge had a reasonable doubt in my client was acquitted.
With respect, I do not believe that the police officers were as ready as they could have been. They left many important facts out of the report which I brought to light. In other words, they testified to things that were not contained in the report. These were important matters such as the officer who had my client claimed that there was the remains of the marijuana cigarette in the jacket. That was nowhere in the report. They also tried to testify what my client said. That was nowhere in the report and because they did not turn over this information prior to trial the judge excluded using that information. They had a videotape of what happened that the arrest scene but that was not used by the prosecution. Experienced cross examination brought out the conflicts and problems in the state's case and led to an acquittal.
Thursday, May 5, 2011
She hired me and we requested a hearing at the motor vehicle administration to avoid a license suspension. The above facts were revealed at the motor vehicle administration. My client further testified that she had told the officer that she was waiting for her designated driver and she had no intent of driving home. Even though she was in the car, behind the steering wheel, the engine was running, the radio was on, the headlights were on, and she was legally under the influence of alcohol, the motor vehicle administration judge sided with our position, which was supported by the case law, that she was merely using the vehicle as a shelter and therefore she was not driving the vehicle as defined under Maryland law. The judge credited her honesty with the police officer-she had admitted to drinking many specific drinks. Based on that honesty the judge believed my client at the hearing.
The judge took no action, my client was able to keep her license.
Friday, April 22, 2011
My client was recently served with a notice of a protective order hearing in Washington, DC. The complaint was vague-in it it claimed he made threats of violence, was harassing the victim, was stalking her, caused her to lose her job. There was not a single specific fact alleged. He received a notice the day before the hearing. He told me he had never done anything wrong with this victim and had no idea what it was all about. He did not send her nasty e-mails or leave awful voice messages which could be used against him, he told me. He had no witnesses because he did not know what she was alleging. He gave me some background on the victim and with that we went the next day to the trial.
The case was called and the victim testified that my client had called her on the telephone approximately 17 times in approximately 10 days. She had taken pictures of her cell phone showing his number on the cell phone. I could tell the judge was getting annoyed at my client.
After that she claimed that while she was at church with her cousin and her baby her cousin went outside with the baby. My client was there and pointed a gun at the baby and threatened the cousin. At this point, the judge became alarmed and called on security. Things were not looking good for my client. The victim testified further that she spoke with my client's wife. His wife told the victim that she had better not pursue the felony gun assault charges because my client threatened to kill his wife if the victim pursued the matter. His wife and the victim were sisters.
The victim then called on her mother who testified that she went down to my client' s place of business. My client went outside with the mother and pulled a gun on the mother and pointed it at her and threatened her. The mother testified that a police car drove by and then my client ran away.
One of the greatest writers on evidence, John Henry Wigmore stated, “Cross-examination is the greatest legal engine ever invented for the discovery of truth." On cross examination I used the police report that the victim brought against her. The victim testified that she had identified my client to the police. She had given the police his name, she had spelled his unusual name. The police report was quite detailed. Nowhere on the police report did it include his name. Further, on hard questioning, it appeared ridiculous that she would drop the charges especially when he is making death threats against his own wife. It would've been much more logical for both of them to go to the police at that point and have him arrested immediately. The victim admitted on cross examination that she was convicted of felony possession with intent to distribute drugs. Several months earlier she admitted to being involved in a custody dispute and admitted that the defendant testified at the dispute. She testified that his testimony was not against her. In that dispute she lost legal custody of her child.
On cross examination the mother also lost all credibility. That the mother would not go to the police immediately after being threatened with the gun when the police had just rolled by was preposterous.
I put my client on the stand and he explained that he shared the cell phone with his wife who was the sister of the victim. He explained he never threatened anybody with a gun. At the time that the threat was made he was at work. He testified that at the custody dispute he told the judge that the victim had acted inappropriately as a parent to her children.
At the end of the case the judge found the mother to be completely incredible and gave no weight to what the victim had said. The felony conviction discredited her. Her testimony about the custody battle discredit her. He dismissed the order against my client.
I was pleased that the judge was able to keep an open mind after he had ordered and security. My client, decent man, was able to survive lies and false accusations due to the power of cross examination.
Wednesday, April 13, 2011
An additional upside is that they now appear to have printouts of their findings. The printouts are much easier to read but more importantly, they give you of the issues that are before the judge. Below is a sample computer printout. Please call me if I can give you advice on any motor vehicle administration hearings that are upcoming. Remember that usually there is a very short amount of time in which to request a hearing once you have notice of a problem. Call me to discuss this.
drivers license number DOT-APS-case number
FINDINGS OF FACT - APS
After considering the evidence and testimony presented in this case, I find by a preponderance of the evidence the following facts:
1) The police officer who stopped or detained the Licensee had reasonable grounds to believe that Licensee was driving or attempting to drive a motor vehicle while under the influence of or impaired by alcohol, drugs, a controlled dangerous substance, or any combination of the aforementioned, or in violation of an alcohol restriction, or did drive, operate, or be in physical control of a commercial motor vehicle while having any alcohol concentration in their blood or breath based on the following:
2/8/11 23:16 pm; drove on the wrong side of the double yellow line; ran a stop sign.
2) There is evidence of the use of alcohol, drugs, controlled dangerous substance or any combination of the aforementioned based on the following:
strong odor; told officer had 4 beers; performed poorly on the standard field sobriety test indicaiting clues of
intoxication on the horizontal gaze nystagmus; walk and turn and one leg stand.
The officer fully advised the Licensee of the administrative sanctions that could be imposed: Yes 0 No d
The officer requested that the Licensee take a test as defined under Md. Code Ann., Transp. § 16-205.1 (a) (1) (iv):Yes E Nod
The Licensee drove or attempted to drive a motor vehicle and took the test as requested, indicating an alcohol concentration of :
Yes E Nod 0.09 grams of alcohol per 210 liters of breath at the time of testing: Yes d NoE grams of alcohol per 100 milliliters of blood at the time of testing:
The Licensee refused to take the test: Yes d NoE
The Licensee was driving a commercial motor vehicle: Yes D NoE
OTHER FACTS [IF NEEDED]
WK: Construction as a Laborer; works at various job sites in VA, DC and MD; Takes two children to school; takes young child to doctor's appointments A/E: never been evaluated for alcohol education or treatment;
D The Licensee failed to appear after due notice to address on record.
CONCLUSIONS OF LAW
E Based on the foregoing, I conclude that the Licensee did violate Md. Code Ann., Transp. § 16-205.1 D Based on the foregoing, I conclude that the Licensee did not violate Md Code Ann., Transp. §
MODIFICATION OF DETERMINATION
I have weighed the adverse effect upon Licensee's need to drive for employment or alcoholic prevention purposes versus the State's need to maintain safety on the public highways.
Licensee has had a license suspended under Md. Code. Ann., Transp. §16-205.1 in the past 5 years: Yes D NoE
Licensee has been convicted under Md. Code. Ann., Transp. §21-902 in the past 5 years: Yes D NoE
Licensee needs a license for employment purposes: Yes E Nod
Licensee needs a license to attend alcohol prevention or treatment program: Yes D NoE
Driving privilege is:
Suspended for: 45 DAYS
Revocation Extended for:
CDL Disqualified for:
License Refusal Upheld
License Refusal Not Upheld
D Any suspension imposed shall run D concurrent with D consecutive to any existing suspension .
D Any suspension imposed shall be retroactive to:
D Above suspension is not modified
D The above suspension is modified. The licensee shall participate in the MVA's Ignition Interlock Program.
B Above suspension is modified to a restrictive license.
D No action
The Licensee's temporary license was retained by the ALJ at the hearing.
The Licensee's photo driver's license class - (issue date) was retained by the ALJ at the hearing.
Judge from the motor vehicle administration
Pursuant to the Transportation Article of the Annotated Code of Maryland, §10-209: the Administrative Procedure Act, State Government Article, §10-201 et seq., and the B Rules of the Maryland Rules of Procedure, any aggrieved party to a hearing may appeal from a decision or order of the Administration as follows:
If the matter concerns the license of a party to drive and the party is a resident of this State, to the Circuit
Court for the county in which the party resides;
If the party is a non-resident motorist, to the Circuit Court for the county in which the party was convicted of
the violation to which the matter relates; and
If not otherwise provided in this section or elsewhere in the Maryland Law, to the Circuit Court for Anne
An appeal must be filed within thirty (30) days from the date of the decision or order.
drivers license number DOT-APS-case number
LICENSE RESTRICTION ORDER
Suspension of the license has been modified to a restrictive license for: 45 DAYS
Alcoholic prevention or treatment program purposes
Employment and educational purposes
Obtaining health care treatment pursuant to Md. Code Ann., Transp. § 16-205.1 (n).
I find of interest, that even if your case is expunged in the state of Maryland, the prosecution may bring charges against you in the case that has been expunged. Mora v. State, 720 A.2d 934, 123 Md.App. 699 (Md. App., 1998).
If you have particular questions you can contact me directly.
table of contents
What Is Expungement? 1
When Can I File For Expungement? 2
Case Information 3
Petitions For Expungement 3
What Do the Dispositions Mean and How Do They Affect Expungements? 4
When Are You Not Entitled To An Expungement? 5
Cost Of Expungement 6
Juvenile Records 7
How Do I File For Expungement? 7
How Long Does It Take? 7
Certificates of Compliance 8
Expungement Order 9
Must I Disclose Expunged Charges? 9
Amended Petitions 10
CJIS Related Questions 10
Helpful Suggestions 11
Expungement Agency Contact Information 12
This guide is designed to give you pertinent information concerning the removal of criminal records from public access in Maryland and to help you understand the process of filing for expungement.
what is expungement?
Expungement is the removal of records from public inspection. In Maryland, records ma$ be expunged from 1) Motor Vehicle Administration files, 2) police files and 3) court and police files. Each process removes very specific files and must be done through the proper agency. You must apply for expungement of each arrest based on the date of arrest and according to the disposition. No process expunges the records from all agencies.
motor vehicle administration (MVA)
Many motor vehicle records are automatically expunged after 3 years; other records may be manually expunged, depending upon the offense for which you were convicted and the length of time since your last conviction. For additional information, contact the MVA.
police records: when No charges were filed
Effective 10/1/2007, if you were detained by a police agency, but were released without being charged, records will automatically be expunged within 60 days after release.
Prior to 10/1/2007, if you were detained by a police agency, but were released without being charged, records may exist in police files. To get these records expunged, contact the arresting agency and request an Investigative Release Form. Ask the agency«^ for specific information on how its process works. Expungement must be requested within 8 years of incident date.
court/police records may exist:
If you have been arrested and charged with a crime, including a traffic violation for which a term of imprisonment may be imposed.
If you have been charged with a civil offense or infraction as a substitute for a criminal charge.
Court records are not automatically expunged. To remove these records, you may file a petition for expungement with the court if:
You were found not guilty.
· You were found guilty of certain nuisance crimes. The charge was dismissed.
· The charge resulted in probation before judgment (excluding charges of driving while under the influence or driving while impaired).
The State's Attorney did not prosecute (nolle prosequi) your charge.
· The Court indefinitely postponed your case (stet).
Your case was compromised (settled).
You were convicted of only one non-violent criminal act and you were granted a full and unconditional pardon by the Governor.
when can I file for expungement?
The waiting period required for filing a petition for expungement varies, depending on how your case was concluded and whether you file a General Waiver and Release (Form CC-DC/CR 78).
If your petition is based on an acquittal, a nolle prosequi, or a dismissal, you may file a petition three years after the disposition, or within three years if you file a General Waiver and Release of all legal claims and lawsuits arising from the charge.
If your petition is based on a probation before judgment, you may file:
·:· 3 or more years after probation was granted or discharged, whichever is later.(I find this piece of advice confusing but I believe that you can file for the expungement immediately, I would expect that the state's attorney's office would oppose the expungement because not enough time has passed and that would likely generate a hearing before the judge wherein you would need to show good cause why you should be allowed to have your expungement early).
If your petition is based on a guilty verdict for a specified nuisance crime, you may
* 3 or more years after the conviction or satisfactory completion of the sentence, including probation, whichever is later.
If your petition is based on a stet or a compromise, you may not file within 3 years of your cases's disposition.
You may also petition the court for expungement at any time on a showing of good cause.
general waiver and release
This form releases all persons and agencies from any claims regarding the arrest or detention. It must be filed in order to process an expungement, if it is less than 3 years from the time your case was concluded. Check with the clerk in the court where you file to see if the General Waiver form requires a witness.
Who is the complainant?
The person who, under oath, signs a statement establishing reasonable grounds to believe that some named person has committed a crime. In criminal cases, the complainant is usually a police officer or a citizen.
How can I find the name of the complainant if I don't remember?
The Maryland Judicial Case Search website -- http://casesearch.courts.state.md.us/ may be helpful for finding case information. Not all information and/or parties involved may be available online.
What is my tracking number?
The assigned 12-digit number that identifies the defendant and incident throughout criminal proceedings.
What is the disposition?
The verdict given by the Judge at the conclusion of the trial/sentencing.
petitions for expungement
Can I include all my case numbers on the petition?
A Petition for Expungement may include only the case numbers for one unit (see below for definition of "unit"), which may include both criminal and traffic charges. If the unit included both criminal and traffic charges list all the case/citation numbers that apply to that unit.
Can the clerk help me complete the forms?
No. The clerk may provide public information from the computer and/or case file, such as case number(s), date of service, service agency, and disposition of charges.
What do you mean by a "unit"?
According to Criminal Procedure §10-107, a unit consists of two or more charges, other than minor traffic violations, arising from the same incident, transaction, or set of facts.
Do I need an attorney?
Under Maryland law, you may represent yourself, pro se, in this matter.
Does my expungement paperwork have to be notarized?
what Do the dispositions mean and How Do they affect expungements?
A ruling by a judge that all or some of the charges in a case are terminated (thrown out), without further evidence or testimony.
not guilty (acquittal)
A judgment by a jury or judge that a defendant is not guilty of a crime as charged. Under Maryland Law, not guilty dispositions are not automatically expunged. You must file a Petition for Expungement of Records (Form CC-DC/CR 72) if you want this removed from public databases.
If a General Waiver is submitted with the petition, you may petition the court to expunge a case that includes either a not guilty or judgment of acquittal immediately after the disposition. If no General Waiver is submitted, the petition can be filed three years after entry of disposition.
probation before judgment (PBJ)
Guilty verdict was stricken and probation was assigned; not a conviction if probation was
· Under Maryland Law, Criminal Procedure § 10-105(c)(2)(I)(II), a PBJ can only
be expunged after probation is discharged or 3 years after probation was granted,
whichever date is later.
If your probation was discharged in less than three years, you may file a motion for a good cause exception and see if the court will grant it.
A conditional stay of all further proceedings in a case. On motion of the State's Attorney, the court may indefinitely postpone trial of a charge by marking the charge "stet" on the docket.
Under Maryland Law, Criminal Procedure §10-105 the waiting period to remove a
stet case is three years after the date of the judgment
If it has been less than three years, you may file a motion for a good cause exception and see if the court will grant it.
A verdict convicting the defendant of the crime charged.
· Under Maryland Law, Criminal Procedure §10-105, except for a limited number of
minor common nuisance crimes, guilty convictions are not eligible for expungement.
· According to Criminal Procedure §10-107, if a person is not entitled to expungement
on one charge or conviction in a unit, the person is not entitled to expungement of any
other charge or conviction in the unit.
nolle prosequi (Nol pros)
A formal motion by a State's Attorney, indicating that the charge(s) will not be prosecuted.
· Under Maryland Law, nolle prosequi dispositions are not automatically expunged.
You must file a Petition for Expungement of Records if you want this removed from
· If the case was nolle prosequi and you were not served, you must still file for
expungement. However, if a judge advises in court that such a case be expunged, a
petition is not needed and there is no filing fee.
NOLO CON TENURE (nolo)
A plea in a criminal action having the same legal effect as a plea of guilty and on which the defendant may be sentenced.
when are You not entitled To an expungement?
You are not entitled to an expungement:
In any case where a guilty finding was entered (except for certain nuisance crimes under Criminal Procedure §10-105(a)(9)).
If you received a probation before judgment, a nolle prosequi, a stet, a pardon or conviction of a specified public nuisance crime, AND since then you have been convicted of another crime other than a minor traffic violation or are a defendant in a pending criminal proceeding.
In civil cases, unless you were charged with a civil offense as a substitute for a criminal charge.
In domestic violence, cases are a civil proceeding, which are not covered under the expungement statute.
· Of a disposition of probation before judgment or guilty for a violation of driving
under the influence (DUI) or driving while impaired (DWI) (Transportation Article
§21-902, Criminal Law Article §2-503, 2-504, 2-505, or 2-506, or former Article
· If one charge in the unit is not eligible for expungement, the other charges in the unit
are not eligible for expungement no matter what type of charges they are (criminal,
traffic, boating violation, light-rail violation, etc.).
· If you were charged with minor traffic offenses only. The Court does not have
authority to expunge minor traffic offenses. Only the MVA can expunge minor traffic
A pardon is an act of clemency in which the Governor, by order, absolves the grantee from the guilt of the grantee's criminal acts and exempts the grantee from any penalties imposed by law for those criminal acts. If you want to clear your record of a guilty charge you must call the Parole Commissioner's Office to request a packet for a pardon. (Exception: A guilty verdict for certain public nuisance crimes under Criminal Procedure §10-105(a)(9) may be expungeable.) For more information regarding pardons contact the Parole Commission directly:
6776 Reisterstown Road
Baltimore, MD 21215
1-877-241-5428 (toll free) or 410-585-3200
cost of expungement
Ask the clerk about the fee or refer to the court's online fee/cost schedule. The filing fee is nonrefundable, even if denied. The fee is for each case (not for each charge related within a unit of the case.) If you cannot afford the fee, you may request that the court waive the filing fee. There is no charge to expunge a verdict of Not Guilty (Acquittal).
Juvenile records are sealed and should not appear in criminal records. However, you may file for expungement of the record if the original charge was transferred to the juvenile court. Contact the Juvenile Division of the circuit court for more information.
How Do I file for expungement?
1. Obtain a petition for Expungement of Police and Court Records (Form CC-DC/CR 72)
and the General Wavier and Release (Form CC-DC/CR 78), if necessary, at any District or
circuit court. (Forms available online at: www.mdcourts.gov)
2. You will need to know the case number, date that you were arrested, summoned, or
cited; the law enforcement agency that took the action; the offense with which you were
charged; and the date your case was disposed.
3. Complete the forms and file with the clerk. Include an extra copy for the State's
Attorney and each law enforcement agency named in the petition. You must file in the
court in which your case was concluded.
4. Pay the nonrefundable filing fees.
How long does it take?
The process should take approximately 90 days from the time you file your petition, unless there is an objection or appeal. If the State's Attorney and/or the law enforcement agencies object to your petition, the court shall hold a hearing and will notify you to attend.
If the State's Attorney and the law enforcement agencies do not object within 30 days of receiving the petition, the court shall pass an order requiring the expungement of all police and court records about the charges. The court will notify you that your petition has been granted or denied.
The Expungement process cannot be expedited or "fast tracked" through the system. All cases are handled in exactly the same manner. There are no exceptions.
After the court orders are sent to each required agency, each agency has 60 days from receipt to comply with the court order. You will receive a Certificate of Compliance in the mail to notify you that your expungement has been completed.
Until you receive your Certificate of Compliance from each agency listed on your petition, do not assume that your records have been expunged.
Can an expungement be denied?
Who do I call if I have a question about an expungement?
Call the clerk's office where you filed the expungement. The clerks can provide information about the court process, but cannot give legal advice. The clerk may not be able to provide specific information as to where in the process your expungement stands.
What can I do after the petition is denied by the Judge at the hearing?
You may file an appeal within 30 days of the denial.
How will I be notified about the answer to the petition?
The Petitioner or Attorney, whoever filed the petition, may receive an answer from the State's Attorney in the mail 30 days from the receipt of the petition. In some jurisdictions, the State's Attorney may not answer at all. According to the Maryland Rules, a failure to file an answer constitutes agreement.
Why does the expungement process take so long?
Maryland expungement laws (Criminal Procedure §10-101 to 10-109) set specific time requirements for the various phases of an expungement. The entire process will take approximately 90 days from the date of filing.
certificates of compliance
What can I do if I do not receive a copy of all the certificates of compliance?
First, contact the agency or agencies directly that you have not received certificates from. Then, contact the Court to see if they have received certificates from those agencies. As a last resort, file a lawsuit against the state agency if they disseminate the information. The clerk can provide information about the court process, however you may want to seek the assistance of a lawyer before filing a lawsuit.
I just received a copy of the court order and certificate of compliance from the courts. Does this mean I am clear to apply for a job or adopt?
No, this is only your certification that the court has complied with the order and notified the parties on the form. Until you have received a compliance letter from each of the listed parties on the court order, do not assume that your record has been cleared of the petitioned charge.
How long should I keep my copy of the Expungement Order?
Keep these documents FOREVER.
What does it mean when I receive an Order for Expungement of Police and Court Records and Certificate of Compliance?
It means that a particular agency has complied with the expungement order.
Will the public still be able to view records on case search after the record is expunged?
If my record is expunged, can I come in again and get a copy for immigration if I lost all the paperwork?
You can petition the Court to have the case reopened. However, three years after the expungement has been granted, the file is shredded.
After the case is expunged, could immigration obtain copies of the expungement documentation and case folder?
Immigration cannot obtain this information from any agency that has filed a Certificate of Compliance once the case has been expunged.
Why does my record still show on other databases after it has been expunged from the Court's system?
Each entity (courts, arresting agency, parole and probation, Criminal Justice Information Services (CJIS), Federal Bureau of Investigation (FBI), etc.) has its own stand alone database for which it is responsible. Since these databases are not connected, each entity will expunge their own database. Once CJIS expunges the record in Maryland's Central Repository, which is done within 60 days of the court order, the FBI will be notified to expunge their database.
must 1 disclose expunged charges?
According to Maryland law, Criminal Procedure §10-109:
Disclosure of expunged information about civil citations and criminal charges in an application,
interview, or other means may not be required of a person who applies for employment, etc.
A person need not refer to or give information concerning an expunged charge when answering a question concerning a criminal charge or civil citation that did not result in a conviction or that the Governor pardoned.
Refusal by a person to disclose information about criminal charges or civil citations that have been expunged may not be the sole reason for refusal to hire the person.
What are the procedures for filing an expungement in circuit court (or other agencies) after District Court has received/processed the paperwork?
Per Rule 4-506, the application, petition, or answer may be amended by the Petitioner in the manner prescribed by Rule 2-341.
Unless the court orders otherwise, a party filing an amended pleading must file a comparison copy of the amended pleading. Language that is stricken should by lined through or enclosed in brackets (ex: old language or [old language]). The new language should be underlined or in boldfaced type (ex: new language or new language). The clerk will resubmit the amended petition to the agency.
CJIS related questions
How long will it take before it will not show on a record check?
If the employer does the record check through the Criminal Justice Information Systems - Central Repository (CJIS-CR) system, it will not show on the record after CJIS has complied with the order and finished processing the expungement.
Once my case is expunged, will it still be on my background check?
No, once CJIS has complied with the order and finished processing the expungement it will not show on your record.
If I have received my Certificates of Compliance, why does the FBI still show that I have a record?
The Courts do not process expungements for the FBI's system. Once CJIS expunges the record in Maryland's Central Repository, which is done within 60 days of the court order, the FBI will be notified to expunge their database.
Why is my case still showing up in CJIS after four months?
CJIS handles expungements for the entire State of Maryland. The volume of expungement requests that CJIS processes is much greater than that of individual jurisdictions, and expungements are processed in the order received.
I recently had a background check done through my job and the charge that I had expunged still appears. What do I do?
If the record check was not processed through the State of Maryland, you must go back to your company and have them do a fingerprint supported check through CJIS to receive an accurate record check.
The following suggestions will help you succeed with an expungement:
· Make sure that you have completed the expungement petition completely and
accurately with your full name, including any alias that you used at the time of arrest,
date of birth, and current address.
· Have a background check done through CJIS-CR if you are not sure of dates of arrest
and occurrences. This will also allow you to see what is on your criminal history.
· After the expungement process is completed and all Certificates of Compliance
have been received, have a background check done. This is to double check that the
expungement was done as well as check for any other occurrences that may appear.
· Ensure that you have filed at the appropriate time and not too soon. Filing too soon will
cause the expungement to be denied. The fee is nonrefundable.
· Make sure you are filing in the appropriate court jurisdiction (District or circuit)
because filing in the wrong jurisdiction can delay your case from being expunged from
the State of Maryland in a timely manner. If your case was appealed to a higher court,
that is where you need to file.
· Make sure you keep copies of all the expungement documents and the expungement
order since they may be needed for future reference. Once the case has been expunged,
all documents pertaining to the case will be destroyed.11
EXPUNGEMENT AGENCY CONTACT INFORMATION
Circuit Court: located in every county. For more information see:
http: //mdcourts. gov/circuit/index .html
District Court: For more information see:
Motor Vehicle Administration (MVA): For more information call
1-800-950-lMVAorsee: http ://www.mva. state.md.us
Criminal Justice Information System (CJIS) of the Department of Public Safety & Correctional Services collects and maintains criminal records. For information, call
Toll free 1-888-795-0011 or see: http://www.dpscs.state.md.us/aboutdpscs
Individuals can check their own criminal history by visiting their local police barracks to request an individual review. You will be fingerprinted and your fingerprint identification will be sent to the:
CJIS Central Repository (CJIS-CR) P.O. Box 32708
Pikesville, MD 21282-2708
Once received, CJIS will then process the results and mail them back to you.
If you have further questions about the expungement law, please see Criminal Procedure Article §10-101 to 10-109 of the Annotated Code of Maryland. You may wish to consult an attorney to determine how the law applies to your situation.
For more information, visit the Judiciary website at: http://www.mdcourts.gov
Wednesday, March 16, 2011
Washington DC has many security cameras throughout the city. This particular intersection had such a security camera. The information is not kept indefinitely, in fact the recorded information is only for a few days and then recycled. My client did a freedom of information act through the early Metropolitan Police Department and was able to get the footage of the accident.
The camera was mounted at the intersection. The camera pans around and shows various parts of the intersection. The camera clearly showed the car making a left turn directly in front of my client and my client having less than a second to react. He collides violently with the car. The camera continues to pan showing the direction where my client came from. It shows many many cars continuing through the intersection clearly indicating that he had a green light. The camera continues to pan and shows the traffic light in the intersection showing that the light was green. It also shows how many seconds were left because it picks up the walk don't walk signal.
This evidence is overwhelming and short-lived. Contacting the Metropolitan Police Department and requesting freedom of information is quick and cheap. You should just Google Metropolitan Police Department freedom of information act and it will take you directly to their website and they are helpful.
Thursday, March 3, 2011
Apparently the bicyclist had a bit of a history. When I ran his name on the criminal database search available in Maryland, he came back with two pages of criminal charges. He was apparently incensed that this lady did not suffer criminal charges. He contacted the officer many times requesting that he issue a citation and the officer denied that request. He pulled rank and went to the officer's Sgt. who also denied the request. He went to the lieutenant who capitulated and the officer wrote citations against my client.
My client was charged with the following:
1. Failure to yield to a pedestrian in a crosswalk
2. Failure to stop after an accident
These are somewhat serious charges. They carry jail time and of course points on your driving license.
The case was called for trial and everyone showed up. I told the prosecutor not to drop the charges because I was concerned that the bicyclist would go after this prosecutor going all the way up to John McCarthy, the state's attorney for Montgomery County. At trial the state proved that the victim was riding a bicycle in the crosswalk when he was struck. They also proved that my client remained at least 3 min. and probably more than 5 min. stopped at the scene after the accident.
At the close of the state's case I argued to the judge that a bicyclist is not a pedestrian and that is clearly defined in the Maryland code. A pedestrian is somebody who is "afoot" (is a bicyclist somebody who is "abike"?) The judge threw out that charge immediately. I further argued that the state proved in their case that my client did stop after the accident. Under the statute it requires the driver to stop. It does not say how long the driver needs to stop. Arguably, one second is enough. Clearly at least 3 min. is enough. Again the judge threw out the charge.
Not surprisingly, the bicyclist began haranguing the prosecutor and almost needed to be escorted out of the courthouse by the bailiffs.
All that being said, I do not condone driving away after an accident. My client should have been charged with hit and run and failing to provide proper identification and failing to provide assistance. That would've made the case tougher. For whatever reason, she was not charged with the correct crimes and she is acquitted as she should be. If you have an accident, you should remain at the scene, exchange information, give aid and assistance and just be a decent human being.