Wednesday, November 20, 2019

Converting Arrest Warrants to Criminal Summons in Montgomery County

A question which I receive in Montgomery County is whether an arrest warrant can be quashed or converted to a summons. The general answer in Montgomery County is in the negative. I was successful in converting an arrest warrant in Prince Georges County. In that case the prosecutor consented to the request.

Below is directly from our administrative judge:

It is the position of our District Court that it does not have authority to convert an unserved arrest warrant to a criminal summons. District Court administrative regulation XV authorizes judges to recall bench warrants and failure to appear warrants only. Arrest warrants issued by commissioners must be served on the defendant.

A possible exception is that the state's attorney can intervene and take action prior to service of a warrant on a defendant.

Friday, November 15, 2019

Addressing uninsured motor vehicle claims in Maryland

§ 10-921. Burden of proof in uninsured motorist coverage actions.
(a) In general. -- In an action against an insurer or the Maryland Automobile Insurance Fund under a policy providing uninsured motor vehicle liability coverage, the person asserting the uninsured status of a motor vehicle shall have the burden to prove that status.

(b) Vehicles registered in the State. -- For a motor vehicle registered in the State on the date of the occurrence out of which the cause of action arose, the burden of proof shall be deemed satisfied when the person asserting the uninsured status of the motor vehicle introduces:
(1) A certified copy of the official record of the Motor Vehicle Administration for that motor vehicle indicating the absence of a record that the motor vehicle was covered by the security required by § 17-104 of the Transportation Article on the date of the occurrence out of which the cause of action arose; or

(2) A denial of coverage based on the absence of an in-force policy of insurance covering the vehicle on the date of the occurrence out of which the cause of action arose by the insurer that has been identified as the insurer of the motor vehicle:
(i) By the Motor Vehicle Administration;

(ii) In writing, if any, by the driver or owner of the motor vehicle; and

(iii) In a report, if any, prepared by an officer of a federal, state, county, or municipal law enforcement agency who investigated the occurrence out of which the cause of action arose.

(c) Vehicles registered out-of-state. -- For a motor vehicle registered outside the State on the date of the occurrence out of which the cause of action arose, the burden of proof shall be deemed satisfied when the person asserting the uninsured status of the motor vehicle introduces:
(1) A certified copy of the official records of the governmental unit, if any, that maintains records of insurance coverage for motor vehicles registered in that state indicating the absence of a record that the motor vehicle was covered by insurance on the date of the occurrence out of which the cause of action arose; or

(2) A denial of coverage based on the absence of an in-force policy of insurance covering the vehicle on the date of the occurrence out of which the cause of action arose by the insurer that has been identified as the insurer of the vehicle:
(i) By the governmental unit, if any, that maintains records of whether motor vehicles in the state are insured;

(ii) In writing, if any, by the driver or owner of the motor vehicle; and

(iii) In a report, if any, prepared by an officer of a federal, state, county, or municipal law enforcement agency who investigated the occurrence out of which the cause of action arose.

(d) Satisfaction of burden of proof. -- If a person satisfies the burden of proof under subsection (b) or (c) of this section, the finder of fact shall find the motor vehicle at issue to be uninsured, unless an adverse party establishes by a preponderance of the evidence that the motor vehicle or the driver of the motor vehicle was covered by a valid, enforceable motor vehicle liability insurance policy, bond, or security that provides coverage for the occurrence out of which the cause of action arose.


 MD Code Cts. & Jud. Proc. 10-921 Burden of proof in uninsured motorist coverage actions (Maryland Code (2019 Edition))

Sunday, November 10, 2019

Whether a Defendant Serving a Sentence for a Crime of Violence Is Entitled to Immediate Relief under Health General 8-505?

As indicated below, Maryland provides that at almost any time a defendant may be evaluated to determine whether because of drug or alcohol abuse the defendant is in need and may benefit from treatment.

Many times someone will demand treatment in lieu of incarceration based on the statute. There is a strong body of evidence that someone with a drug or alcohol problem is not cured simply by abstinence from the drug or alcohol be it months or years. They come in an addict and they leave an addict without treatment. Often times the evaluation and subsequent treatment can help lead to a healthier, safer and crime free life.

One of the ways in which Maryland categorizes crime is whether it is a crime of violence or not a crime of violence. The definition of crime of violence is more broad than one might think. The problem if one is convicted of a crime of violence is that relief under Health Gen. 8-505 is not available until after the defendant is first parole eligible.

In Maryland, if a person is convicted of a crime of violence, parole eligibility begins at 50% of the actual sentence. In other words, if someone receives 25 years for a 1st° assault, they are not parole eligible until 12 1/2 years and consequently not eligible for consideration of 8-505 until 12 1/2 years. The statute below makes this clear in my opinion.


§ 8-505. Evaluation of criminal defendants
(a) In general. -- (1) (i) Except as provided in paragraph (2) of this subsection, before or during a criminal trial, before or after sentencing, or before or during a term of probation, the court may order the Department to evaluate a defendant to determine whether, by reason of drug or alcohol abuse, the defendant is in need of and may benefit from treatment if:
1. It appears to the court that the defendant has an alcohol or drug abuse problem; or

2. The defendant alleges an alcohol or drug dependency.
(ii) A court shall set and may change the conditions under which an examination is to be conducted under this section.

(iii) The Department shall ensure that each evaluation under this section is conducted in accordance with regulations adopted by the Department.

(2)
(i) If a defendant is serving a sentence for a crime of violence, as defined in § 14-101 of the Criminal Law Article, a court may not order the Department to evaluate a defendant under this section until the defendant is eligible for parole.

(ii) Nothing in this paragraph may be construed to prohibit a defendant who is serving a sentence for a crime of violence, as defined in § 14-101 of the Criminal Law Article from participating in any other treatment program or receiving treatment under the supervision of the Department under any other provision of law.

(b) Outpatient examinations. -- On consideration of the nature of the charge, the court:
(1) May require or permit an examination to be conducted on an outpatient basis; and

(2) If an outpatient examination is authorized, shall set bail for the defendant or authorize the release of the defendant on personal recognizance.

(c) Custodial examinations; detention and examination; habeas corpus. -- (1) If a defendant is to be held in custody for examination under this section:
(i) The defendant may be confined in a detention facility until the Department is able to conduct the examination; or

(ii) The court may order confinement of the defendant in a medical wing or other isolated and secure unit of a detention facility, if the court finds it appropriate for the health or safety of the defendant.

(2) (i) If the court finds that, because of the apparent severity of the alcohol or drug dependency or other medical or psychiatric complications, a defendant in custody would be endangered by confinement in a jail, the court may order the Department to either:
1. Place the defendant, pending examination, in an appropriate health care facility; or

2. Immediately conduct an evaluation of the defendant.
(ii) Unless the Department retains a defendant, the defendant shall be promptly returned to the court after an examination.

(iii) A defendant who is detained for an examination under this section may question at any time the legality of the detention by a petition for a writ of habeas corpus.

(d) Duties of evaluator. -- (1) If a court orders an evaluation under this section, the evaluator shall:
(i) Conduct an evaluation of the defendant; and

(ii) Submit a complete report of the evaluation within 7 days to the:
1. Court;

2. Department; and

3. Defendant or the defendant's attorney.

(2) On good cause shown, a court may extend the time for an evaluation under this section.

(3) Whenever an evaluator recommends treatment, the evaluator's report shall:
(i) Name a specific program able to immediately provide the recommended treatment; and

(ii) Give an actual or estimated date when the program can begin treatment of the defendant.

(e) Department to provide services. --
(1) The Department shall immediately provide the services required by this section.

(2) A designee of the Department may carry out any of its duties under this section.

(f) Administration to perform evaluations. -- Evaluations performed in facilities operated by the Department of Public Safety and Correctional Services shall be conducted by the Administration.
MD Code Health-Gen. 8-505 Evaluation of criminal defendants (Maryland Code (2019 Edition))

Credit for Time Spent in Custody

It is not unusual for a criminal defendant to be held in custody prior to trial on several different cases. For example a defendant might be convicted, receive a suspended sentence and be placed on probation. While on probation the defendant commits a new crime and is arrested and held without bond.

At some point the defendant is convicted for the new crime. The court imposes incarceration. Because of the conviction for the new crime that violates the defendant's probation and the defendant is incarcerated for the original crime.

Must each sentencing judge give credit for time served in custody? I believe that the criminal procedure article of Maryland would answer that question in the negative. I think the correct answer is that each sentencing judge may give credit for time served in custody.

What do you think?

§ 6-218. Credit against sentence for time spent in custody
(a) Scope of section. -- This section does not apply to a parolee who is returned to the custody of the Division of Correction because of a subsequent crime and is confined before being sentenced for the subsequent crime.

(b) In general. -- (1) A defendant who is convicted and sentenced shall receive credit against and a reduction of the term of a definite or life sentence, or the minimum and maximum terms of an indeterminate sentence, for all time spent in the custody of a correctional facility, hospital, facility for persons with mental disorders, or other unit because of:
(i) the charge for which the sentence is imposed; or

(ii) the conduct on which the charge is based.

(2) If a defendant is in custody because of a charge that results in a dismissal or acquittal, the time that would have been credited if a sentence had been imposed shall be credited against any sentence that is based on a charge for which a warrant or commitment was filed during that custody.

(3) In a case other than a case described in paragraph (2) of this subsection, the sentencing court may apply credit against a sentence for time spent in custody for another charge or crime.

(c) Credit when prior sentence set aside. -- A defendant whose sentence is set aside because of a direct or collateral attack and who is reprosecuted or resentenced for the same crime or for another crime based on the same transaction shall receive credit against and a reduction of the term of a definite or life sentence, or the minimum and maximum terms of an indeterminate sentence, for all time spent in custody under the prior sentence, including credit applied against the prior sentence in accordance with subsection (b) of this section.

(d) Credit when one of multiple sentences set aside. -- A defendant who is serving multiple sentences, one of which is set aside as the result of a direct or collateral attack, shall receive credit against and a reduction of the remaining term of a definite or life sentence, or the remaining minimum and maximum terms of an indeterminate sentence, for all time spent in custody under the sentence set aside, including credit applied against the sentence set aside in accordance with subsection (b) of this section.

(e) Credit awarded at sentencing. --
(1) The court shall award the credit required by this section at the time of sentencing.

(2) After having communicated with the parties, the court shall tell the defendant and shall state on the record the amount of the credit and the facts on which the credit is based. MD Code Crim. Proc. 6-218 Credit against sentence for time spent in custody (Maryland Code (2019 Edition))

Friday, November 8, 2019

Immigration consequences of alcohol related offenses in Maryland

This is taken directly from two exceptional Maryland attorneys, Nadine Whetstein, Esq. and Maureen Sweeney, Esq.  I put it here as a public service was great thanks for their research and writing.

IMMIGRATION IMPACTS OF DUI ALCOHOL CONVICTIONS FOR OUR NONCITIZEN CLIENTS
FOR ALL NONCITIZENS: 
Immigration authorities do not distinguish between alcohol-related convictions for driving under the influence (DUI) and driving while impaired (DWI) or other alcohol-related driving offenses.2 That is, it is not necessarily helpful to have a DWI rather than DUI conviction. In this advisory, both are referred to as DUI. 
Maryland TA 21-902 includes both driving and attempting to drive. Similarly, under immigration case law, attempt convictions have the same impact as convictions for the underlying offense. 
Receiving a PBJ will not alter any of the outcomes described here. A PBJ is a conviction for immigration purposes (unless there is absolutely no penalty, punishment, or restraint on liberty. Probation is a restraint on liberty. Court fines are a punishment). 
A sentence of less than one year for a DUI conviction does not make it “safe.” 
A DUI charge – even short of a conviction – is “a significant adverse consideration” for eligibility to bond out of ICE custody, the Board of Immigration Appeals (BIA) held.3 The BIA said immigration judges should set a monetary bond only if the detainee first establishes that he or she is not a “danger to the community.” “Drunk driving is an extremely dangerous crime,” the BIA said. A deportation case can take months or years to adjudicate, so this may be a significant consideration for your client. 
If available, driving without a license (DWOL) would be a better plea option, as would be reckless or negligent driving or other non-alcohol related conviction. The client still might need to explain the incident to an immigration judge or official, and provide evidence of successful completion of probation and any treatment. 
1 © Maryland OPD 11-6-2019. This advisory discusses Maryland alcohol-related convictions under TA 21- 902(a) and (b). Convictions under 21-902(c) and (d), regarding drugs, potentially are even more problematic. This advisory is not intended to be legal advice. Check for updates: A.G. and BIA decisions can be challenged by litigants and rejected by federal courts! The author of this advisory is Nadine Wettstein, who is grateful for as- always helpful comments and suggestions by Prof. Maureen Sweeney of the University of Maryland. 2 Matter of Castillo-Perez, 27 I&N Dec. 664, 665, n.1 (AG October 25, 2019). 3 Matter of Siniauskas, 27 I&N Dec. 207, 208, 209, 210 (BIA 2018). The BIA is the immigration appellate board for the entire United States. 
BY CLIENT’S STATUS: A DUI conviction affects noncitizens differently depending upon their immigration status. Immigration advice to our clients must be accurate. To provide accurate advice about the immigration impact, you must know the client’s current immigration status. 
Undocumented person (entered U.S. without inspection, or overstayed a visa) An undocumented person includes someone who entered the United States without inspection, and someone who initially entered the U.S. with a visa but stayed longer than permitted. An undocumented person is deportable regardless of a conviction. A DUI conviction will make her even more of an ICE enforcement priority and will raise her profile, especially if her fingerprints were taken when she was arrested. Fingerprints automatically go to ICE. 
Some undocumented people may have a defense to deportation called “10-year cancellation of removal.” To qualify, the applicant must prove he has lived in the United States for at least 10 years and has had “good moral character” for all that time. One DUI conviction will not disqualify him from this defense but it will be a very negative factor. He might have to show that this one incident was an aberration and that he acted promptly and successfully to address any alcohol issues. He will have to provide information about the charges and disposition and certified copies. 
Under current agency case law, having two DUI convictions during the 10-year statutory period creates a very strong presumption that the person lacks good moral character and is thus disqualified from cancellation of removal.4 Proof of rehabilitation alone will not be enough to overcome the presumption. He also will have to show that his positive attributes outweigh the negatives, and that the DUIs were an aberration in a record that otherwise shows entirely good character. 
An applicant for 10-year cancellation of removal also cannot have spent 180 days or more in custody as a result of any and all convictions including DWOL and other traffic matters. This refers to the actual time spent in custody including before trial if the person is convicted. It does not include back-up time. 
Applicant for asylum or withholding of removal, or asylee One or more DUI convictions will not disqualify the applicant for asylum, however it will be a negative discretionary factor that must be overcome by positive factors. A related fear-based defense to deportation, withholding of removal, is not discretionary so should not be denied based on DUI conviction(s). One or more DUI convictions will not cause an asylee to lose asylee status. 
Asylee or other person applying for lawful permanent resident status (“green card”) After one year as an asylee, the asylee can apply to “adjust status” to become a lawful permanent resident (LPR). Other people adjust status from Special Immigration Juvenile; from a nonimmigrant visa; from a visa overstay; or other situations. Immigration officials have discretion to deny adjustment to LPR status. If the person has had DUI conviction(s), officials might deny adjustment on that basis. 
4 Matter of Castillo-Perez, 27 I&N Dec. 664 (AG October 25, 2019). Affected individuals likely will challenge this decision in federal courts across the country, so it is not necessarily the final word. 
Students and others in the United States on a temporary visa The DUI conviction(s) itself should not create a criminal basis for deportation. However, if she spends so much time in jail that it interferes with the reason she was admitted to the United States, she could be violating her status. E.g., if the student cannot attend school or drops below the required number of credit hours, she may have violated the terms of her admission and risks deportation. 
Also, the U.S. State Department says that a DUI indicates a possible visa ineligibility for a “physical or mental disorder” with associated harmful behavior that is likely to pose a threat to the property, safety or welfare of the person or others. This means that just based on the person’s arrest (and more likely if he is convicted), the visa could be revoked even while he is in the United States He will not necessarily be deported at that point, but if he leaves United States, he will have to apply for a new visa to return. He may have to go to an approved medical doctor to confirm that he does not have a physical or mental disorder related to alcohol that would cause a safety risk to the him or others. 
Also, if the person is sentenced to an aggregated total of five years or more – including suspended or backup time – for two or more convictions of any kind, the person will be inadmissible, that is, not eligible to return to the United States. DUI, DWOL, and all other convictions count for this five-year inadmissibility rule. 
DACA (Deferred Action for Childhood Arrivals): A DACA recipient has a permit that protects her from deportation and allows her to work, attend school, etc. One DUI conviction disqualifies her from DACA. She can expect the DACA permit to be automatically and quickly revoked. She then will revert to being undocumented. ICE may take her into custody. The conviction will be a negative discretionary and/ or good moral character factor in any applications for bond or defenses to deportation. 
TPS (Temporary Protected Status): TPS still is in effect and many clients have a valid TPS work permit that protects them from deportation and allows them to work with authorization. However, any two convictions for any offense that carries a potential sentence of at least five days of jail time will disqualify the person from TPS. 
A DUI conviction counts as one conviction for TPS. If a client has a prior conviction for any jailable offense – including a prior DWOL – a new DUI conviction, or any second conviction for an offense carrying at least five days of jail time, disqualifies him from TPS. His TPS permit could be revoked and he will revert to being undocumented. ICE may take him into custody. The conviction will be a negative factor in any applications for bond or defenses to deportation. 
Lawful permanent residents (LPR or “green card”) 
Not ground for deportation Some good news! For an LPR, Maryland DUI alcohol convictions – even multiple such convictions – do not make him deportable. A DUI conviction is not an aggravated felony or a crime involving moral 
turpitude or otherwise a basis for revoking his status or causing his deportation (Caution: DUI / drugs, 21-902(c) or (d) could be different result!) Also see below re inadmissibility and naturalization. 
Inadmissibility: re-entering United States after a trip A DUI conviction – especially if there has been more than one – may affect the LPR’s “admissibility,” that is, his ability to return after a trip outside the United States. Among the reasons the government can keep a person out is that that he has “a physical or mental disorder and a history of behavior associated with the disorder ... [that poses] a threat to the property, safety, or welfare ...” of the person seeking admission, or others. Also, an aggregated total of five years’ sentence including suspended time for two or more convictions of any type creates a basis for inadmissibility. Especially if an LPR has more than one DUI or any other conviction, he should be cautious about leaving the U.S. even for a short trip, and before leaving should consult with an immigration attorney or immigration nonprofit organization. 
Complicating, delaying application for U.S. citizenship Even one DUI conviction is a very negative discretionary factor when an LPR applies for U.S. citizenship, and may result in delay of approval or denial of her application. She may have to show she successfully acted to address any alcohol issues. She may need to obtain a medical certificate establishing she does not have a medical or physical condition related to alcohol that may make her a danger to herself or others. She will have to provide information about the charges and disposition and certified copies. 
In addition, the LPR must successfully complete probation before her citizenship application will be approved. A cautious approach is for her to wait as much as five years (the usual “good moral character” period) after one DUI conviction before applying.
Two DUI convictions within the statutory period (usually five years) will create a rebuttal presumption that the LPR is not a person of good moral character and should be denied U.S. citizenship.6 Two DUI convictions at any time – even if one or both was more than five years ago – very likely will be considered very negative factors and will have to be overcome with the passage of time and demonstration of clear rehabilitation. 
Whatever the conviction(s), to qualify for U.S. citizenship, the LPR cannot have spent an aggregated total of 180 days or more in custody during the five-year “good moral character” period. This refers to the actual time spent in custody for any and all convictions, including time served before conviction and as a result of any probation violation. It does not include back-up or suspended time or time spent in jail if the person was not later convicted. 
The LPR should consult with an immigration attorney or immigration nonprofit organization before applying for U.S. citizenship. 

5 The five-year period is not a bright line or an “all clear.” The government can and does deny citizenship based on prior conduct. 6 Matter of Castillo-Perez, 27 I&N Dec. 664 (AG October 25, 2019). 

Tuesday, October 29, 2019

Limited Discovery in Breach of Lease?

In a District Court breach of lease case, is limited discovery allowed to? In other words can the landlord find out about the tenant's case prior to trial and vice versa?

Hudson v. Housing Authority, 935 A.2d 395, 402 Md. (2007) seems to indicate that limited discovery in certain types of landlord-tenant cases is allowed. In a footnote it cites the following:

1. Maryland Rule 3-711 (2006), entitled "Landlord-Tenant and Grantee Actions," states:


        Landlord-tenant and grantee actions shall be governed by (1) the procedural provisions of all applicable general statutes, public local laws, and municipal and county ordinances, and (2) unless inconsistent with the applicable laws, the rules of this Title, except that no pretrial discovery under Chapter 400 of this Title shall be permitted in a grantee action, or an action for summary ejectment, wrongful detainer, or distress for rent, or an action involving tenants holding over. Hudson v. Housing Authority, 935 A.2d 395, 402 Md. 18 (Md. App., 2007)

Sunday, October 20, 2019

Right to A Jury Trial in a Criminal Case


It is generally thought that a criminal defendant may only have a jury trial if the crime charged exposes the defendant to more than 90 days of incarceration. While this is true in the District Court of Maryland, it does not apply in the Circuit Court. If the defendant is convicted in the District Court of, for example, driving while impaired, which generally only has a maximum of 60 days of incarceration, and the defendant appeals that matter to the Circuit Court, the defendant is entitled to a jury trial if the defendant so wishes based on the below statute.

Criminal Procedure
§ 6-101. Right to trial by jury
In a criminal case tried in a court of general jurisdiction, there is no right to a jury trial unless:
(1) the crime charged is subject to a penalty of imprisonment; or

(2) there is a constitutional right to a jury trial for the crime.
MD Code Crim. Proc. 6-101 Right to trial by jury (Maryland Code (2019 Edition))

Friday, September 20, 2019

Must the clerk accept a proper filing?

According to statute, generally yes:


§ 2-201. In general
(a) Enumeration. -- The clerk of a court shall:
(1) Have custody of the books, records, and papers of his office;

(2) Make proper legible entries of all proceedings of the court and keep them in well-bound books or other permanent form;

(3) When requested in writing to do so, record any paper filed with his office and required by law to be recorded in the appropriate place, whether or not the title to land is involved;

(4) Unless prohibited by law or order of court, provide copies of records or papers in his custody to a person requesting a copy, under the seal of the court if required;

(5) Issue all writs which may legally be issued from the court;

(6) Deliver a full statement of the costs of a suit to a party requesting a copy;

(7) Receive all books, documents, public letters, and packages sent to him pursuant to law, and carefully dispose of them as the law requires;

(8) Administer an oath;

(9) Replace worn books and records with new ones;

(10) In conjunction with the Motor Vehicle Administrator, establish uniform procedures for reporting both traffic cases and criminal cases involving a motor vehicle in the circuit court to the Motor Vehicle Administration; and

(11) Perform any other duty required by law or rule.

(b) No duty to record until costs paid. -- Unless otherwise provided by law, a clerk is not required to record any paper filed with him or to provide any person with a copy of a paper until the applicable charge has been paid.
MD Code Cts. & Jud. Proc. 2-201 In general (Maryland Code (2019 Edition))

Act of filing papers with court is as ministerial and inflexibly mandatory as any of clerk's responsibilities. Maccray versus Maryland 456  F2d 1 (Fourth Circuit 1972)

There are some restrictions, the item must be in proper form, generally there must be a certificate of service, if these need to be paid, etc. but in general the court must accept documents for filing.

What does "shall" mean?

In Maryland there is some debate as to the term shall. Sometimes I like to equate shall with must. Excerpts from this opinion seem to support that position:

Lovero v. Joelma Da Silva., 200 Md.App. 433, 28 A.3d 43 (Md. App., 2011

It is important to note that in each iteration of the rule the clerk is directed not to “file” any paper or pleading requiring service that does not contain the appropriate proof of service. See Rule 1–323 (“The clerk shall not accept for filing....”); Rule 306 a.2. (“The clerk shall not accept or file ....”); and Rule 1(a)(2) (a paper “shall not be received and filed by the clerk ...”). The use of the word “shall” in a rule means that the conduct proscribed is mandatory. See Rule 1–201(a); 5 Owens v. Prince George's Cnty. Dep't of Soc. Servs., 182 Md.App. 31, 43–44, 957 A.2d 191 (adopting the view that the use of the word “shall” with respect to commands found in the Maryland Rules is mandatory), cert. denied, 406 Md. 746, 962 A.2d 372 (2008); Tranen v. Aziz, 59 Md.App. 528, 534, 476 A.2d 1170 (1984) (explaining that the term “shall” in a rule “is presumed mandatory ..., denoting an imperative obligation inconsistent with the exercise of discretion” (citation and quotations omitted)), aff'd, 304 Md. 605, 500 A.2d 636 (1985). Therefore, it is clear that in adopting Rule 1–323, and its predecessors, the Court of Appeals intended that a

        [28 A.3d 50]

pleading or paper requiring service that did not contain the appropriate proof of service was not to become a part of any court [200 Md.App. 446] proceeding by being “filed” in the court file of such proceeding.
Lovero v. Joelma Da Silva., 200 Md.App. 433, 28 A.3d 43 (Md. App., 2011)


Thursday, July 11, 2019

Diversion of Prosecution in Prince Georges County District Court

Prince Georges County has a diversion system in place for certain categories of crime. There are a variety of factors which affect a defendant's ability to enter into a diversion program. There are many upsides to entering into a diversion program such as certainty of outcome and eventual dismissal of charges with the possibility of expungement. There are some downsides, actual innocence or inability of the state to prove its case could result in an acquittal with no further effort or expense from the defendant. You should consult with an attorney prior to making these important choices. Below is some information obtained from the District Court in Prince Georges County.

COURT ORDERED COMMUNITY SERVICE PROGRAM
You were just advised by the Courts to perform Community Service. Listed below are the office locations and steps you need to take, to successfully satisfy your court ordered requirements:
Upper Marlboro
2927 Brown Station Road Upper Marlboro, MD 20774 Residential House with Blue and White Siding
Monday - Friday
Enrollment Hours
08:30 a.m. - 4:00 p.m.
 301-952-3940/5357 Office

Hyattsville
District 1 County Police Station
5000 Rhode Island Avenue, Suite 104
Hyattsville, MD 20784
Center of the Courtyard


The enrollment process should take less than thirty minutes to complete. The program will take in
consideration your means of transportation, work/school schedule and logistics of your residence. You are
required to pay a $40.00 Administrative Fee in the form of a Money Order or Certified Check. No cash,
personal checks or credit cards will be accepted.
If you are not a resident of Prince Georges County or Washington DC, you may request in person a transfer
through this Community Service Office to your jurisdiction. We will coordinate all paperwork regarding
transferring your case. You are required to pay a $40.00 Administrative Fee in the form of a Money Order or
Certified Check.
For enrollment, you should have the following items:
Copy of your Court Order
Picture ID
Administrative User Fee
4. You must enroll with this program to receive court credit for all hours of Community Service you perform.
This program will assign you to a specific work site to complete your community service hours.
5. You may start your community service hours immediately after the enrollment or thereafter. This will be
discussed and agreed upon during your enrollment process.
 The courts have assigned you a time frame to complete your hours. To figure out your completion date, count today as day one and every day thereafter, including holidays and weekends. This program will submit to the court on that date, your satisfactory or unsatisfactory compliance notice.

Spanish-speaking interpreters are available

13400 Dilie Drive, Upper Marlboro, Maryland 20772 (301) 952-4800 • 711 Maryland Relay Service • www.princegeorgescountymd.gov

Tuesday, July 9, 2019

What does it mean if my case is put on the stet docket

Maryland has a rule allowing a case to resolve other than a trial, dismissal or guilty plea.  With the defendant's consent the case can be put on the stet docket. The following is from an information sheet found in the District Court for Prince Georges County and it summarizes the situation neatly:

 If the state moves to place your case on the stet docket, and you agree to the stet, and the judge agrees to the stet, then your case is placed on an inactive status for three years. Essentially, the state puts the file on a shelf and stops time on the case.
The stet is not a conviction or an acquittal. It is a compromise between dropping the case and prosecuting you. Because it is not a conviction, you do not have to tell employers about it if they ask whether you have ever been convicted of any crime.
For tlie first year, either you dr the state may request that the case be reactivated. The case would be removed from the shelf and brought back into court for trial. Time is restarted, and you are back in the same position as you are now, i.e., about to stand trial. . .
For the last two years, the case may only be brought back into court upon written petition to a judge, who must agree there is good cause to reactivate the case.
To receive the stet, you must waive your right to speedy trial. In other words, if the case is reactivated in the next three years, you may not say you did not get your trial.quickly enough.
You keep all your other trial rights. . ' • *;~
Tlie state may put some conditions on the stet, such as paying money to someone or some organization, staying -away from someone or some place, getting counselling, clearing up your driver's license, or anything else appropriate to your case. The state may also set a time, limit in which you must meet the condition(s) or eise have the case reactivated. It is your choice whether or not to agree to the condition(s), but you cannot have the stet disposition for your case unless you do agree and do meet the condition(s).

Wednesday, July 3, 2019

Child Support Statute

Child support and the general assembly. Under Maryland law an individual is entitled to child support under the following conditions: an individual who has attained the age of 18 years and he was enrolled in secondary school has the right to receive support and maintenance from both of the individual's parents until the first to occur of the following events:

The individual dies

The individual marries

The individual is emancipated

The individual graduates from or is no longer enrolled in secondary school or

The individual attains the age of 19 years.

You would think that the general assembly would put this particular provision in the Family Law Article under child support. Instead, it is in the Maryland code, Gen. Provisions 1-401. Even experienced family practitioners are hard-pressed to find this particular section.

The Maryland Gen. Provisions Article, in case you are interested contains the following titles:

Rules of interpretation
official oath
open meetings act
Public information act
Maryland public ethics law
United States
emblems, designations, commemorative days and months
and false claims.

Quite the potpourri of laws.

Wednesday, March 27, 2019

Further Expansion of Maryland Expungement Law

Maryland expungement law has become applicable to ever more situations. One of the newer situations is where the person is found guilty of the crime. I found information on the Maryland People's Law Library which is very helpful; below is a list of crimes which might be expunged even if you were found guilty. You will note that some of these crimes are felonies. You owe it to yourself to clean up your record if you can. If you can't do it on your own I can help you for a fairly nominal rate.

Guilty Verdict

If you were found guilty of one of these charges you may request an expungement no less than three (3) years after the guilty conviction or the satisfactory completion of the sentence, including probation, whichever is later:
  • urination or defecation in a public place,
  • panhandling or soliciting money,
  • drinking an alcoholic beverage in a public place,
  • obstructing the free passage of another in a public place or a public conveyance,
  • sleeping on or in park structures, such as benches or doorways,
  • loitering,
  • vagrancy,
  • riding a transit vehicle without paying the applicable fare or exhibiting proof of payment, or
  • certain other transportation charges (Md. Code, Transportation § 7-705).

If you were found guilty of one of these charges you may request an expungement no less than ten (10) years after the guilty conviction or the satisfactory completion of the sentence, including probation, whichever is later:
  • disorderly intoxication,
  • possessing a controlled dangerous substance (CDS),
  • use or possession of drug paraphernalia,
  • unauthorized manufacturing, distributing, or dispensing of a CDS,
  • breaking and entering a motor vehicle,
  • general theft (Md. Code, Criminal Law § 7-104),
  • littering and illegal dumping, or
  • disturbing the peace and disorderly conduct.

If you were found guilty of one of these charges you may request an expungement no less than fifteen (15) years after the guilty conviction or the satisfactory completion of the sentence, including probation, whichever is later:
  • assault in the second degree,
  • violation of an interim peace order,
  • failure to comply with a protective order,
  • felony theft,
  • possession with intent to distribute or dispense a controlled dangerous substance, or
  • burglary in the first, second or third degree.

Expungement Tool I Found

In Maryland, when you are charged with a crime or a traffic offense your name along with your address and date of birth usually appear on a public database, "Maryland Judiciary case search".  Virtually anyone at any time from anywhere on the planet can access this database, putting your name and find the above information including not just criminal and traffic convictions, but simply the fact that you are charged.  Employers, relatives, friends, people who who do not wish you well, can all access this information.

There are occasions where you can have your personal information expunged.  In general, in order to have the matter expunged the charge must be entered nolle prosequi, the defendant was acquitted, received probation before judgment or received a stet.  Sometimes the expungement can be requested immediately with a waiver and sometimes several years must pass.

I have no relation with this service provider, I don't receive anything from them, I do recommend it as an efficient tool to help you file for your expungement requests.

https://www.mdexpungement.com/


Thursday, March 7, 2019

It does not take a great deal of evidence to be charged with driving while impaired

I have been practicing law since 1986.

When I first began practicing law it was much harder to prove alcohol-related driving cases and the sanctions were lower. For example, the alcohol driving crimes back then were driving while intoxicated which required a .15 BAC and driving under the influence of alcohol which required a .13 BAC.

There was no administrative per say sanctions for a high breath test.

Currently we no longer have driving while intoxicated. Driving under the influence per se requires a breath test of .08 BAC and driving while impaired requires a test of .07 BAC. A test of .06 BAC will often result in a charge against the defendant.

Even if there is no breath test the case law indicates that not much impairment is required to be convicted.  The following is from a Maryland appellate case, Meanor v. State, 774 A. 2d 394 - Md: Court of Appeals 2001

"Prior to 1995, § 21-902(a) prohibited a person from driving or attempting to drive a vehicle while intoxicated, and § 21-902(b) prohibited a person from driving or attempting to drive while under the influence of alcohol. Neither term—intoxicated or under the influence—was legislatively defined, and neither had been judicially defined by us for purposes of § 21-902. In Clay v. State, 211 Md. 577, 584, 128 A.2d 634, 638 (1957), we defined "under the influence of alcohol," for purposes of the manslaughter by automobile statute, as "drinking to the extent of probably affecting one's judgment and discretion or probably affecting one's nervous system to the extent that there is a failure of normal coordination, although not amounting to intoxication." (Emphasis added). In Alston v. Forsythe, 226 Md. 121, 132, 172 A.2d 474, 479 (1961), we applied that definition in a civil action for negligence arising out of an automobile accident.
The pattern jury instruction drafted by the Maryland State Bar Association Standing Committee on Pattern Jury Instructions (MPJI-Cr 4:10), which is often used by the trial courts and was used in this case, not only makes clear that the distinction between the two states is one of degree but provides what seems to us a better definition of "under the influence" and a workable and reasonable distinction between that and intoxication. It states:
"The distinction between driving while intoxicated and driving under the influence of alcohol is one of degree. A person is under the influence of alcohol when the alcohol that [he][she] has consumed has impaired normal coordination, although not amounting to intoxication. Another way of saying this is that the person's abilities have been reduced or weakened by the consumption of alcohol.
Intoxication means more than being under the influence of alcohol. A person is intoxicated when the alcohol that [he][she] has consumed has substantially impaired normal coordination."

Obviously it's not a good idea to drink and drive for many reasons. But if you do find yourself in that unfortunate situation you need experienced counsel to defend you. Call me if you need some help.

Wednesday, March 6, 2019

Why it's often worthwhile defending your speeding ticket

Speeding charges or one of the most common charges seen in traffic court. In Maryland speeding convictions put points on your driving record. Points on your driving record lead to increased insurance premiums and even cancellation of insurance coverage.

In Maryland speeds from 1 mile over to 9 miles over equals one point
10 miles to 29 miles over the limit two points
30 miles over the limit five points
anything over 85 mph five points (for example the speed limit is 65 mph and you are clock doing 86 mph that would be five points)

When you receive a speeding ticket you could simply pay the ticket and the points would be automatically assessed against your driving record. That may be convenient but it could lead to long time insurance increases, insurance cancellation and if you accumulate eight points or more license suspension, 12 points or more license revocation.

When you receive a speeding ticket even if the ticket is only $160 (a not unusual rate for a two point speeding ticket) you might consider spending the several hundred dollars it might cost to retain me.

Case in point. I was in traffic court recently. Most people were unrepresented. Several were lucky, the police officer did not show and the tickets were dismissed. That's a pretty good reason for asking for a trial. The defendant has the presumption of innocence and the burden is on the state to have the evidence to prove the defendant guilty. If the officer does not show many times the court will dismiss the ticket.

Before my trial I watched others plead guilty on their speeding tickets. They had the same officer as my client. The judge often would reduce the points on the ticket somewhat and would reduce the fines but there were still convictions.

Under the law of Maryland there really should not be a trial penalty. In other words, the judge should not hold it against you if you exercise your constitutional right to have a trial.

Speeding trials in Maryland are often trial by surprise (I really don't know what the officer will say specifically or what evidence the officer necessarily has, there is no official discovery process for nonserious traffic cases). Nonetheless I have done this for many years and generally know what the officer needs. In my case the officer testified that he was certified to use laser equipment to establish speed and had his certificate as to his qualifications. He also testified that the equipment he had was properly checked out and certified but he did not have the certifications with him. I objected arguing that the best evidence rule required the presence of the certificates. The judge correctly, in my opinion, ruled that the officer did need these certificates and found my client not guilty.

It cost my client several hundred dollars more than the original ticket but it saved my client from increased insurance premiums and possible insurance cancellation.

If you receive a speeding ticket feel free to call me, I might be able to help.

Wednesday, February 6, 2019

Federal Housing Assistance/Section 8 Housing and Criminal Convictions

I practice criminal defense. Besides the direct possible consequences of a criminal conviction such as incarceration, probation with home inspections, drug tests, counseling, etc. can come collateral consequences such as termination of housing privileges.

Federal Housing Assistance, Housing Choice Voucher Program (Section 8 Housing) provides housing assistance to qualified persons. The programs are administered in Maryland through County agencies. Persons in the program must adhere to guidelines or risk termination of benefits and ultimate eviction.

One of the program guidelines addresses criminal convictions. If you are convicted of certain crimes, some as ordinary as assault, can have the person and those residing with the person terminated from the home.

The Court of Appeals for Maryland addressed this matter in Karen McDonald Versus Harford County Housing Agency.

When you are contemplating your options in a criminal case you should consider whether a conviction can have you removed from your home.