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As a Maryland Criminal Attorney I am often required to deal with issues involving bail. In fact I spoke with a women first thing this morning whose daughter was locked up on a $25,000 bail and charged with Armed Robbery and Assault. The poor women was completely without a clue as to what bail was or how to post it. The defendant was due to be in court for a bail review just a few hours later so she had very little time to get educated and decide what to do.

I told her that her first decision was to decide whether to let her daughter attend the bail review or to bail the her out prior to the bail review. I explained, to her great surprise, that a judge at a bail review can not only lower the bail as set by the court commission, but can also raise the bail. In many instances I advise the family members or friends who contact me about a defendant who is in jail awaiting bail to go ahead and bail the defendant out prior to the bail review because it is my opinion that in that case the bail is more likely to be raised than it is to be lowered. This is exactly what I told this women this morning as by Baltimore City bail standards, $25,000 is low for an Armed Robbery charge. If all cases where a defendant decides that he wants to (or must) attend the bail review he would be foolish not to retain an experienced criminal defense lawyer to represent him at this critical stage of the process.
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Maryland Criminal Attorney– Baltimore Criminal Lawyer I represented a defendant this afternoon in Prince Georges County District Court who was charged both with acting as a home improvement contractor without a license and failure to perform a home improvement contract which usually means failure to complete the contract to the homeowners satisfaction as it was in this case. Many people, including many new contractors, don’t realize that it is illegal to operate as a home improvement contractor without a license or to fail to perform the contract and that violations of this sort carry significant criminal sanctions or just how broad the definition of home improvement is.

The Annotated Code, Business Regulation Article defines both what constitutes home improvement as well as what the criminal penalties are for violations. According to Section 8-101 Home Improvement means: The addition to or alteration, conversion, improvement, modernization, remodeling, repair, or replacement of a building or part of a building that is used or designed to be used as a residence or dwelling place or a structure adjacent to that building; or an improvement to land adjacent to that building. In addition to the obvious things like building an addition or finishing a basement, home improvement includes work such as repaving a driveway and the connection, installation or replacement of a dishwasher, disposal or refrigerator. It also includes work such as landscaping or building a fence.
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Maryland Criminal Attorney – Baltimore Criminal Attorney Most people are aware that in Maryland a person who has been convicted of a violent crime or a felony may not possess handguns. People seem to be less aware of restrictions involving other weapons such as rifles, shotguns, assault weapons and antique firearms. I have blogged about this in the past and this blog is really intended to discuss possession of other weapons but I think an overview of the law on handgun possession will be helpful to the reader.

First of all, what exactly is the definition of a handgun under Maryland Law? One would think that this would be a relatively straightforward and easy question to answer. Unfortunately, that is not the case. There are two separate definitions under two of the three sections of the Maryalnd Code that criminalize handgun and firearm possession. Under Public Safety 5-101(n) a handgun is defined as a firearm with a barrel less than 16 inches. Under this section a handgun includes signal, starter and blank pistols. Under Criminal Law Section 4-201(c) a handgun is defined as a pistol revolver or other firearm capable of being concealed on the person. Under this definition a handgun includes short-barrelled rifles which is defined as a firearm having a barrel less than 16 inches or an overall length of less than 26 inches; and shotguns with a barrel less than 18 inches or an overall length of less than 26 inches. Under this definition a standard rifle, shotgun or any antique firearm is not deemed to be a handgun. Presumably this definition would also include starter pistols since they are included in the definition of a firearm under the Public Safety Article definition, but would not include signal or blank pistols as they are not included in that definition. Very confusing to say the least.
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Maryland Criminal Attorney – Baltimore Criminal Attorney I was hired today to represent a freshman at Towson University who got charged with possession with the intent to distribute marijuana. It is a typical case of being in the wrong place at the wrong time as well as a clear case of overcharging by the police as I have discussed in previous blogs. Although I believe the case will work out favorably in the long run, it will certainly have some short term criminal and administrative consequences.

My client moved into the dorms at Towson University just a few weeks ago. He didn’t have any high school friends who were also attending the university so he signed up to be randomly assigned roommates. He soon learned that his new roommates were marijuana smokers who frequently smoked in the dorm room. This past Saturday that careless habit came back to haunt them because one of the RA’s apparently smelled the smoke coming from their room and called the police.
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Maryland Criminal Attorney – Baltimore Criminal Attorney I represented a client today on a possession with intent to distribute a controlled dangerous substance case today in the Circuit Court for Baltimore County. In this case the particular substance was amphetamines and the case presents a good example of how many narcotics detectives overcharge certain cases – presumably to inflate their own felony arrest statistics.

In this case the client was pulled over for a routine traffic offense. The officer claimed, as they frequently do, that he smelled the odor of burning marijuana coming from the car. (The Court of Appeals ruled approximately 15 years ago that the smell of marijuana alone constitutes probable cause. As one might imagine after that ruling was handing down, police officers across Maryland began to smell marijuana on car stops with increasing frequency). The officer ordered my client out of the car and commenced a search of the vehicle. Inside the vehicle the officer found a small amount of cocaine and two percocets, which for anyone who doesn’t know, is a prescription narcotic. He arrested my client and charged him with possession of a controlled dangerous substance.
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Our firm has represented both doctors and and Web sites who are under investigation or have been charged with prescribing controlled substances via the Web.

The growing number of Web sites that offer consumers the opportunity to obtain prescription medications pursuant to an online medical consultation have been attracting considerable regulatory scrutiny from state and federal health officials.

For example, in Illinois, the Department of Professional Regulation suspended the license of Dr. Robert Filice for prescribing Viagra via an Internet pharmacy for patients he had never seen. Dr. Filice was working as a consultant for The Pill Box, a San Antonio, Texas-based pharmacy chain that sells online. The state suspended Dr. Filice’s license immediately because it determined his actions put people in danger. The agency later reinstated his license when he admitted that his conduct was “unprofessional.” The physician was fined $1,000, put on a two-year probation, and ordered to not prescribe medication to patients without personally interviewing and examining them.

Patients who wanted a prescription drug like Viagra logged onto The Pill Box’s site and filled out a health questionnaire. The completed form went to the company’s medical consultants, including Dr. Filice, who would reviewed the forms, and, if he found no health conditions that would preclude him from prescribing the drug, he would write a prescription for the drug, which the Pill Box would fill.

Many state legislators have passed or are considering bills to regulate online and mail-order pharmacies that sell products in the state. The laws would require Internet pharmacies to register with the state annually.

Recent enforcement actions in several other states highlighted below are indicative of this increased scrutiny at the state level:

• In Washington, the Board of Health fined an orthopedic surgeon $500 for engaging in “unprofessional conduct” by writing Viagra prescriptions for patients without performing a physical examination.

• In California, state regulators recently shut down two web sites-www.drpropecia.com and www.deyarmanmedical.com.com-run by a San Diego osteopath who was using the Web to prescribe baldness treatments without performing a traditional medical examination. The state is likely to fine the doctor, who has been practicing medicine for nearly a quarter-century, and could take away his license.

• In Kansas, the Attorney General on June 9 filed civil petitions alleging violations of consumer protection laws against seven companies that were selling prescription-only medications, including Viagra and weight-loss drugs, over the Internet. The Attorney General alleged that the companies violated a variety of state laws. Primarily, the alleged misdeeds stem from the distribution of prescription drugs by a doctor or pharmacist who was not licensed in the state. The state went after not only the sites that prescribe the medications, but also three pharmacies that filled the prescriptions. One of the suits alleges that Viagra was illegally dispensed to a 16-year old boy using his mother’s credit card. If found liable, the companies could face penalties of $5,000 to $10,000 per violation.
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When the federal Sentencing Guidelines were first implemented in the late 1980’s, federal judges quickly became frustrated with a new system that virtually tied their hands in terms of deciding an appropriate criminal sentence. Prior to the Guidelines, federal judges had wide discretion in imposing sentences on those who pled guilty or were convicted in federal court. The judges could take into consideration the full picture of the defendant – not only the crime he or she was charged with but also his or her family, background, education, and expression of remorse. The Guidelines dramatically changed that system, and set forth rather rigid – and mandatory — Guidelines. Whether the defendant had been accused of an intricate white collar financial fraud scheme, racketeering, drug distribution, or conspiracy to sell illegal weapons, the Guidelines left very few mechanisms for the judges to allow for any leniency or exceptions.

I remember when the Guidelines went into effect, my uncle, the late Norman P. Ramsey, Judge, U.S. District Court for the District of Maryland, never missed an opportunity to express his frustration – whether on the bench or at a family gathering. Were my uncle still alive, he would now be thanking the Supreme Court, which three years ago swung the pendulum back toward the pre-Guideline days.

In Booker v. United States, 125 S.Ct. 738 (2005), the Supreme Court ruled that the Federal Sentencing Guidelines are advisory provisions that recommend a particular sentencing range, rather than require it. Rather than simply impose a sentence within the recommended Guideline Range, a sentencing Judge must “consider the guideline range” but tailor the sentence in light of other statutory concerns as well,” particularly those set forth in 18 U.S.C. §3553(a). See Booker, 125 S.Ct. at 757. In the wake of Booker, the Fourth Circuit found plain error in a sentencing and remanded the case to the district court for re-sentencing, with the following instructions to the sentencing court:

Consistent with the remedial scheme set forth in Booker, a district court shall first calculate (after making the appropriate findings of fact) the range prescribed by the guidelines. Then, the court shall consider that range as well as other relevant factors set forth in the guidelines and those factors set forth in § 3553(a) before imposing the sentence. . . . If the court imposes a sentence outside the guideline range, it should explain its reasons for doing so.

United States v. Hughes, 2005 WL 147059, *3 (4th Cir. Jan. 24, 2005)(citations and footnote omitted). The Fourth Circuit noted that in light of the excision of § 3742(e) by the Supreme Court, it would affirm a sentence “as long as it is within the statutorily prescribed range . . . and is reasonable.” Id. (citations omitted).
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Maryland DUI/DWI Lawyer/Attorney Can a person initially refuse to consent to a breathalyzer and then, upon further reflection, withdraw that refusal? And does that withdrawal of the refusal then constitute valid consent? The answer is a qualified yes. According to 16-205.1 of the Maryland Traffic code a person may withdraw an initial refusal to submit to a breathalyzer and then later consent to take a test of breath if the subsequent consent is unequivocal and it does not substantially interfere with the timely and efficacious administration of the the test.

I had a case in Baltimore County that presented this exact situation several months ago. My client was pulled over on I695 for speeding. He admitted to the officer that he had had 3 beers completing the last beer approximately 90 minutes prior to being stopped. He was asked to perform field sobriety tests and consented to do so. He believed that he had performed the tests virtually flawlessly but the State Trooper arrested him anyway. He was taken back to the State Police Barrack where he was read his rights and had the potential consequences of refusing to take the breath test or blowing over .08 explained to him. He initially said refused to consent to the breath test but then requested to use the telephone to contact his attorney.
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In establishing a process by which a sentencing judge may depart outside the guideline range, the Federal Sentencing Commission recognized that “it is difficult to prescribe a single set of guidelines that encompasses the vast range of human conduct potentially relevant to a sentencing decision.” U.S.S.G. ch. 1, pt. A, intro. comment 4(b).

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In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that in certain defined circumstances a defendant can attack a facially sufficient affidavit. The Franks Court recognized a “presumption of validity with respect to the affidavit supporting the search warrant,” 438 U.S. at 171, 98 S.Ct. at 2684, and thus created a rule of “limited scope,” id. at 167, 98 S.Ct. at 2682. The rule created by the Franks decision requires that a dual showing be made before a court will hold an evidentiary hearing on the affidavit’s integrity. This showing incorporates both a subjective and an objective threshold component. In order to obtain an evidentiary hearing on the affidavit’s integrity, a defendant must first make “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit.” Id. at 155-56, 98 S.Ct. at 2676-77. This showing “must be more than conclusory” and must be accompanied by a detailed offer of proof. Id. at 171, 98 S.Ct. at 2684.

In addition to showing that the affidavit contains false information, a defendant must show that the false information is essential to the probable cause determination. That is, if a court finds that “when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.” Id. at 171-72, 98 S.Ct. at 2684-85.

The Franks test not only applies to cases where false information is included in an affidavit, but also applies when affiants omit material facts “with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading.” United States v. Reivich, 793 F.2d 957, 961 (8th Cir.1986) and United States v. Colkley, 899 F.2d 297, 300 (4th. Cir.1990).
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Government wire interceptions must be conducted in a manner to minimize interceptions of communications not subject to interception. 18 U.S.C. Section 2518(5). Minimization embodies the constitutional requirement of avoiding, to the greatest extent possible, seizure of conversations which have no relation to the crimes being investigated or the purpose for which electronic surveillance has been authorized. United States v. Clearkley, supra, 556 F.2d at 715 & n.3 (and cases and authorities cited therein). Law enforcement personnel must exhibit a high regard for the right to privacy and do all they reasonably can to minimize interceptions of non-pertinent conversations. Id. at 716; United States v. Tortorello, 480 F.2d 764, 784 (2nd Cir.), cert. denied, 414 U.S. 866 (1973).

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In many Maryland drinking and driving cases, the decision in Rowe v. State, 363 Md. 483, 769 A.2d 879 (2001) establishes parameters for whether police officers have probable cause to legally stop the driver.

In Rowe, a Maryland State Trooper observed a van being driven in the slow lane of I-95, at about 1:00AM. The trooper followed the vehicle for a little over a mile, and in that span observed it cross over onto the right shoulder about 8 inches, touch the rumble strip, return to the slow lane, and cross over a second time. The trooper then initiated a traffic stop “for the benefit of the driver…because it was late in the evening.” Id. at 428. The officer determined that the driver was not intoxicated, but discovered that he was driving a rental vehicle with an expired rental contract. The officer then searched the vehicle and discovered marijuana, and was issued a warning for failure to drive in a single lane under Trans Art. § 21-309(b) . Suppression of this evidence based on an unlawful stop was denied in the trial court.

The Court of Appeals reversed the denial. The Court stated that “the petitioner’s momentary crossing of the edge line of the roadway and the later touching of that line did not amount to an unsafe lane change or unsafe entry onto the roadway, conduct prohibited by §21-309, and thus, cannot support a traffic stop in this case.” Id. at 441. The Court also stated that a lawful traffic stop may also rest upon reasonable, articulable suspicion, and stated: “A traffic stop may also be constitutionally permissible where the office has a reasonable belief that “criminal activity is afoot.” Whether probable cause or reasonable suspicion exists to justify a stop depends on the totality of the circumstances.” The Court did not determine that there was other reasonable suspicion.
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Maryland DUI/DWI Attorney I was recently retained to represent a person who is charged with Driving Under the Influence of Alcohol, Driving While Impaired, Negligent Driving and Failure to Control Speed to Avoid a Collision. The client was involved in a serious single car accident while driving home from a night out at the bars. He lost control of his car, went off the road and slammed into a telephone pole. He was seriously injured with several broken bones and was transported to shock trauma.

In cases involving motor vehicle accidents in which the suspected drunk driver is injured badly enough to require hospitalization, there is obviously not an opportunity for the investigating officer to request that the suspected drunk driver perform standardized field sobriety tests. In these cases the officer will typically speak to the driver and develop suspicion that the driver is impaired by alcohol based upon his observations. The officer will look for the smell of alcohol, blood shot eyes, slurred speech and other clues that the person is under the influence. If that suspicion is developed the officer will respond to the hospital and request that the driver submit to a test of his blood. The person my refuse to consent unless the accident caused death or life threatening injury, in which case he may be compelled to submit to a blood test.
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Maryland DUI/DWI Attorney. I blogged several months ago about a Maryland DUI Case that I handled in the District Court for Anne Arundel County in which my client claimed to have performed the field sobriety tests far better than was indicated by the officer in the Statement of Charges. In that case I subpoenaed the video tape from the Maryland State Police Department and it turned out that my client was correct. The officer had exaggerated or outright fabricated poor performance on the field sobriety tests. I introduced the video into evidence at his trial and he was found not guilty.

Today I had a similar case in the District Court for Baltimore City. My client had the misfortune of passing a late model Chevy Malibu at approximately 1:00 AM on Interstate 95 N. just South of the Harbor Tunnel. About the time he pulled even with the Malibu (doing approximately 85MPH) he realized that it was an undercover Maryland Transportation Authority Police car. He was then pulled over and ultimately arrested for DUI, speeding and negligent driving.
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