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“First they came for the drunk drivers…”

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For many years now I’ve written and lectured extensively on drunk driving litigation – on the science of blood and breath alcohol analysis, the flaws in breathalyzers, the ineffectiveness of field sobriety testing.  In recent years, however, my focus has increasingly shifted to the gradual erosion of constitutional rights in DUI cases. So who cares […]

Probation Before Judgment (PBJ) in Maryland (MD) - FAQ Answered by a Maryland Criminal Lawyer

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Probation Before Judgment or "PBJ" in MarylandIf you need a Maryland criminal lawyer or traffic lawyer, call attorney Randolph Rice at 410-288-2900 or email him directly for immediate legal help.What is a Probation Before Judgment?Maryland Criminal Procedure § 6-220 defines probation before judgment as follows:§6-220. Probation before judgment (b) In general.(1) When a defendant pleads guilty or nolo contendere or is found guilty of a crime, a court may stay the entering of judgment, defer further proceedings, and place the defendant on probation subject to reasonable conditions if:(i) the court finds that the best interests of the defendant and the public welfare would be served; and(ii) the defendant gives written consent after determination of guilt or acceptance of a nolo contendere plea.(2) Subject to paragraphs (3) and (4) of this subsection, the conditions may include an order that the defendant:(i) pay a fine or monetary penalty to the State or make restitution; or(ii) participate in a rehabilitation program, the parks program, or a voluntary hospital program.(3) Before the court orders a fine, monetary penalty, or restitution, the defendant is entitled to notice and a hearing to determine the amount of the fine, monetary penalty, or restitution, what payment will be required, and how payment will be made.(4) Any fine or monetary penalty imposed as a condition of probation shall be within the amount set by law for a violation resulting in conviction.(5) As a condition of probation, the court may order a person to a term of custodial confinement or imprisonment.(c) Participation in treatment and education programs.(1) When the crime for which the judgment is being stayed is for a violation of § 21-902 of the Transportation Article or § 2-503, § 2-504, § 2-505, § 2-506, or § 3-211 of the Criminal Law Article, the court:(i) before imposing a period of probation, may order the Department of Health and Mental Hygiene to evaluate the defendant in accordance with § 8-505 of the Health - General Article;(ii) if an evaluation was ordered under item (i) of this paragraph, shall review the evaluation before imposing a period of probation; and(iii) shall impose a period of probation and, as a condition of the probation:1. shall require the defendant to participate in an alcohol or drug treatment or education program approved by the Department of Health and Mental Hygiene, unless the court finds and states on the record that the interests of the defendant and the public do not require the imposition of this condition; and2. may prohibit the defendant from operating a motor vehicle unless the motor vehicle is equipped with an ignition interlock system under § 27-107 of the Transportation Article.(2) When the crime for which the judgment is being stayed is for a violation of any provision of Title 5 of the Criminal Law Article, the court shall impose a period of probation and, as a condition of probation, require the defendant to participate in a drug treatment or education program approved by the Department of Health and Mental Hygiene, unless the court finds and states on the record that the interests of the defendant and the public do not require the imposition of this condition.(d) Conditions under which probation before judgment prohibited. Notwithstanding subsections (b) and (c) of this section, a court may not stay the entering of judgment and place a defendant on probation for:(1) a violation of § 21-902 of the Transportation Article or § 2-503, § 2-504, § 2-505, § 2-506, or § 3-211 of the Criminal Law Article, if within the preceding 10 years the defendant has been convicted under § 21-902 of the Transportation Article (this pertains to prior DUI convictions) or § 2-503, § 2-504, § 2-505, § 2-506, or § 3-211 of the Criminal Law Article, or has been placed on probation in accordance with this section, after being charged with a violation of § 21-902 of the Transportation Article (this means if you received a PBJ for a DUI in the past 10 years, you are not eligible for another PBJ within that 10 year period proceeding) or § 2-503, § 2-504, § 2-505, § 2-506, or § 3-211 of the Criminal Law Article;(2) a second or subsequent controlled dangerous substance crime under Title 5 of the Criminal Law Article, except that the court may stay the entering of judgment and place a defendant on probation for possession of a controlled dangerous substance under § 5-601 of the Criminal Law Article if:(i) the defendant has been convicted once previously of or received probation before judgment once previously for possession of a controlled dangerous substance under § 5-601 of the Criminal Law Article;(ii) the court requires the defendant to graduate from drug court or successfully complete a substance abuse treatment program as a condition of probation; and(iii) the defendant graduates from drug court or successfully completes a substance abuse treatment program as required;(3) a violation of any of the provisions of §§ 3-303 through 3-307, §§ 3-309 through 3-312, § 3-315, or § 3-602 of the Criminal Law Article for a crime involving a person under the age of 16 years; or(4) a moving violation, as defined in § 11-136.1 of the Transportation Article, if:(i) the defendant holds a provisional license under § 16-111 of the Transportation Article; and(ii) the defendant has previously been placed on probation under this section for the commission of a moving violation while the defendant held a provisional license.(e) Waiver of right to appeal.(1) By consenting to and receiving a stay of entering of the judgment as provided by subsections (b) and (c) of this section, the defendant waives the right to appeal at any time from the judgment of guilt.(2) Before granting a stay, the court shall notify the defendant of the consequences of consenting to and receiving a stay of entry of judgment under paragraph (1) of this subsection.(f) Effect of violation of probation. On violation of a condition of probation, the court may enter judgment and proceed as if the defendant had not been placed on probation.(g) Effect of fulfillment of conditions of probation.(1) On fulfillment of the conditions of probation, the court shall discharge the defendant from probation.(2) The discharge is a final disposition of the matter.(3) Discharge of a defendant under this section shall be without judgment of conviction and is not a conviction for the purpose of any disqualification or disability imposed by law because of conviction of a crime.(i) Custodial credit. If an individual violates the terms of probation, any time served by the individual in custodial confinement shall be credited against any sentence of incarceration imposed by the court.Can I an expungement after a probation before judgment in Maryland?Yes, but you must wait three (3) years after the end of probation.   That means if you receive a probation before judgment ("PBJ") and you are placed on three years of probation, you must wait another three years from the end of your probation to file for expungement in Maryland.Does a PBJ go on my record?A PBJ is not a conviction and if you are asked by a potential employer or school if you have been convicted, you can honestly answer, No.  However, the reality is that most employers and schools have the knowledge to look at the Maryland Judiciary Case Search.  If they look on that site, they will be able to search by your name and find any charges, what your plea was and what the outcome or disposition in the case.A PBJ is not a bad outcome in most criminal cases as an alternative to a guilty, which you can never expunge from your record absent a pardon from the Governor of Maryland, which does not happen very often.If you have been charged with a crime or traffic violation, contact the Law Offices of G. Randolph Rice, Jr., LLC at 410-288-2900 for immediate legal help.

SCOTUS grants cert to explore how many procedural angels can dance on a habeas pin

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The snarky title of this post is my reaction to the one cert grant today by the Supreme Court in a capital case from Texas, Jennings v. Stephens [Order List available here]. Upon first seeing news of a grant in...

Top-Ten Recent SSRN Downloads

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in criminal law and procedure ejournals are here. The usual disclaimers apply. RankDownloadsPaper Title 1 500 Last Words: A Survey and Analysis of Federal Judges' Views on Allocution in Sentencing Mark W. Bennett and Ira P. Robbins U.S. District Court...

Bridezilla murderer Jordan Graham's federal sentencing as amazing teaching opportunity

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Regular readers (or anyone who watches morning television) likely remember the killer newlywed Jordan Graham. As reported in prior posts here and here, Graham admitted to pushing her new husband from a cliff in Glacier National Park, but at first...

Somerset County DWI News: Local Woman Gets DWI Following 3-Car Crash in Bernards Twp.

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As in many parts of the Garden State, police patrols in Somerset County, NJ, are always active on city streets, undivided highways and high-speed interstates. Whether one travels to and from work or school, going shopping or simply taking a driving vacation to the Jersey Shore for some needed R & R, the odds of coming into contact with a New Jersey State Police trooper or a local patrolman are usually quite high. As DWI defense lawyers, my colleagues and I have met dozens of average people who never thought they would ever be charged with a serious traffic offense, much less be arrested for drinking and driving. Yet, every week, scores of Jersey residents and out-of-state drivers get pulled over for some minor infraction, opening themselves up to additional scrutiny from a law enforcement officer. A percentage of these individuals will be unlucky enough to have had something to drink in the hours prior to that traffic stop. Unfortunately, many of them will be taken into custody and charged with some kind of impaired driving offense. More and more, this group includes individuals who may be carrying some kind of illicit drug on their person, which can complicate matters when the time comes for court appearance. Still others find themselves involved in a roadway collision. It's no secret that drinking and driving only increases the chances of a motorist being involved in a single- or multiple-car accident. If alcohol or drugs were involved, the ante is raised sufficiently to make speaking with a qualified DWI-DUI defense attorney not only a good idea, but almost a necessity. Being experienced trial lawyers, we understand that accidents do happen. And while we do not condone drinking and driving, we also know that some people accused of DWI-related collisions may not have been legally drunk at the time of the wreck.

Practicing the Future

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Davina Cooper, Everyday Utopias: The Conceptual Life of Promising Spaces (2014).Margaret DaviesOver the past several years, Davina Cooper has been writing about “everyday utopias,” intentionally created practices and spaces, which represent an effort to enact social change in everyday life. In Everyday Utopias: The Conceptual Life of Promising Spaces, Cooper brings together much of this work in a revised form and underpins it with an extensive theoretical discussion of how such practices can be understood as socially transformative. The individual [...]

Chandler Gunplay in the News

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It’s beginning to look as if guns might be a slight problem in the Phoenix area. We’ve taken a look at the news over the past few weeks, and it seems as if firearms are everywhere. And they are not only being used by people attempting to commit crimes or for target practice. In Arizona, […] The post Chandler Gunplay in the News appeared first on David Black.

Body cams for San Diego cops – Who is really being watched?

Why Gleeson Is Wrong (Or The Adoration Of The Fearful)

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In United States v. Diaz, EDNY Judge John Gleeson ripped the heart out of the beloved United States Sentencing Guidelines approach to drug sentences. The flaw is simply stated: the Guidelines ranges for drug trafficking offenses are not based on empirical data, Commission expertise, or the actual culpability of defendants. If they were, they would […]

“I AM THE SUBJECT OF A MASSACHUSETTS CRIMINAL INVESTIGATION…BUT I DON’T THINK THEY HAVE ANY EVIDENCE AGAINST ME” PART ONE

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I am not going to tell you that every crime that is ever committed is discovered and/or punished. Likewise, I will argue forever that not everyone convicted of a crime is truly factually guilty. However, the way cases are “discovered”, “solved” and brought to trial has to do with evidence. Most people figure that they know what constitutes evidence. Many of those people are wrong. Attorney Sam’s Take On What Evidence Is, Can Be And Just A Few Ways It Can Be Tainted First of all, let’s do away with the most frequent reflection of evidentiary misunderstanding to which I am so often treated. “There is no physical evidence. They’ve got nothing. It is just her word against mine.” Even assuming that there is no physical evidence and all that the prosecution has as evidence is its complainant’s word to use against your word (assuming you are able to testify), to say that they have “nothing” shows great naiveté. What they have is the complainant’s word. That is all the prosecution needs to bring a case against you. One person’s word. Just to add flavor to that reality, remember something else we have discussed in past blogs. That is that whoever wins the jog to the police is generally going to be considered the “victim” and the person that victim accuses will be the “defendant”. It can, and usually does, happen that quickly. Given that law enforcement makes that determination so early in the “criminal investigation”, the goal of the police becomes the building the (already established) case. Thus, there is a taint to the investigation in such cases from the very start. “But they will still keep an open mind, right? I meant, the police do want to see Justice done, right?” The police generally want to see “Justice” done, yes. However, the problem is that they generally decide what that means in a particular case very early on. The truth, then, is not what you mean by “open mind”. In their minds, they have the truth. Now it is time to build the case against you. “But the officer told me that he is keeping an open mind, can tell I am a good guy and he just wants to get my side of the story so that he can close the file.” Yes, that is what they usually will tell you. It is a great approach to get you to talk to them when you do not have to. It may even get you to lower your guard so that you will answer questions in a sloppy manner so that your statements can seem like a confession. We have discussed many times that, under the law, police officers are allowed to lie during the course of their investigations. The only problem comes if you lie to them. That is called the felony of witness intimidation, believe it or not. Now, in this scenario, the officers have spoken to, and taken the word of, the complainant who got to them first. They have decided that, based upon the word of the complainant, there is a case to be made and prosecuted against you. That is the situation as you open the door to law enforcement in the beginning stages of the “investigation”. As the police believe the complainant, and the prosecutor takes the word of the police, by the time the charges come down the system’s legal gun barrel, regardless of whatever else has been found, there is a bona fide case against you. “And they can win a case on that?” Often they can. Sometimes they can’t. That will not be found out until the jury returns…somewhere between six months and a year later. But it's too late to take back mistakes you made earlier on because you believed the "search for the truth" myth. "Okay, but what about cases where nobody is claiming to be a witness to a crime? For example, what about a white collar crime where I am suspected of doing something wrong even though nobody knows for sure?” Good question. Let’s start with it tomorrow.

Even The Guiltiest

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According to the Lockport Union-Sun & Journal, Matthew Murphy was “[b]itten by the ‘prosecutorial bug’” when he got a job as an assistant United States attorney. “I liked it. You feel like you’re helping people there,” Murphy said. “You can see in a tangible way that you’re helping people when you serve as a prosecutor.” […]

Changing Hearts and Minds in India

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Kadambari Gladding discusses turning the tide of public option in India, where public option increasingly favors the death penalty.

Phase Two: The Personal Contact Phase

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An officer’s decision to arrest for DUI involves three steps: observing the vehicle in motion, observing the driver during a personal contact phase, and administering field sobriety tests.  Evidence is collected at each stage.  If, after conducting all three phases, the officer believes probable cause exists that you are impaired, you will then be arrested.  Probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would ‘warrant a man of reasonable caution [Read the full post. . .]

Hollway on A Systems Approach to Error Reduction in Criminal Justice

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John Hollway (University of Pennsylvania Law School - Quattrone Center for the Fair Administration of Justice) has posted A Systems Approach to Error Reduction in Criminal Justice on SSRN. Here is the abstract: The “systems approach” has been used, improved,...

Marijuana Legalization and Driving High in Alabama

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Nationwide, the legalization of marijuana is gaining popularity. Colorado and Washington states have already legalized some forms of sale and possession for personal use. While advocates of legalization see the trend spreading to other states, law enforcement agencies and officers associate recreational use of pot with “driving” high. As the majority of Americans support legalization, Alabama legislators and public safety advocates are warning of the potential of “stoned” drivers. Despite this concern, health officials and law enforcement agencies do not have the data to support fear mongering. In the state of Alabama, drivers can be charged for driving under the influence; however, proving that a driver has been smoking weed or how much to be incapacitated is a challenge. Our Birmingham drunk driving attorneys are dedicated to protecting the rights of our clients arrested and charged with DUI. Cases involving prescription drug use or marijuana should be reviewed by an experienced advocate who can help determine whether charges are warranted or supported by law. According to an Alabama Public Radio report, most drivers do not see the use of pot as a significant inhibitor of motor skills. Comparatively, pot smoking and getting behind the wheel is no comparison to drinking and driving. Still, safety advocates are concerned that drivers will ignore the potential dangers of “driving high.” Some urge laws and penalties just as strong for pot smokers are they are for drunk drivers.

Could 2014 be a "comeback" year for state executions?

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Because last Saturday my fantasy baseball league had its annual auction, I have spent time recently thinking about which MLB players might have a big "comeback" year after struggling through 2013. (As I Yankee fan, I am hoping Derek Jeter...

CA8: Officers with arrest warrant could look in window to see if anyone was home

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An officer with an arrest warrant could press his face against defendant’s tinted house window in an effort to see if he was inside. The officers had an anonymous 911 call he was home and had a reasonable belief he was inside when that view was made and they entered. United States v. Glover, 2014 U.S. App. LEXIS 5389 (8th Cir. March 24, 2014). Defendant’s plea agreement benefitted him, and it waived his suppression issue. United States v. De La Pena, 2014 U.S. Dist. LEXIS 38376 (D. Nev. March 24, 2014).* Defendant was found to have consented to a search of his convenience store for synthetic drugs. He was conversant enough in English to translate the Miranda form for another person there who didn’t speak English well at all. United States v. Lail, 2014 U.S. Dist. LEXIS 38433 (D. Nev. March 24, 2014).*

The Way These Women Dress Is Criminal

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I’ve been married to a man for sixteen years.  That makes me an expert in men’s dress.  If the occasion is formal—an important meeting at work, a cocktail party, a wedding, or a funeral—he wears a suit and tie.  If the dress is business casual, he wears slacks and a dress shirt.  If we’re going […]

Interpreting Texas' new junk science writ

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Craig Malisow at the Houston Press has an article up on the Neal Hampton Robbins habeas corpus writ, describing the action at last week's oral arguments at the Court of Criminal Appeals. See related coverage here, here, here, here, here and, en Español, here.The more I think about how oral arguments went in that case, the more difficult it seems to guess where the CCA might land. Judge Larry Meyers, who wrote the majority opinion (pdf) the last time around, seemed isolated in his view that the Legislature had acted unconstitutionally when it passed Sen. John Whitmire's SB 344 creating a new cause of action for habeas corpus writs. Not a single, other judge who was there (Tom Price was absent due to illness) agreed with Meyers - even Sharon Keller, from whom I expected greater hostility to the new law. All but Meyers agreed the Legislature had created a legitimate, new ground for habeas relief. But judges were less convinced that legislative history supported the idea that the Lege intended the case to cover cases like Robbins. Your correspondent was quoted in Malisow's story arguing that they did:[Robbins' attorney Brian] Wice maintains that the new statute was passed specifically with the Robbins case in mind. Scott Henson, who writes the excellent criminal justice blog Grits for Breakfast, and who has been following the Robbins appeals, agrees. Henson tells us in an email that when the new statute was being considered in 2011, legislators heard from the only opposition: the Harris County District Attorney's Office. "Their position previously had been that the law was unnecessary, that the CCA would never sustain a conviction based on erroneous science," Henson writes. "But [the 2011 Robbins decision], which came out just after the 2011 session, proved they would (or at least five of them would) and it's what made [the Harris County D.A.'s Office] back off their opposition."Indeed, the behind-the-scenes discussions about this bill with the Harris DA were principally about the Robbins decision. It was the main outlier that flew in the face of that office's position the prior two sessions. In light of Robbins, the Harris DA's Office agreed to back off their opposition in exchange for two changes: They wanted the standard for relief changed from it being "reasonably probable" that the jury wouldn't have convicted to saying an applicant must prove the jury wouldn't have convicted by a "preponderance of the evidence." And they insisted that the law say new evidence must "contradict" scientific testimony presented by the state at trial rather than merely "discredit" it. (See the text of the new statute, CCP 11.073, for yourself.)In prior sessions, the Harris DA wouldn't even discuss the bill's details because they said "false testimony" was already ground for habeas relief based on a due process violation. Essentially, they agreed with Judge Elsa Alcala's dissenting opinion (pdf) in Robbins that "The fact that a witness acknowledges a mere possibility of an alternative hypothesis is not a failsafe escape for due process violations." Like Alcala, they'd suggested that "The Supreme Court has disallowed this technical splicing of the truth to avoid due process violations. In evaluating whether evidence is false, it has focused on whether the testimony, taken as a whole, gives the jury a false impression." In Robbins, though, a bare majority disagreed, finding that the mere possibility of guilt was sufficient to uphold the conviction, even though Dr. Moore's opinion was "beyond a reasonable doubt, that she does not know the cause and manner of death," as Alcala put it. Once and for all it had been demonstrated that the CCA would not grant relief just because the state secured a conviction based on false scientific testimony.There were other cases, certainly, that demonstrated the court's confusion and the law's inadequacy with regard to how habeas law should handle junk science presented by the state at trial. As I wrote in 2013 legislative testimony in my role as Policy Director for the Innocence Project of Texas: The issue [also] came up in Ex Parte Henderson (2012), [in which] five judges agreed to grant Cathy Lynn Henderson a new trial in a per curiam opinion, but no single interpretation of the law could gain more than four votes on the court, meaning at present there is no clear, agreed upon theory regarding how and why relief may be granted. Such division on the court speaks to a lack of clarity in the law and requires a legislative solution. Henderson is one of a series of recent cases in which a divided court struggled to overcome this glaring gap in Texas habeas law. Both Judge [Cathy] Cochran and dissenters in Henderson agreed that Texas’ current habeas corpus statute lacks clarity regarding how to react when critical scientific evidence supporting a conviction has been discredited. Judge Barbara Hervey, a dissenter who was a member of the Timothy Cole Advisory Panel [which recommended the change in the law], believes Texas habeas law at present simply provides no recourse for such defendants: “Something is missing here,” she wrote. “I cannot find a ground upon which relief should be granted.” Judge Cochran and four other judges thought the law was clear enough to grant a new trial. But she agreed that the “case does not fit neatly into our habeas statute or our actual-innocence jurisprudence.”Whitmire's bill, my testimony argued, "fills the gap in habeas corpus law that Judge Hervey suggested needs filling, establishing a clear process and standard by which such cases will be evaluated and habeas relief granted." Whether or not Judge Meyers approves, the new law created a new ground for habeas relief separate and apart from the court's "actual innocence" and "false evidence" jurisprudence.Brian Wice told the CCA that "forensic experts are the new high priests of the courtroom" - a characterization that, while flamboyant, isn't far off the mark. And like any state-sanctioned religion, priests blessed with the imprimatur of government are more likely to be accepted by jurors than experts hired by the accused. A couple of judges on the bench noted that juries are more likely to view state's experts as objective and defense experts as mere hired guns, which is what prosecutors argued to discredit Robbins' expert witness at trial. That's why the new law allows relief if new evidence wasn't available to the defendant at the time (in this case, Dr. Patricia Moore's recantation) and "contradicts scientific evidence relied on by the state at trial." Even if contradicted by defense experts, jurors venerate forensic testimony put on by the government to a far greater extent, particularly when they have no sound basis to personally judge disagreements by dueling experts.I have no idea how the CCA will rule on Neal Robbins' latest writ. After the oral arguments, it would be difficult to count to five votes in either direction and Judge Price, a possible swing vote, wasn't there to participate in the discussion. But if the issue comes down to legislative history, they'd be ruling in error if the court decides the Robbins ruling played no role in pushing Whitmire's bill over the hump. From my perspective - and I was as closely involved as anybody - it wouldn't have passed if Judges Cochran and Alcala had prevailed in the court's 2011 Robbins decision.
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