Under Maryland law, one does not actually have to have prohibited items in their hand, or on their person, to be found to have possessed it. As attorney Eric T. Kirk will tell you, constructive possession is demonstrated when one exerts sufficient dominion and control over an object, so as to be said to possess it, even though they don’t actually have it on or about their person.

Can I Be Charged With CDS Possession in Baltimore if the Drugs Are Not Mine?

A person who has both the ability and intent to exert control of an item is said to constructively possess it, even if it is not in their actual possession. The Maryland Court of Appeals found that being present in a home that contains contraband, when coupled with other factors, is enough to sustain a conviction for possession of marijuana, even if the Defendant is a guest in that home. In that case, police officers executed a warrant at a home and found the defendant, along with four other people sitting at a table. In the center of the table was an ashtray with a burning blunt in it. Officers also found other zip lock bags of marijuana in that same room, in a coat pocket.

The Defendant did not own the house, and he did not live there. The jacket was not his, and there was no evidence that Smith actually handled the blunt.

The Court of Appeals stated that Smith’s proximity to the contraband, obviously marijuana, and the fact that it was in his view and “grab area” supported, beyond a reasonable doubt, that Smith possessed that Marijuana.

I extend a no-cost, no-obligation case analysis and personal, confidential conference and strategy session to all prospective clients. If you have been accused of a crime, it is vital that you act quickly to safeguard your freedom. You must speak to an experienced criminal defense attorney near you.  Contact me today. 410 591 2835, or simply complete the online form at the bottom of the page.

A binding plea agreement is like a contract. If the prosecutor offers something to a criminal defendant in exchange for the plea, and the defendant accepts, an agreement is formed. Here is one court has said regarding an agreed plea bargain.
Must Binding Plea Bargain Agreements be Honored By Judge
“A plea agreement is, of course, a contract between a criminal defendant and the State in which each seeks to gain a benefit and, in return for such benefit, each agrees to pay a price. It is a very special contract,….. the entire package may be submitted to a criminal court for its approval and its subsequent enforcement. If it should then be the enforcing authority (to wit, the court) that commits a breach of the contract, what evenhanded justice requires is that each of the primary contracting parties….is equally entitled to seek a remedy” 1

As attorney Eric T. Kirk will tell you, if the Judge agrees to go along with what the prosecutor and defendant have agreed to, a process called “binding”, and the Judge commits himself or herself to that disposition, the defendant is entitled to have the agreed upon sentence imposed, and to have it enforced if it is not imposed.

I extend a no-cost, no-obligation case analysis and personal, confidential conference and strategy session to all prospective clients. If you have been accused of a crime, it is vital that you act quickly to safeguard your freedom, and immediately speak to an experienced criminal defense attorney near you. Contact me today. 410 591 2835, or simply complete the online form at the bottom of the page.

Legal arguments are available to the skilled legal practitioner. Criminal defense attorneys frequently argue that the identification, whether made in court or out-of-court, should not be admitted in evidence, or heard by the jury. As attorney Eric T. Kirk will tell you, when the defense shows that the methods used by law enforcement were so suggestive that they created a substantial risk of misidentification, the state’s attorney must prove by clear and convincing evidence that the identification of the suspect was nevertheless reliable, in spite of the misconduct. If the state cannot show this, the jurors will not be allowed to hear the identification testimony. But beyond any technical rules of preclusion, solid scientific evidence suggests that “eyewitness” identification evidence is just not really that reliable.

 

The U.S Supreme Court has noted that eyewitness misidentification has led to the conviction of more innocent people than any other single factor, and perhaps led to the conviction of more innocent people than all other causes combined.

This stands in stark contrast to what most people think about the certainty of a person showing up in court and pointing out the defendant. The advent of accepted, economically and practicably feasible DNA testing has both, to some extent, lessened the need for the theatrical pointing-of-the-finger, and highlighted a number of cases where the eyewitness just got it wrong. See also:

https://www.ncsc.org/sitecore/content/microsites/trends/home/Monthly-Trends-Articles/2017/The-Trouble-with-Eyewitness-Identification-Testimony-in-Criminal-Cases.aspx

https://www.nij.gov/topics/law-enforcement/investigations/eyewitness-identification/Pages/welcome.aspx

I extend a no-cost, no-obligation case analysis and personal, confidential conference and strategy session to all prospective clients. If you have been accused of a crime, it is vital that you act quickly to safeguard your freedom, and immediately speak to an experienced criminal defense attorney near you. Contact me today. 410 591 2835, or simply complete the online form at the bottom of the page.

Can the Police Just Set up Roadblocks for Sobriety Checkpoints

In MICHIGAN DEPT. OF STATE POLICE v. SITZ, 496 U.S. 444 (1990), the Supreme Court approved the use of sobriety checkpoints as an aid to apprehend those in violation the DUI laws. The subject checkpoint was used by Michigan. “[T]he Michigan State Police Department and its director, established a highway sobriety checkpoint program with guidelines governing checkpoint operations, site selection, and publicity. During the only operation to date, 126 vehicles passed through the checkpoint, the average delay per vehicle was 25 seconds, and two drivers were arrested for driving under the influence of alcohol”. Attorney Eric T. Kirk says the Court determined that on these facts:

Because “checkpoints are selected pursuant to guidelines, and uniformed officers stop every vehicle [limiting discretion in who was stopped]” the checkpoint survived a challenge under the Fourth Amendment.

Note that in Delaware v. Prouse, the U.S Supreme Court “disapproved random stops made by Delaware Highway Patrol officers in an effort to apprehend unlicensed drivers and unsafe vehicles…” observing “that no empirical evidence indicated that such stops would be an effective means of promoting roadway safety and….that the random stops involved the kind of standardless and unconstrained discretion [which] is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent.”  37 states conduct sobriety checkpoints.13 states do not. “Some states prohibit them by state law or Constitution (or interpretation of state law or Constitution). Texas prohibits them based on its interpretation of the U.S. Constitution. Missouri law prohibits funds from being spent on checkpoint programs.”  Maryland conducts DUI checkpoints 2, and they are considered legal under Maryland law.

1https://www.ghsa.org/state-laws/issues/sobriety%20checkpoints

2 See e.g. https://news.maryland.gov/msp/2018/11/15/state-police-to-hold-sobriety-checkpoint-2/

Standing accused and on trial in a DUI case is a life-altering experience. I extend a no-cost, no-obligation case analysis and personal, confidential conference and strategy session to all prospective clients. If you have been accused of a crime, it is vital that you act quickly to safeguard your freedom, job, and good name.

Contact me today. 410 591 2835.

“They took my car/money/gun/house!” Well, “they” is law enforcement. And yes, they can, and they do. Frequently. But that does not mean you, as a property owner are without recourse. If you find yourself minus a car, or stack of cash, you should consult with a seasoned attorney to find out what you can do to get it back. As Attorney Eric T. Kirk will tell you.

The rationale for the laws is, as a famous Baltimore jurist once said, “ain’t nothing good that comes of guns and drugs”.

Maryland law provides that essentially any property used in connection with narcotics trafficking may be seized by law enforcement, and forfeited to the State. Section 12-102 of the Criminal Procedure Article -Property subject to forfeiture- provides:

Can the Police Keep Your Money or Your Car By Saying its Drug Related?

“The following are subject to forfeiture: (1) controlled dangerous substances manufactured, distributed, dispensed, acquired, or possessed in violation of … law; (2) raw materials, products, and equipment used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting a controlled dangerous substance…; (3) property used or intended for use as a container for property described in item (1) or (2) of this subsection; (4) ….. conveyances, including aircraft, vehicles, or vessels used or intended to be used to transport, or facilitate the transportation, sale, receipt, possession, or concealment of property described in item (1) or (2) of this subsection; (5) books, records, and research, including formulas, microfilm, tapes, and data used or intended for use in violation of the Controlled Dangerous Substances law; (6)…. money or weapons used or intended to be used in connection with the unlawful manufacture,

Can the Police Keep Your Money or Your Car By Saying its Drug Related?

distribution, dispensing, or possession of a controlled dangerous substance or controlled paraphernalia; (7) drug paraphernalia….; (8) controlled paraphernalia ….; (9) the … balance of the proceeds of a sale by a holder of an installment sale agreement under § 12-626 of the Commercial Law Article of goods seized under this subtitle; (10) …. real property; and (11) everything of value furnished, or intended to be furnished, in exchange for a controlled dangerous substance in violation of the Controlled Dangerous Substances law, all proceeds traceable to the exchange, and all negotiable instruments and securities used, or intended to be used, to facilitate any violation of the Controlled Dangerous Substances law.”

Not surprisingly, money is the most common property seized pursuant to this section.

The forfeiture law also provides that “[m]oney or weapons that are found in close proximity to a contraband controlled dangerous substance, controlled paraphernalia, or forfeitable records of the importation, manufacture, or distribution of controlled dangerous substances are contraband and presumed to be forfeitable”.

Similar laws are in effect throughout the county, and present the potential for abuse. A Washington Post investigation of the government’s efforts. “There have been 61,998 cash seizures made on highways and elsewhere since 9/11 without search warrants or indictments through the Equitable Sharing Program, totaling more than $2.5 billion. State and local authorities kept more than $1.7 billion of that while Justice, Homeland Security and other federal agencies received $800 million. Half of the seizures were below $8,800”.1

If a claimant can establish another, legitimate, source of the money, he or she may be able to rebut this presumption and regain their property.If you’ve had money property seized under this law, you may want to consult a seasoned lawyer. A lawyer can assist you in getting some, or all, or your property returned to you.

There are other methods to challenge the legality of the action as well. Consult a Baltimore asset seizure attorney to get your property back. I offer a free legal analysis and legal opinion on a potential client’s likelihood of regaining their property. If you have had your money, car, or house taken by the State, call me.

A seasoned DUI / DWI attorney Attorney Eric T. Kirk will tell you, the crime and the consequences are the same as DUI, except, with a few notable exceptions, you’re in a boat, not a car. If you are operating a boat under the influence, you are in a lot of trouble.  The standards and legal principles that govern boating while under the influence [BUI] are essentially the same as those that dictate the outcome of a Maryland driving while under the influence charge.

The legal limit is the same [.08 BAC or higher]. The penalties are the same.

Just as Maryland law [as well as the respective law of all states] bans driving a car while under the  influence of alcohol or drugs, Maryland Law [as well as the respective law1 of all states] prohibits the operation or attempted operation of a boat while a person:

What is Boating Under The Influence in Maryland?

  • Is impaired.

  • Is under the influence of alcohol.

  • Is so far under the influence of any drug, combination of drugs, or combination of drugs and alcohol that the person cannot operate a vessel safely, OR

  • Is under the influence of any controlled dangerous substance, as defined in the Digest of Criminal Laws, Natural Resources Article 8-738.

[http://dnr.maryland.gov/boating/Documents/recrea$500 fine ionvessels.pdf’]

Similarity Between Maryland DUI and Maryland BUI Laws

Practiced Maryland DUI / DWI attorneys have often been able to successfully beat a charge, arguing that act of pulling over the motorist, the “stop” of the motorist, was “illegal” [i.e. not based on reasonable suspicion that criminal activity was afoot, or that a rule of the road was violated]. These arguments are often premised on the contention that the observations of the officer did not support a reasonable inference that the operator was impaired. In that regard, the National Highway Traffic Safety Administration publishes a list of observations, or factors, that it describes as a “set of behaviors that can be used by officers to detect motorists who are likely to be driving while impaired.” NHTSA contends that the list is scientifically supported, and predicts those that may be operating with a varying, but high degree of accuracy.

Those factors include: “Weaving, Problems Maintaining Proper Lane Position, Weaving across lane lines or a lane line, Swerving, Turning with a wide radius, Drifting, Almost striking a vehicle or other object, Speed and Braking Problems, Stopping problems (too far, too short, or too jerky), Accelerating or decelerating for no apparent reason ,Varying speed, Slow speed (10+ mph under limit), Vigilance Problems, Driving in opposing lanes or wrong way on one-way, Slow response to traffic signals, Slow or failure to respond to officer’s signals, Stopping in lane for no apparent reason, Driving without headlights at night, Failure to signal or signal inconsistent with action Judgment Problems, Following too closely, Improper or unsafe lane change, Illegal or improper turn (too fast, jerky, sharp, etc.), Driving on other than the designated roadway, Stopping inappropriately in response to officer, Inappropriate or unusual behavior (throwing, arguing, etc.), Appearing to be impaired, Difficulty with motor vehicle controls, Difficulty exiting the vehicle, Fumbling with driver’s license or registration, Repeating questions or comments, Swaying, unsteady, or balance problems, Leaning on the vehicle or other object, Slurred speech,  Slow to respond to officer or officer must repeat, Providing incorrect information, changes answers, Odor of alcoholic beverage from the driver, Driving without headlights at night, Failure to signal or signal inconsistent with action.” Source: DOT HS 808 677.

Perhaps not surprisingly, seasoned Maryland DUI defense attorneys have successfully argued that these factors, even when they exist in combination, are fully consistent with innocent behavior, with a cause, if indeed there is a cause, completely unrelated to impairment.  Clearly, these factors have been developed in relation to driving under the influence, but many have equal applicability to a boating while intoxicated scenario. In a DUI case, if this challenge to the “stop” is successful, a court may rule that any evidence obtained as a result of that illegal roadside stop is inadmissible at trial. In a DUI case, that evidence will typically be the officer’s observations, any field sobriety tests, and any breathalyzer or blood alcohol concentration test results. This line of argument may not be available in boating cases. The grounds to stop a boater are not as restrictive, and law enforcement does not need to articulate the same reasons as they would to justify the stopping of a motorist.

Breathalyzer for Maryland BUI Arrestees?

As with Maryland’s DUI laws, Maryland boaters, have likewise given consent to a test for intoxication. Section 8-738 of the Natural Resources Article provides:

“Any person who operates or attempts to operate a vessel on the waters of the State is deemed to have consented, …to take a test…. if the person is detained by a police officer who has reasonable grounds to believe that the person has been operating or attempting to operate a vessel while under the influence of alcohol, while impaired by alcohol, while so far impaired by any drug, any combination of drugs, or a combination of one or more drugs and alcohol that the person could not operate the vessel safely, or while impaired by a controlled dangerous substance.”

The test referenced is likely a breathalyzer that would be used in a Maryland DUI investigation. In the absence of an accident, the boater alleged to be intoxicated cannot be compelled to submit to any testing. Here again, there exists another similarity with Maryland’s DUI cases. If the boater is subsequently charged with boating while intoxicated, “on receipt of a sworn statement from the officer that the person was requested to take a test and refused, the court may, on conviction and in addition to other penalties, prohibit the person from operating a vessel on the waters of the State for up to 1 year.” See 8-738 of the Natural Resources Article. The Court can also prohibit the person from operating a boat for up to a year where the BAC was .08 or higher. Here, there appears to be a dissimilarity between Maryland’s DUI and BUI laws. In the DUI scenario, a refusal to take a lawfully required test leads to an immediate suspension of one’s driver’s license by the MVA. The suspension is an administrative process, and exists independently of, and is indeed separate from the criminal prosecution for a DUI. In the BUI scenario, there does not appear to be an analogous administrative consequence for a failure to submit to testing. In the absence of any penalty for a failure to submit to test in the absence of conviction, it may make little sense to provide the State with evidence upon which a conviction may be premised.

Compelled Testing the Wake of a BUI-Involved Boating Accident

If there is a significant boating accident involving injury, submission to a test can be compelled. Where “a person is involved in an accident while operating or attempting to operate a vessel that results in the death of, or a life-threatening injury to, another person and the person is detained by a police officer who has reasonable grounds to believe that the person has been operating a vessel or attempting to operate a vessel” while under the influence or impaired, that boater can be compelled to submit both a blood test and a breath test. See Section 8-738.1 of the Natural Resources Article.

FN1  Interestingly, although the overwhelming majority of states appear to have adopted a blood alcohol concentration for .08 or more as intoxication per se [i.e. it is conclusively presumed that one with the BAC is impaired and cannot drive, or boat] North Dakota still adheres to the prior .10 BAC standard. See https://gf.nd.gov/boating/safety-regulations#prohibited-operation , and Wyoming  only recently decreased their per se limit from .08 from  the prior .10 standard. See https://oilcity.news/general/2019/07/01/fire-departments-conduct-multi-agency-training-photos/

It is illegal to use a handheld cell phone while driving, at least in Maryland.

Most states have enacted laws that prohibit cell phone use while driving, and in particular “texting” while driving. Maryland is no exception. It is illegal in Maryland to use a handheld cell phone to text, or talk, while driving.

What are the penalties for texting or using a handheld cell phone while driving?

Simple acts may lead to only a ticket. If a crash ensues, the penalties go up, as they do for subsequent offenses. If one violates either of these proscriptions, and an accident ensues resulting in death or serious bodily injury, the penalties are severe: one year in jail, and a $5,000 fine.

Are there other consequences for texting while driving?

The notion of driving while texting or talking on a cell also brings up another, related question pertinent to any accident that fallows this conduct.

Is It Illegal And Negligent to Use A Cell Phone/ Text While Driving?

We’ve discussed in another guide the various measures of damage resulting from Baltimore car accidents. One concept touched upon, that of punitive damages, may be in line for some evolution. Personal injury and accident lawyers in Baltimore, MD Attorney Eric T. Kirk will tell you that punitive damages, designed to punish a defendant, rather than compensate a victim, are rarely awarded in the typical car accident case. Everyone seems to agree, using a cell phone while driving is a bad idea.1 But how bad? In an appropriate case, a skilled personal injury lawyer may successfully argue that texting while driving is such a bad idea, so callous and wanton, that if this conduct causes an accident, an award of punitive damages is warranted.

I’ve handled hundreds of motor vehicle accident claims over the years. I propose an initial legal assessment of a claim and a client conference, all without charge, to anyone who has suffered an injury in any car accident. Contact me today to  begin the process of your financial recovery.

FN1 http://www.mva.maryland.gov/safety/_docs/FY15_Distracted_ProgramAreaBriefCombinedFinal.pdf

Drugs, called “controlled dangerous substances”/ CDS under the law, are illegal. But is a pipe?

Depending on the surrounding environment, any inanimate object could conceivably constitute paraphernalia.

Seasoned criminal defense lawyers in Baltimore Attorney Eric T. Kirk MD know that the definition of drug paraphernalia is not finite. It can be anything. Creative prosecutors have successfully argued that essentially anything can be a delivery facilitator for the consumption of narcotics. A court will look to the circumstances surrounding alleged used and enjoyment of contraband. the  A court or a jury is instructed to consider a variety of factors, in fact, thirteen factors. Some of these include:

  • the presence of residue;
  • are there legitimate uses;
  • expert testimony;
  • prior convictions;
  • proximity to contraband, and
  • whether the owner is a person in the business of selling tobacco.

Possession of paraphernalia is sometimes seen as a throwaway, or fallback charge. One theory is just to charge every possible crime.

What is Considered Drug Paraphernalia?

The other theory is that even there is no conviction for the target offense such as possession or distribution, then at least there would be some penalty for the perceived lesser offense. The reality is, this can be a serious charge. You should care. While a first conviction leads to a fine, a second conviction carries a possible two year jail sentence.

I extend a complimentary meeting to anyone accused of a crime. During this session we will evaluate the evidence, assess the strength of the State’s case, and develop the most effective defenses and mitigation. If you stand accused, contact me today. 410 591 2935.

To convict under this charge, the State must prove, beyond a reasonable doubt, that the defendant recklessly created a substantial risk serious physical injury or death, to another. As with the separate crime of assault, one does not actually have to injure another to be convicted of this crime. As Attorney Eric T. Kirk will tell you.

It is the threat of harm that is the object of these types of statutes, and the gravamen of this offense is not actual harm itself.

I've Been Charged With Reckless Endangerment. What Is That?

While this offense is a misdemeanor, it is nevertheless punishable by five years in prison. Recklessness is not the same as intent. The defendant does not need to know that someone may be harmed, just be aware that harm is a possible outcome, disregard that risk, and engage in some conduct that creates that risk. The offense is complete when the potentially harmful conduct occurs, regardless of whether any harm occurs. In many of these cases, there is no typical victim, at least in the sense of one who suffered harm or loss as a result of the defendant’s conduct.

I offer a no-cost conference to anyone accused of a crime. During this strategy session we will evaluate the evidence, assess the strength of the State’s case, and develop the most effective defenses and explore mitigation. If you stand accused, contact me today. 410 591 2935.

Everyone who has ever bounced a check is not charged with a crime, and bouncing a check, standing alone, is not criminal. Honest mistakes happen. It’s probably a safe bet that everyone with a checking account has likely bounced a check, or come close. That does not mean criminal activity occurred. There are civil remedies available when someone does not make good on a bad check. But the law can punish by criminal sanction the check writer as well. As Attorney Eric T. Kirk will tell you.

Writing a check with the knowledge and intent that it will be dishonored is criminal.

Writing a bad check can come in different varieties. The law deems a check  “bad” if there are insufficient funds in an account, and this occurs when:

What is Considered A Bad Check? Can I Be Charged with a Crime?

  • there are not enough funds to cover the check
  • if that account is closed
  • there are no funds
  • the check is drawn on account that does not exist

It is a crime to issue a check with knowledge of insufficient funds, or that the check will be dishonored. There are other circumstances under which a bad check can land you in some trouble with the authorities well.

I offer a no-cost conference to anyone accused of a crime. During this strategy session we will evaluate the evidence, assess the strength of the State’s case, and develop the most effective defenses and explore mitigation. If you stand accused, contact me today. 410 591 2935.