Posted on July 06, 2018 in Criminal Defense

Possession of Weed:

Under current Maryland law, the possession of up to 10 grams of marijuana has been decriminalized since 2014. Proposed legislation in the Senate would decriminalize possession of an ounce, about 28 grams. But this has not passed yet. Decriminalizing it makes it a civil offense, meaning that it is treated more like a traffic ticket with a $100 fine.

Possession over 10 grams but less than 50 lbs is currently a misdemeanor punishable by up to one year in jail or a $1,000 fine. Most people do not go to jail for possessing marijuana as a first-offender. However, the probation can be onerous, and you could be required to do both drug treatment and drug testing.

Possession of 50 lbs or more is considered a felony with a possible penalty of up to 5 years or a $100,000 fine.

Possession With Intent to Distribute, also known as PWID

Possession with intent to distribute less than 50 lbs is a felony with a punishment of up to 5 years imprisonment and a fine of up to $15,000. More than 50 lbs and the punishment is up to 5 years imprisonment and a fine of up to $100,000. Possessing marijuana with the intent to distribute near a school is a felony punishable by imprisonment up to 20 years and fine up to $20,000. If an offender has previously been convicted of possession with intent to distribute, there is a mandatory minimum sentence of 2 years.

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 Posted on June 01, 2018 in Criminal Defense

Dozens of mentally ill men and women who have been charged with crimes are languishing in jails across Maryland despite court orders to send them to state hospitals for evaluation and treatment.

The state Department of Health and Mental Hygiene does not have enough beds or staff to treat new patients, officials say. The shortage comes as 80 percent of those admitted to such facilities are arriving via the criminal justice system.

Union officials blame the shortages on what they call the state’s cost-saving policy of pushing care of the mentally ill into the private sector.

The state’s psychiatric inpatient capacity declined from about 3,000 beds in the 1980s to about 960 now, a squeeze the state’s top health official calls a crisis.  "Currently, all of the in-patient facilities operated by DHMH are full, and in fact, our system has been consistently over census for the past year," Maryland Health Secretary Van T. Mitchell wrote to a Prince George’s County judge in April. "The implications of this for the patients and staff in our facilities are grave: Operating over census means we are at risk of not having adequate staff to maintain a safe patient-care environment or to provide quality care."

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 Posted on May 31, 2018 in Criminal Defense

The Fourth Amendment normally requires police to have a warrant to conduct a search. But one exception to that general rule, known as the "automobile exception," was at the heart of this case: It allows police to search a car without a warrant if the car is "readily mobile" and they have probable cause to believe that it contains evidence of a crime. But the justices today ruled that the exception does not justify an intrusion on the "curtilage" of a home – the area immediately surrounding the house, where residents expect privacy.

In a near-unanimous decision authored by Justice Sonia Sotomayor, the court began by making clear that the driveway where Collins’ motorcycle was parked was part of the curtilage protected by the Fourth Amendment. The court then explained that the justification for the automobile exception doesn’t consider a resident’s privacy interest in his home and its curtilage at all; rather, the rationale rests on the twin ideas that cars can easily be moved and are subject to regulation simply by virtue of being on the roads. None of the Supreme Court’s cases, the court continued, indicates that the automobile exception allows a police officer to enter the home or its curtilage without a warrant to search a vehicle – if anything, the court has emphasized the need to treat "automobiles differently from houses." "Given the centrality of the Fourth Amendment interest in the home and its curtilage and the disconnect between that interest and the justifications behind the automobile exception," the court concluded, "we decline Virginia’s invitation to extend the automobile exception to permit a warrantless intrusion on a home or its curtilage."
The court also rejected Virginia’s fallback argument, which would allow police officers to enter some parts of the curtilage (such as the driveway) without a warrant to search a car, but not the house or other structures inside the curtilage, such as a garage. Such a rule, Virginia suggested, would give police officers a bright line to use when determining whether they need a warrant.
The court dismissed that idea, noting that officers have long made such evaluations regularly before executing searches. "Virginia provides no reason to conclude that this practice has proved to be unadministrable, either generally or in this context." Moreover, the court added, Virginia’s proposed rule would mean that people who can afford garages would receive more protection under the Constitution than those who cannot.

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 Posted on March 01, 2018 in Divorce

Consult an attorney. At Diamant Gerstein, LLC, we take time to consult with clients, one-on-one and go through all of their options. This is high on the to-do list! No two cases are alike.

Become informed about your legal rights and responsibilities. For example, suppose you decide to take the children and live at your parents’ house until the divorce is final. From a legal point of view, moving to your parents’ home, even temporarily, could be a huge mistake.

Copy documents. I tell clients this all the time. Check the mail, copy tax returns, get a hold of W-2s, know how much is in your retirement account and his/hers.
Go through household files and make copies of everything you can find: tax returns, bank statements, check registers, investment statements, retirement account statements, employee benefits handbooks, life insurance policies, mortgage documents, financial statements, credit card statements, wills, Social Security statements, automobile titles, etc. If your spouse is self-employed, it is important to gather as much information as possible about the finances of the business. Make copies of any financial data stored on your home computer.
Inventory household and family possessions.
List the major items: furniture, artwork, jewelry, appliances, automobiles, etc. Don’t forget to check the storage areas of your home and your safe deposit box for valuables.
(Being aware of all the marital assets is important when it comes time to split up the property.)
Know the household budget and expenses.
If possible, go through your check register for the past year and write down each utility, mortgage, and other household expense for each month. Keep track of the cash you spend on a daily basis so that you’ll be able to ascertain your monthly cash expenditures also.
Determine how to manage the family debt. The divorce court does not divide debt unless it is attached to real property such as a home equity line of credit, a car note, etc.  Credit card debt doesn’t get divided by the court.
If possible, determine the family debt and consider paying it down before divorce. Allocation of marital debt among divorcing spouses is one of the most difficult items to negotiate. While taking stock of debt, determine whether any of the debt was incurred by one spouse or the other prior to the date of marriage. This would be considered "non-marital debt" and it belongs to the spouse who incurred it.
Find out exactly what your spouse earns. A divorce to-do:
If your spouse earns a regular salary, it is easy to look at a pay stub; if your spouse is self-employed, owns a business, or receives any portion of income in cash, do your best to keep track of the money flowing in for several months.
(If you think your spouse is trying to conceal money from employment, you may want to hire a forensic accountant to track where the money is going and what is being earned).

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 Posted on January 19, 2018 in Divorce

There are often many myths associated with divorcing. Below, please find some common myths and commentary.

1.  The Mom will always get custody of the kids.  Nope! Custody or access time is a continuum and absent a horrible situation both parents will see the child.  If one parent withholds the child, custody can secede to the other side.  Generally, the parent who has the child for more than 65% of the overnights (256/365) is said to have primary physical custody. If the other parent has more than 35% of the overnight (128+) then the parents share physical custody. The Court determines the custody arrangement based on all sorts of factors to include parent work schedules, geography and logistics, past parenting, communications, involvement with school, doctors, sports, etc.
2. The Court will "Ding" Me for Sleeping with Someone Else while Married.. Not really.  If a spouse is cheating but not involving the children in any way, not doing it in a way that is designed to humiliate the faithful spouse, and not spending a lot of money on the paramour, then the adultery will not significantly affect custody or the division of marital property. In Maryland, if you can prove adultery you can get a divorce without any waiting period at all, and technically you could live in the house during the divorce. Still, adultery is a crime subject to a $10 fine in Maryland and it may reduce the amount of alimony that will change hands.
3. My kids are going to decide who they want to live with.  Not exactly.  While teenagers will "think with their feet," and stay with whomever they want, in Maryland, Judges do not let kids pick who they live with, and Judges do not like it when a parent puts a child in that position. That in and of itself could be the main reason someone loses primary custody. The older the child is the more his or her choice may be considered but generally Judges want the child to be represented by a Best Interest Attorney (BIA) so the Court can hear the child’s preference and the reasons for that preference.  Judges don’t like kids testifying in court.  Once your child reaches age 16, he/she can file his own petition for custody/emancipation.

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 Posted on August 11, 2017 in Family Law

If you follow legislative updates as to domestic law in Maryland, some of the below cases may be helpful to read:

1. Polygraph tests don’t come into evidence. They are unreliable.   In re. A.N., B.N., and V.N., 226 Md. App. 283, 127 A. 3e 644 (2015).
During a permanency planning hearing for a CINA case, the trial court made a determination that relied upon a recommendation that included evidence of a failed polygraph test. Permanency planning hearings, unlike divorce hearings, are given significant flexibility regarding the type of allowable evidence. In Maryland, polygraph tests are not typically admissible as evidence. The Court of Special Appeals ruled that even with flexible evidence rules, polygraph test results are inadmissible.  They lack reliability.

2. No automatic rights to paternity testing. Davis v. Wicomico County Bureau of Support Enforcement, 222 Md. App. 230, 112 A.3d 1024 (2015).
Not sure whether a specific man is the father of your child? A party only has a right to a paternity test in a proceeding to set aside or modify a "Declaration of Parentage." If the contesting party allows the 60-day recession period to lapse, the affidavit can only be challenged on the basis of fraud, duress, or material mistake of fact. After the 60-day period, excluding the previously mentioned challenges, the putative father forfeits his right to contest paternity by requiring a blood or genetic test.

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 Posted on August 11, 2017 in Alimony

Will I get alimony? For how long? These are questions often asked of a divorce lawyer.  See comment from a recent Court of Special Appeals case on the matter:

A trial court has broad discretion in awarding alimony, which may include both
rehabilitative and indefinite components." Innerbichler v. Innerbichler, 132 Md. App.
207, 246 (2000). Family Law § 11-106(b) of the Maryland Code lists "all the factors" a
court is required to consider for "a fair and equitable award," including:

(1) The ability of the party seeking alimony to be wholly or partly self-supporting; 
(2) The time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment; 
(3) The standard of living that the parties established during their marriage;
(4) The duration of their marriage;
(5) The contributions, monetary and nonmonetary, of each party to the well-being of the family; 
(6) The circumstances that contributed to the estrangement of the parties;
(7) The age of each party;
(8) The physical and mental condition of each party;
(9) The ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony; 
(10) Any agreement between the parties;
(11) The financial needs and financial resources of each party, including:

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 Posted on April 11, 2017 in Criminal Defense

I am asked very often whether there is a lawsuit remedy for people posting things on Facebook and Instagram that is defamatory.  Here is the low-down on the law in Maryland about defamation:

In Maryland, defamation of character falls into two categories: libel and slander. Libel is a written, including signs or pictures, defamation. Slander is oral, involves speech. "A statement that is merely unflattering, annoying, embarrassing, or that hurts only the plaintiff’s feeling is not considered defamatory." R. Sack, Libel, Slander and Related Problems 45 (1980).

These are the elements necessary for a plaintiff to prove a case of defamation in Maryland:

"(1) that the defendant made a defamatory statement to a third person, (2) that the statement was false, (3) that the defendant was legally at fault in making the statement, and (4) that the plaintiff thereby suffered harm.  A defamatory statement is one ‘which tends to expose a person to public scorn, hatred, contempt or ridicule, thereby discouraging others in the community from having a good opinion of, or associating with, that person.’" Offen v. Brenner, 402 Md. 191, 935 A.2d 719 (2007), quoting Smith v. Danielczyk, 400 Md. 98, 115, 928 A.2d 795, 805 (2007).

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 Posted on March 20, 2017 in Divorce

I am often asked, "How much am I going to have to pay in alimony?" Well, the answer is: "It depends." And, it’s totally up to the Judge hearing your case.

Maryland law has several different types of alimony: pendente lite, which is alimony awarded for a specific time period, rehabilitative alimony, and indefinite alimony (permanent).

Alimony Pendente Lite

Pendente lite alimony is an award that maintains the status quo of the parties so that the wife or husband doesn’t suffer any financial hardship while they are waiting for their divorce proceedings to be finalized.  There are four factors that must be proven before a pendente lite award will be granted:

• Proof of the marriage existing,
• Proof that a divorce proceeding is pending (meaning you have already filed for divorce)
• Proof that the spouse requesting the alimony needs the money,
• Proof that the other spouse has the ability to pay money to the receiving spouse.

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 Posted on January 06, 2017 in Criminal Defense

Maryland Assault Laws

In Maryland, assault is defined as an attempt to touch someone else without their consent. Usually, the touching in question is an act of violence, such as a punch or threatening someone with a weapon.

One of the most serious forms of assault in Maryland is known as first-degree assault. First-degree assault occurs when someone causes serious physical injury to another person. Under Maryland criminal law, serious physical injury means that the victim could have died or was permanently disfigured or disabled due to the altercation.

First-degree assault is a very serious crime, and it comes with a very serious penalty. Specifically, if you are convicted of first-degree assault, a judge may sentence you to a maximum of 25 years in prison.

A lesser assault charge is known as second-degree assault. In Maryland, second-degree assault is defined as causing someone physical injury. This excludes minor injuries.

Although less serious than first-degree assault, second-degree assault still comes with a fairly stiff penalty. In fact, if convicted, you can face up to 10 years in prison and a $2,500 fine.

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