Criminal Law FAQ
What criminal charges can your firm help me with?
At Diamant Gerstein, LLC, we can help you with any criminal charge you receive, to include any and all traffic tickets, violations of probation, protective orders, peace orders, drunk driving, drugged driving, infractions on college campuses, in dorms, and in federal court. Sharon T. Diamant was a prosecutor for the Montgomery County State’s Attorney’s Office for 10 years. During that time, she prosecuted thousands of crimes, everything from burglary and bad checks, to drunk driving, hit and run, narcotics charges, police misconduct, financial crimes, and sexual offenses against children.
Having been a prosecutor, and knowing how the system works, Sharon can help you figure out your best possible defenses and likely outcomes if you are found guilty. In addition, having been a prosecutor for so many years, Sharon knows how to analyze a criminal case from both angles and can assist a criminal defendant obtain a great result in court and keep any points, fines and jail terms to a minimum.
When should I request or hire an attorney?
Often times, a criminal defendant will wait until a day or two before court to hire an attorney. This is never a good idea. In order to have a criminal defense lawyer have the time needed to review your case, speak with the prosecutor, request all evidence and discovery in your matter, and prepare for court, you should consider hiring an attorney immediately after receiving the tickets in your matter or being arrested. If you cannot afford an attorney, a criminal defendant should go and interview with the Office of the Public Defender right away.
What is the difference between jail and prison?
A jail sentence generally means a sentence of 18 months or less. Such sentences are often served at a local detention center. In Montgomery County, the local detention center is located in Clarksburg, Maryland. A prison term generally refers to a term of imprisonment of more than 18 months. Such sentences are served at prison facilities, which are located in various parts of Maryland, the most notable of which are in Jessup, Maryland and in Baltimore, Maryland.
It should be noted that, at the near-completion of an inmate’s sentence, he or she may be eligible for a work-release program. Programs such as the Pre-Release Center (PRC) in Rockville, Maryland, help offenders prepare for life back in the outside world by providing job training and assistance to offenders who need employment. PRC is an arm of the jail but the inmates are housed in dorms rather than prison cells, and the inmates are encouraged to seek and/or obtain employment during the day, while sleeping at the facility at night. Home passes are available for inmates who have exhibited good behavior.
Can I have a conviction expunged?
If you have a traffic offense, such a drunk driving offense, it cannot be expunged. Traffic offenses do not get expunged in Maryland. However, if you have never been convicted of a traffic offense, you may be a good candidate for probation before judgment. Section 6-220 of the Criminal Procedure Article allows a Court, when in the interest of public safety, to strike a conviction on one’s traffic record, thus eliminating the points and the jail sentence.
If you have been convicted of a criminal offense, the law in Maryland allows you, or your lawyer, to file a Motion for Reconsideration. A Motion for Reconsideration must be filed within 90 days of the conviction date. The motion can be held sub curiae by the court, which means it is not acted upon. Once you have completed your probation, paid restitution owed, any court costs, and completed an alcohol treatment program, drug treatment program, AA meetings, Mothers Against Drunk Driving program, or any of a number of other conditions of probation a judge may order, the court can revisit your conviction and strike it from your record. Once the conviction is stricken, a defendant may move to have the conviction permanently expunged from his or her record.
What is the difference between a peace order and protective order in Maryland?
A peace order is a form of legal protection for anyone who is experiencing problems with an individual, including someone in a dating relationship, a neighbor, a stranger, or anyone else. Peace orders do not covered married people. The Peace Order enables an individual (Petitioner) who wishes to be left alone to ask the Court to order another person (Respondent) to stay away and refrain from any contact with you, to include harassing and offensive contact, and third-party contact.
You can only get a Peace Order against a person if you are not eligible to get a protective order against the person. You can only get a Peace Order if you are a Maryland resident, or if the act covered by the Peace Order law happened in Maryland., choking, shooting, stabbing, shoving);
- An act that places you in fear of serious imminent bodily harm;
- Assault in any degree;
- Rape or sexual offense (including attempts);
- False imprisonment;
- Trespassing; or protection when the courts are closed
When the District Court is closed, a Petitioner may file a Petition for Peace Order (Petition) with the District Court Commissioner’s office. Commissioner offices are open and available 24 hours a day, 7 days a week around the state. A Petitioner can access a Commissioner either by going to any on-duty Commissioner’s office or by telephoning an on-call
At the Commissioner’s office, you will be asked to fill out a form, called a Petition. On this form, you will list the reasons why you are seeking protection. It is important to list every example of physical abuse and threats; the history of harm or harassment caused by the Respondent; any previous or pending actions between you and the Respondent; and the relief you are seeking. If necessary, you may also write on an additional sheet of paper and attach it to the Petition.
After submitting the Petition, you will appear before a Commissioner to explain your reasons for seeking relief. As the person seeking relief, you hold the burden of proof by “reasonable grounds” to establish that an act or incident occurred between you and the Respondent. As such, it is important that you disclose any proof of abuse and/or harassment you may have, including, pictures, police reports, medical records, witnesses, etc.
The Commissioner will forward the Interim Peace Order to law enforcement as well as the District Court. Thereafter, a law enforcement officer will immediately serve the Respondent with a copy of the Interim Peace Order. The Interim Peace Order will expire at the end of the second business day after issuance or, if the District Court is closed on that day, the next day the District Court is open.
You must attend a Temporary Peace Order hearing to extend the length and scope of protection contained in the Interim Peace Order. If the other side has not received a copy (i.e. been served), the court will issue a Temporary Peace Order and serve the Respondent with notice of the final hearing
Whether you received an Interim Peace Order or submitting a Petition for the first time, you will appear before a Judge to explain your reasons for seeking relief. As the person seeking relief, you hold the burden of proof by “reasonable grounds” to establish that an act or incident occurred between you and the Respondent. As such, it is important that you disclose any proof of abuse or harassment you may have, including, pictures, police reports, medical records, witnesses, etc. Unlike a Protective Order, the Judge must also find it likely that the Respondent will commit a similar act in the future.
The Court shall immediately forward the Temporary Peace Order to law enforcement to locate and serve the Respondent with a copy of the order. The Temporary Peace Order will state the day, time and location of a final hearing for a Final Peace Order.
The Temporary Peace Order shall remain in effective for not more than seven (7) days after law enforcement has given the Respondent a copy of the order (i.e. service). If the court is closed on the day the order is due to expire, the order shall remain in effect until the second day on which the Court is open. The Judge may extend the order, as needed, up to thirty (30) days to serve the Respondent or for good cause.
You must attend a Final Peace Order hearing to extend the length and scope of protection contained in the Temporary Peace Order. The Judge will schedule another hearing that will be held in one (1) week.
At the Final Peace Order hearing, if the Respondent has been served with a copy of the Temporary Peace Order but fails to appear for the hearing, you can ask the Judge to enter a Peace Order against the Respondent – this is called a Default Order.
If the Respondent is present at the hearing, the Respondent may or may not be represented by a lawyer. When the case is called, both you and the Respondent will have a chance to tell the Judge what happened which led you to file the Petition. This is a formal hearing and the rules of evidence apply. As the person seeking relief, you hold the burden of proof by “a preponderence of the evidence.” Please note that the Judge who hears the case may not be the same Judge that presided over the Temporary Peace Order hearing, so it is important that you repeat all the reasons why you are seeking relief, this includes submitting into evidence any documentation of the act or incident (police report, hospital records, photographs, etc.) and calling witnesses on your behalf. Be aware that the Respondent or the lawyer will ask you questions in cross-examination and will have an opportunity to disprove your case. Do not be surprised or upset if the Respondent lies about what happened. At the conclusion of the hearing, the Judge will decide whether an act occurred and whether it is likely that the Respondent will commit a similar act in the future.
A protective order is similar to a peace order, except it is good for up to one (1) year. Protective orders are reserved for spouses, certain family situations, and relationships that have ended. They are not for neighbors arguing over landscaping, friends who have had disagreements, and non-family situations.
What is a violation of probation? Do I need a lawyer?
Once you have either pled guilty to an offense or have been found guilty of an offense, you may be placed on a period of probation. This is a time when the Court keeps an “eye” on you to make sure you stay out of trouble and do what the Court has asked of you on probation. Common terms of probation can include: Staying out of trouble, refraining from drinking alcohol and using or abusing drugs, paying restitution and fines to the court or to a victim, attending Alcoholic Anonymous (AA) or Narcotics Anonymous (NA) meetings, attending sessions at the Mothers Against Drunk Driving seminars, and installing an interlock on your car. After the recent death of Montgomery County police officer Noah Leotta, many are pushing for stricter laws concerning drunk driving, to include ignition interlock on all first-offenders’ vehicles. The name of the law is “Noah’s Law.”
If you do not do every condition asked of you on probation, you may be charged with a violation of probation. Probation officers are not your friends. They are employed by the State of Maryland to supervise offenders and assure that offenders are in compliance with the Order that a Judge has passed.
If you do not do everything asked of you on probation, a probation officer will file a violation of probation and file it with the Court. You will receive a court date requesting you answer to the charges, or the allegations, your probation officer has made. Often times, a violation of probation can result in additional jail time, additional fees, an extension of probation, and other punishments. It is very important you do not attend a violation of probation hearing without an attorney.
Are children treated as adults? What are juvenile offenders?
The juvenile system is a totally separate and unique system from adult court. In the juvenile court, the accused is not a defendant. Rather, he or she is a respondent. The goal of the juvenile court is to rehabilitate a child rather than to label he or she as a criminal. The juvenile offender timeline is vastly different than the adult timeline. While an adult must be tried for a criminal offense within a certain period of time, known as a “Hicks Date,” a juvenile offender must be brought to trial, called “adjudication,” very quickly. The juvenile court retains jurisdiction over a juvenile offender up to and including his or her twenty-first birthday. Because of this, he or she may stay under the watchful eye of the Court and the Department of Juvenile Services (DJS) for years.
Juvenile offenders are not “jailed.” They may be sent home with an ankle bracelet, known as home electronic monitoring. They may reside at a group home, or a group facility. In extreme cases of violence, drug abuse, runaways, and incorrigible children, a child may be sent out-of-State to live at a lockdown facility where he or she has access to schooling, counseling and other resources offered to the juvenile offender.
The juvenile’s offender record is sealed and is not available for public knowledge. As a former prosecutor, Sharon T. Diamant handled some of the County’s worst juvenile sexual offenders. One of said offenders formed the basis for what ultimately because a sexual offender registry for juvenile sexual offenders.
I got a citation for having marijuana. I heard that is isn’t illegal to have marijuana in Maryland. What is the law on this?
Civil, not criminal, penalties
In Maryland, possession or use of less than 10 grams of marijuana is not a criminal offense. Possession or use of up to 10 grams of marijuana is still illegal, however, and carries civil penalties.
Fines for possession of small amounts of marijuana
Because it is not classified as a crime, possession of up to 10 grams of marijuana does not result in arrest, jail time, or a criminal record. Possession or use of marijuana is not legal, but in these cases involving small amounts of marijuana, the penalties are civil in nature.
|Penalties under the new law|
|First offense||Fine of $100|
|Second offense||Fine of up to $250|
|Third (or later) offense||Fine of up to $500|
Court appearances and drug treatment
Under the new law, even though the possession of up to 10 grams of marijuana is not a criminal offense, violators who are under the age of 21 must appear in court and may be ordered to drug treatment. Violators who are 21 or older must appear in court after a third offense, and may be ordered into drug treatment.
I was arrested for drunk driving/DUI/DWI. What do I do?
You need to hire a lawyer. Drunk driving is really serious. Being charged with driving under the influence (DUI) is a serious infraction. It means, among other things, that your blood alcohol concentration (BAC) posted at a level of 0.08% or higher. You can be sentenced:
- License revocation: Up to 6 months.
- Fine: $1,000
- Imprisonment: Up to 1 year
- 12 points on your license
- License revocation: Up to 1 year. Required Ignition Interlock Device
- Fine: $2,000
- imprisonment: Mandatory minimum of 5 days. Maximum 2 years
- 12 points on your license
- Mandatory participation in an alcohol abuse assessment and program.
You can be charged for DWI if your BAC is 0.07% or higher:
In many cases, people who end up on the lower end of the BAC spectrum but fail miserably on a field sobriety test end up with this charge. Officer judgment is a major factor.
- License suspension: Maximum 60 days.
- Fine: $500
- Imprisonment: Up to 2 months
- 8 points on your license
- License suspension: Maximum 120 days.
- Fine: $500
- Imprisonment: Up to 1 year
- 8 points on your license
Penalties go higher if you have a passenger who is a minor or if you are facing a third charge.
In addition to the possible criminal charges above you will also face penalties with the Maryland Motor Vehicle Administration for failing or refusing to take a chemical test. You have the option to request a hearing with the Office of Administrative Hearings if you believe you can show cause as to why your license should not be suspended. You must request a hearing within 10 days of receiving a order of suspension. The fee to request a hearing is $150. You will be notified of the date and time of your hearing.
If you do not prevail at the hearing or do not request one you will have your license suspended for:
Refusing a Chemical Test:
- License suspension: 120 days or IID for 1 year (1st offense)
- License suspension: 1 year (2nd offense)
Failing a Chemical Test:
- License suspension: 45 days (1st offense)
- License suspension: 90 days (2nd offense)
Ignition Interlock Device
Maryland requires anyone convicted of driving while impaired to install an Ignition Interlock Device (IID) on their vehicle as a condition of reinstating their license. If you are required to have an IID you must have it installed by an approved dealer. You will pay a fee for the installation and a monthly monitoring fee.
If your license was revoked due to a DUI or DWI offense, you will need to attend an Alcohol Education Program before applying for a new one. The program is designed to steer you clear of any future incidents involving intoxicating beverages and cars―unless from a seat in a taxi or bus.
The course also takes a physiological route and analyzes each participant to determine whether there is a more serious problem involved with abuse or dependency. If you fall into this category the division will require you to undergo more intensive therapy in the form of a treatment program.
Reinstating Your Driver’s License
Before you can even think about having your license reinstated you must satisfy a minimum portion of your suspension. This is based upon the number of total times your license has been revoked:
- 1 revocation waiting period: 6 months.
- 2 revocations waiting period: 12 months.
- 3 revocations waiting period: 18 months.
- 4 or more revocations waiting period: 24 months.
After you have satisfied this time period you will have to call the Driver Wellness and Safety Division at (410) 768-7000 and request your license be reinstated. The department will walk you through the process of applying to have your Maryland driver’s license reinstated. You may hire a lawyer to go through this process.
What do I need to do to get ready for court? Should I take an alcohol class? What is the difference between an evaluation and a treatment program? Should I do AA meetings?
Drunk driving cases are very serious. A court will want to know you are taking the charges seriously. To that end, I encourage all of my clients to immediately enroll in and complete an alcohol education course. To determine what course is best for you, an alcohol treatment provider will first do an evaluation to determine whether you are a social drinker, or whether you are considered a problem-drinker. They will ask you a series of questions to make this determination.
Once the treatment provider makes a decision as to the best course of treatment for you, you will generally either do a 6-week alcohol education program, or a more in-depth 26 week program that will include some Alcoholics Anonymous, or AA, meetings.
Can you give me a list of providers that offer such classes?
Yes, please see below.
Intensive Outpatient/Inpatient Rehabilitation Programs
Kolmac Clinic – (301)589-0255 / www.Kolmac.Com
Avery Road (Inpatient + Long-term Residential) – 301-762-5613