Criminal Defense FAQs
What Is the Difference Between First and Second Degree Assault in Maryland?

Despite having similar language and sharing some of the same elements, first and second degree assault are two drastically different crimes in Maryland.  They differ right from the start with how a defendant is treated upon being charged, whether he or she is arrested or receives a summons, and whether a commissioner grants release or holds without bail.  Judges view these two offenses much differently and are far more likely to release a defendant who is charged with second degree assault.  As the case progresses in the trial process the State will place more emphasis on a felony first degree assault, and if a defendant is convicted, he or she faces a substantially higher sentence.  Maryland assault lawyer Benjamin Herbst has won numerous first and second degree assault jury trials and has earned dismissals in hundreds of cases.  He is available to discuss your case at 410-207-2598 if you have additional questions after reading this information.

Under Maryland law crime of assault also includes battery and attempted battery, and therefore the State can prove the crime of assault in one of three ways.  The most common is an actual battery, which requires the state to prove the defendant caused offensive physical contact with the victim, the contact was the result of an intentional or reckless act and not accidental and finally that the victim did not consent to the contact.  Proof of an actual injury is not required, but the state will have a difficult time proving an assault case solely based on the testimony of a witness.  We have won assault cases where police officers take pictures of an actual injury on the victim, but these cases are better suited for a jury trial rather than a district court bench trial.  A defendant can also be charged with assault based on the theory of attempted battery, but these cases are far less common.  Under Maryland law, attempted battery occurs if a defendant intentionally tries to cause immediate physical contact or harm to a victim without his or her consent.  Finally, a defendant can be charged with assault in Maryland for attempting to frighten another person.  This is another less common type of assault, and requires the State to prove a defendant committed an intentional act that placed the victim in fear of immediate physical harm or contact.  A threat to hurt someone in the future is not considered an assault, as the threat has to appear to be imminent.

In Maryland, first degree assault can be charged if a defendant causes or intends to cause serious bodily injury, uses a firearm in an alleged assault or strangles a victim.  The State would also have to prove the elements in common with second degree assault such as the act was intentional, without consent and not legally justified.  Serious bodily injury is defined as creating a substantial risk of death or causing permanent loss or impairment of the functioning of a bodily member or organ.  Examples of this could be an injury that permanently affects a person’s ability to walk, see, hear or carry things.  Use of a firearm does not require that the firearm was discharged or even directly pointed at an individual.  Brandishing or displaying a gun in an aggressive manner could be all that is needed for a defendant to be charged with first degree assault.  This type of assault is common in domestic cases as well as road rage cases.  As of a few years ago Maryland law also includes strangulation in its definition of first degree assault.  Lawmakers around the country have responded to anti domestic violence lobbies, and strangulation has been a key issue.  Strangulation means to impede the normal breathing or blood circulation of a person by applying pressure to the person's throat or neck.  Again, there does not have to be evidence that a person actually lost consciousness and there does not have to be proof of other symptoms such as finger marks on the neck, raspy voice or scratches.  A simple accusation of strangling can result in serious first degree assault charges being filed, which results in far too many innocent people being arrested for domestic assault.  Benjamin Herbst is a Maryland assault lawyer who specializes in strangulation cases.  He has earned numerous acquittals in cases where strangulation was alleged and is fully prepared to defend you or a loved one against first degree assault charges.  Benjamin has also secured the release of dozens of clients facing first-degree assault charges at bail reviews in all Maryland jurisdictions.

Contact Maryland criminal lawyer Benjamin Herbst anytime at 410-207-2598 to discuss your first or second degree assault charge, and learn how you can fight back against false accusations with defenses such as lack of evidence, self-defense and conflicting witness statements.

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What are Common Penalties for DUI in Maryland?

Compared to some other states the DUI laws in Maryland are relatively lenient, but it would be inaccurate to say that first offenders generally receive a mere slap on the wrist. The outcome of a case where a driver pleads guilty or is found guilty after trial is largely dependent on four factors including the prior record of the driver, the alcohol content of the driver, whether there was an injury accident and the overall behavior of the driver during the stop. A first time offender with a BAC of .10 or less that did not get into an accident and was polite and cooperative with police will probably be in the best situation for sentencing. Those who have refused the breath test could be in a similar or even better situation in court, although they will face harsher sanctions from the MVA.

Drivers in either of these scenarios should be able secure a probation before judgment (PBJ), avoid jail time and possibly even receive unsupervised probation if they are well prepared for court. Being well prepared means that the driver should enter and either complete or come close to completing a state certified alcohol education program. These programs must be done in person and commonly include an initial evaluation followed by a minimum of 12 hours of class time. Drivers may also be required to attend a MADD impact panel meeting, but this may be completed while on unsupervised probation as long as the driver or his or her attorney files the appropriate documentation that the class has been completed.

The likely term of probation for a first time offender with no aggravating circumstances is 6 to 18 months, but some judges still go as high as 3 years probation for a first offense. As long as the driver receives a PBJ there will be no points assessed on his or her Maryland driver's license, though unlike other offenses a DUI cannot be expunged even with a PBJ. A conviction for DUI carries 12 points, which will bring an additional license suspension, while a conviction for DWI carries 8 points and mandatory driver improvement classes. DWI is considered a lesser offense, and is often offered by the state when the defendant refuses to submit to the breath test. If the driver takes the test and the results are above .08 the state typically does not have any reason to offer a lesser, and will go forward on DUI per se. Fair or not, for court purposes it often pays to refuse the test if there is any chance of failing. Large fines are not a typically a common form of punishment in Maryland, as a portion of the standard $500 or $1,000 fine will usually be suspended. Most first time offenders will end up paying $250 to $350 in fines and court costs.

Second time offenders face an increased likelihood of serving active jail time, and if the first offense was within 5 years it's almost a guarantee. The amount of jail time is largely dependent on the jurisdiction and the judge. Obviously the facts of every case are different, but it is also important to consider in the location of the traffic stop when attempting to predict the outcome of a case. For such a small state Maryland has drastically diverse socioeconomic and politically oriented regions, and this affects the way cases are handled in the local courts. Judges and prosecutors around the state can look at the same DUI case differently. While first time offenders are mostly held in the same light regardless of jurisdiction, the same cannot be said for repeat offenders. In some jurisdictions it is an unspoken rule that a second offender will receive 30 days or more in jail, while in others jail time is far from a foregone conclusion. As the stakes are higher, repeat offenders need to do everything in their power to show the judge that it will never happen again. This often means entering an inpatient or intensive outpatient program and participating in multiple AA meetings per week.

Drivers who were arrested and then blew over.15, those who caused an accident as a result of their impairment and those who were argumentative and even violent with police also face harsher sentences in court. Other aggravating factors include open containers of alcohol being found, the presence of minors in the car and the driver having a suspended license. In some cases these aggravating factors can place a first time offender in a worse position than a repeat offender, and these cases should not be taken lightly. Drivers in any of these situations should start preparing for their case immediately, which means searching for treatment options the day after the arrest. Judges will not look kindly upon a defendant who waited until the last minute to seek an alcohol evaluation.

While arresting officers will almost certainly show up for DUI cases not all drunk driving arrests end up with convictions and punishments. For those who feel they were wrongly arrested it is probably wise to request a jury trial and prepare the case for trial in the circuit court. Jurors are generally more skeptical of a police officer's opinion about another person's impairment whereas judges will generally believe a well-prepared officer. A good lawyer will make a juror understand that the odor of alcohol is present after even a sip of liquor, half a glass of wine or a bottle of beer and this absolutely does not prove impairment. In addition the standardized field sobriety exercises are designed to confuse and put drivers in awkward uncomfortable situations, and performing poorly on these exercises is hardly proof of impairment. For additional questions or consultation contact DUI attorney Benjamin Herbst at 410-207-2598. Benjamin has won numerous impaired driving jury trials and is available 7 days a week to discuss your case.

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What Are Maryland's Toughest Gun Laws?

Those of you who have read our blog are probably aware of the changes in state gun laws over the last couple of years. For those who haven’t checked out our criminal law blog this page will provide a brief overview. Basically Maryland has gone from a state with tough gun laws to one of the toughest in the entire country. Various bills have been signed into law in the last few legislative sessions, and federal appellate court decisions have upheld these laws. The main effect of these new laws is that they make legally possessing a gun extremely difficult, and in many cases downright dangerous. Purchasing firearms in the state now requires fingerprinting, background checks, safety classes, and long waiting periods, but theses laws rarely result in arrests and unfair criminal charges. Simply put, you cannot be arrested for trying to buy a gun. On the other hand, you can be arrested for carrying or transporting a firearm. And the number of unlawful and unfair arrests for this offense makes it one of the toughest on the books.

Maryland laws that regulate wearing, carrying, or transporting gun are not only stricter than every surrounding state, but these laws are also confusing to the point that the cops do not even understand them. Our firm has represented numerous clients from states such as Florida, North Carolina, and Virginia, and in each of these cases our clients were arrested for something that is legal in their home states. The law prohibits a person from transporting a firearm, but exceptions include traveling to or from a bona fide place of residence or place of business, from target practice, or to and from the gun shop. The problem is that many police officers don’t know about the exceptions, or simply don’t bother to fully investigate. A person traveling through Maryland with a gun in his or her car is not necessarily breaking the law, but 9 out of 10 officers will make an arrest if they find one. The firearm must be unloaded and in a case or a holster, but we have seen cases where cops will make an arrest even if theses requirements are followed. If you have been arrested for carrying or transporting a gun the state may file felony charges, and in some cases these charges carry mandatory minimum jail sentences.

Another common weapons offense is possession of a gun by a convicted felon. This crime used to carry a maximum sentence of 5 years, but strangely this was also the minimum sentence upon conviction. The law has since been changed to carry a maximum 15-year sentence, but the minimum mandatory is now not as mandatory. If five years has passed since the defendant completed his or her sentence for the most recent felony conviction then it is up to the judge whether to impose the minimum mandatory. In other words a conviction will not automatically trigger imposition of a five-year prison sentence. These modifications give the defense a greater degree of negotiating power, and allow the facts of each case to be looked at individually. For further questions or more detailed information contact the firm anytime at 410-207-2598

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What should I do if my probation is about to be violated?

Probation definitely has some value in the American court system, but most people with the knowledge and experience of how the system works would agree that probation has serious drawbacks. From a defendant’s perspective, the only good thing about probation is that it can be used instead of a jail sentence. It allows the judge and the state to feel like they have delivered some sort of punishment without having to lock somebody up. In many cases probation in lieu of jail time has saved jobs, marriages, family relationships, and kept defendants safe. But in other cases probation turns out to be a greater burden than it’s worth.

Since the Judicial Reinvestment Act became effective there are now two types of probation violations.  Technical violations include missing an appointment, testing positive for drugs or alcohol or knowingly consuming drugs or alcohol when ordered to refrain from doing so, failing to complete treatment or community service and failing to pay restitution.  These technical violations have a presumed cap of 15 days in jail for a first violation, 30 days for a second violation and 45 for a third or subsequent.  A judge can go beyond the technical violation cap provided there is a finding that the defendant poses a public safety risk, but this is rare.  Non-technical violations include incurring a new criminal or serious traffic conviction, absconding from probation or violating a no contact order.  Absconding from probation means missing more than 1 appointment, which often creates a great deal of confusion more those facing a violation.  Missing an appointment is a technical, but missing two or more becomes a non-technical violation where a defendant faces the potential of being sentenced to the full backup time.

There are far too many probation violations that are causing a great strain on defendant’s lives, and on the court system. The fact of the matter is that probation officers are too quick to recommend violations, and judges are often too harsh when these cases show up in court. Many Maryland probation officers have a tendency to abuse their authority, and would rather issue a violation report than be flexible and understanding. We have seen defendants violated for missing appointments or showing up late when they actually showed up on time. Defendants have been violated for moving or traveling without permission when the probation officers have been impossible to get in touch with to obtain the permission. Probation isn’t easy, and we understand the frustration with the process. But the last thing anyone should do if they are facing a violation is to give up.

If you or a loved one is facing a probation violation, the first thing we recommend is to continue to try to complete your obligations. Don’t skip an appointment, treatment class, or payment because doing so will only make matters worse when the case finally ends up in court.

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What do I do if I am pulled over for DUI?

The first advice we give to clients is to avoid voluntarily giving Maryland police officers any evidence that could help them prove DUI. If you see that an officer is trying to pull you over or has flagged you down, you should stop your car in a safe manner, and do it as timely as possible. You do not want to call any extra attention to yourself before the officer has even approached. When the police approach your car, have your license and registration ready to hand over, and DO NOT speak unless spoken to. If you have be drinking alcohol, every time you open your mouth you are giving the police evidence they could use against you. Remember that you are not obligated to say anything to the police except to identify yourself, so less is more. On DUI stops police typically ask where you have been coming from, where you are going, and if you have been drinking. If you choose to answer any of these questions, your answers will probably show up in a police report if you are arrested.

We always advise our clients to be cooperative with police, and to refrain from being chatty and overly friendly. In Maryland there are very limited circumstances, such as accidents with serious injuries or fatalities, where you can be required to submit to a breath or blood test to measure your blood alcohol content. If a police officer tells you that a breath alcohol test is voluntary then you are under no obligation to provide a sample. If you decide to submit to a breath alcohol test, you will be asked to provide two samples by a certified breath test operator. The arresting officer is not permitted to actually administer the breath alcohol test. Remember that if you are charged with DUI the results of these breath alcohol tests will likely be used against you in court. The same goes for standardized roadside sobriety exercises like the finger to nose, and walk the line test.

You are under no obligation to preform the roadside sobriety exercises, and they too can be used against you in court if you are charged with DUI. The roadside exercises that Maryland police officers use are designed to be difficult and confusing. The goal of these exercises is to divide your attention and test your ability to listen to instructions and perform a task at the same time. The officer will judge not only your performance on the actual tests, but also on your ability to listen to the complex instructions. It is difficult enough for a sober and coordinated person to perform these exercises the first time, much less someone who as consumed alcohol and is under the stress of a police officer watching. If you choose to perform roadside sobriety exercise, request that the officer escort you to a safe, well lit, and flat area. Inform the officer if you have any medical conditions that might affect your performance, and remove any unsupportive footwear such as high heels or flip flops. Once again, any mistakes on the DUI roadside exercises will show up in a police report. For more information on DUI traffic stops in Maryland contact a Baltimore DUI lawyer for a free consultation.

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Do I need a criminal defense lawyer for a misdemeanor or a criminal citation?

In Maryland a person does not have to be arrested in order to be charged with an offense that carries the possibility of jail time. Most misdemeanor charges are initiated by a police officer issuing a citation to the alleged offender, though this does not mean the charge should be taken lightly. Criminal citations and certain traffic citations not only carry the possibility of jail, but also the possibility of becoming part of the permanent public record. This is also true with civil violations such as misrepresentation of age and other alcohol violations that do not carry the possibility of jail but could become permanent if not handled properly. Any time you receive a must appear citation (meaning you must go to court) you should contact a lawyer for assistance. A lawyer can immediately start preparing your defense so that the outcome of your case will not be decided in the last minute right before the judge begins court. In some cases a lawyer may be able to negotiate a dismissal for your citation before court, which means you may not even have to show up for your trial.

Many jurisdictions in the United States classify misdemeanors as crimes with a maximum jail sentence of one year, but Maryland does not subscribe to this theory. Misdemeanors can carry harsh prison sentences, sometimes as high as ten years! Assault, drug possession and burglary may be misdemeanors, but these crimes can have serious collateral consequences upon conviction such as the inability to become a U.S. citizen or the ability to stay in the country. There are advantages for Maryland classifying a large number of crimes as misdemeanors rather than felonies. Despite the harsh maximum penalties for some misdemeanors a conviction for one of these crimes will not result in a loss of civil rights. Convicted felons can lose fundamental rights such as the right to vote and to bear arms for relatively minor felony convictions in other states. Hundred of citizens lose their civil rights each year for possession of cocaine or possession of prescription drug convictions.

Do not gamble with your future if you are charged with a criminal, traffic or civil citation for a misdemeanor in Maryland. The harsh maximum sentences, and collateral consequences of misdemeanor convictions make it all the more important to retain an experienced and skilled criminal defense lawyer to handle your case.

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What should I do if I am injured in an accident?

Regardless of whether you are injured in a car accident, or a slip and fall accident the first thing you should do is call for emergency medical response. Even if you do not think you are seriously injured you should get checked out by a Maryland emergency medical services or EMS crew before leaving an accident scene . There are a variety of long term serious injuries that are not immediately apparent such as whiplash and even head trauma. Declining immediate medical attention can have serious negative consequences for your health and for a potential damages claim. If emergency medical services do not recommend a trip to the hospital, make sure that you arrange to receive a copy of either an EMS narrative, or a police report detailing the facts surrounding the injury accident.

After an injury accident occurs and any injured parties have been treated, you should try to document the details of the accident to the best of your ability. If you have a camera or a cell phone camera take various pictures of the accident scene. Try to talk to any witnesses or have the police take witness statements. Write down the names of anyone who you think was a witness to the injury accident. Accident scenes can be traumatic but remaining calm and making an effort to remember details can improve your chances of earning monetary damages in a lawsuit. Try to remember not to talk about the accident with anyone except police and EMS. Anything you say at the scene of the accident can later be used by insurance defense lawyers to weaken your damages lawsuit.

After leaving the scene of an injury accident, and in the days that follow you may be contacted by the negligent party’s insurance company and asked to give a statement. Do not give a statement to any insurance agents or defense lawyers without first consulting an experienced Baltimore injury lawyer . Insurance adjusters, agents, and lawyers may try to contact you in order to work out a quick settlement for your injuries. These parties are not out for your best interests and settling a claim for damages without the advice of a Baltimore accident lawyer can end up costing you thousands of dollars.

If you are experiencing any pain or discomfort due to injuries suffered in an accident, seek a medical evaluation immediately. Waiting to see a doctor can weaken a potential damages lawsuit, and in some cases completely bar any monetary recovery. If a medical doctor has ordered follow up treatment or rehabilitation for your accident injuries make sure you follow these orders. Once again, neglecting to rehabilitate injuries can weaken a potential claim for damages. The Baltimore injury lawyers of The Herbst Firm will guide you through the process of recovering from an injury accident from day one. We understand that suffering an injury due to someone else’s negligence is a painful and stressful experience, but recovering damages for your injuries should not be stressful. The Herbst Firm is committed to representing your best interests and earning the settlement or verdict you deserve, while keeping you informed each step of the way.

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Can My Probation Be Violated For Smoking Marijuana?

The short answer to this question is yes, your probation can be violated if you test positive for marijuana. Testing positive could result in a technical violation, and a summons or an arrest warrant could be issued for you. This is true regardless of the fact that the simple possession of marijuana is no longer a crime under Maryland law, and is only punishable by a civil citation. While possession of small amounts is not a crime, this does not mean that weed is a legal substance under state law. When a defendant pleads guilty or no contest and is sentenced to probation it is typically a standard condition that he or she is prohibited from using controlled dangerous substances (CDS). Therefore if a defendant is drug tested and fails a violation could result. Most probation officers will typically wait at least 30 days from the start of probation to test and violate someone for marijuana use, and most judges realize that pot can stay in the system for a month. While testing positive for a substance that is barely illegal may not seem like a big deal, any violation of probation could result in jail time or the loss of a PBJ (which will impose a permanent conviction). This is especially true for someone who is on a high level of supervision such as VPI probation. There may be one exception to this regarding medical marijuana, as a defendant with a valid prescription for medical marijuana would likely have a legal defense to any potential violation.

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Should I speak to the police about my case?

If you or someone you know is arrested for a criminal offense in Maryland, there are a few important things to remember. Perhaps the most important thing to keep in mind if you are ever arrested for any crime in Maryland is to remain silent. This does not mean that you should be uncooperative with police officers but under no circumstances should you volunteer information to police. Any information that you freely and voluntarily give to police officers can be used against you in your criminal case. And some police officers will even say your statements were given freely and voluntarily when just the opposite is true. Making any statements to police about your criminal case may hamper your lawyer's ability to defend your case. This is true for all criminal cases from misdemeanors such as DUI and drug possession all the way to felonies such as robbery and rape.

For example if you are pulled over for DUI you may be required to produce your license and registration, but try to minimize small talking with the police. Police officers are trained to gather evidence from criminal suspects during all kinds of interactions. You may think that chatting with police can help you to avoid an arrest but in reality you may be giving a police officer probable cause to arrest you for by simply opening up your mouth. A Maryland DUI lawyer can explain in greater detail the tactics that police use to gather evidence in a traffic case. This is the same for many drug arrests such as marijuana possession and cocaine possession. Police are taught what signals to look for when someone is under the influence of drugs, and marijuana especially has tell tale signs that can cause an officer to become suspicious. Cocaine or crack may not have a distinct smell but it can produce visible results that may prompt an officer to conduct a a search of either your car or your person.

In felony cases such as theft, rape, and robbery the consequences for making a statement to police can be extremely severe. Many times in these types of cases there is little or no physical evidence, and prosecuting lawyers can build their entire case around a statement or confession by a defendant. Do not make the mistake of trying to talk your way out of an arrest. Even if you think you are not saying anything incriminating to police, your statements may weaken a defense that your Maryland criminal lawyer may want to use. Remember that have an absolute right to remain silent no matter what police say.

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Can I Possess a Gun in Maryland?

While Maryland still has some of the toughest gun laws in the country, recent federal court rulings have softened these laws up a bit. Concealed carry permits are much easier to obtain, as the Supreme Court abolished any provision that requires citizens to prove they have a good reason to carry a firearm. A federal appeals court also struck down the HQL process that requires citizens to complete training and a strict background check before purchasing a handgun. The State is appealing this decision and for the time being is still requiring that purchasers obtain an HQL. The Maryland gun laws continue to evolve, but they don’t necessarily move in a straight line toward more control. State lawmakers remain committed to pushing for stricter measures and courts continue to scrutinize, and in some cases overturn, these measures. What has remained constant over the past few years are the laws governing who may possess a firearm.

It is widely understood that anyone with a felony conviction is prohibited from possessing a firearm. There are no exceptions to this rule in state or federal court. For those with misdemeanor convictions, probation before judgments (PBJ) and other past issues the law is a little more confusing. The most common situation where a person is prohibited is if he or she has been convicted of a disqualifying crime. Disqualifying crimes include crimes of violence such as assault, robbery, arson, rape and felony burglary but also include misdemeanor offenses that have more than a 2-year maximum penalty. This means 4th degree burglary, wear, transport and carry of a handgun and reckless endangerment are all disqualifying offenses. Generally, a conviction means that the person was found guilty, but there is one major exception. Anyone who received PBJ for a crime of violence is considered convicted of that offense unless it has been expunged. Also, anyone who receives PBJ for a domestically related second-degree assault is considered convicted.

Any person with a second conviction for child’s access to firearms under Maryland criminal law 4-104 after October 1, 2023 is also prohibited from possessing a firearm. This is despite the fact that child’s access to firearms is not punishable by jail time, but rather a maximum criminal fine of $1,000. Defendants who are on supervised probation for an offense punishable by more than one year in jail, for DUI or DWI or for a violation of a protective order are also prohibited from possessing a firearm unless they received PBJ. Fugitives, drug users and those suffering from a mental health disorder may also be prohibited, but these cases are far less common.

The potential punishment for violating the laws against possessing a firearm depends on the reason the person was disqualified. Those with felony convictions or violent crime convictions (including PBJ) face potential felony charges under 5-133(c) of the Maryland public safety code, which is a felony with a 15-year maximum penalty. There is a 5-year mandatory sentence tied to this statute if the original case was closed less than 5 years before the new arrest. A case is closed once the sentence or probation is completed. Illegal possession of a firearm by any other disqualified person, including minors under the age of 21, is a misdemeanor with a 5-year maximum penalty under public safety code section 5-133(b). Individuals who are not disqualified are still not permitted to wear, transport or carry a gun on their person or in their vehicle without a Maryland concealed carry permit. If you have additional questions about who may possess, buy or carry a gun in feel free to call the Maryland gun crime lawyers at 410-207-2598 anytime for a free consultation.

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