FAQs

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.

Back to Top

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.  Benjamin Herbst knows the ins and outs of these confusing laws, and will do whatever it takes to have the charges dropped. 

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

Back to Top

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. 

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.  Benjamin Herbst specializes in Maryland probation violation law, and has handled hundreds of these cases.  Call him at 410-207-2598 as soon as you learn of a violation, or if your officer has threatened to violate you.  Benjamin can talk to your probation officer, and even file a motion to withdraw your arrest warrant.  Getting a head start on your defense can make all the difference when your case comes to court.

Back to Top

Do I need a criminal defense lawyer for a misdemeanor?

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 in Maryland can carry harsh prison sentences, sometimes as high as ten years! Maryland classifies a large number of crimes as misdemeanors, crimes that many other states classify as felonies. For example, possession of cocaine, heroin or prescription narcotics is a misdemeanor in Maryland with a maximum jail sentence of four years. Possession of these drugs in any amount is classified as a felony in many other states such as Florida. Some states such as New York classify possession of cocaine over 5 grams as a felony. Burglary is another crime that can be classified as a misdemeanor in Maryland, and can carry a maximum jail sentence of three years. Despite being labeled as misdemeanors, these crimes can have serious collateral consequences upon conviction. Crimes that result in a sentence of more than one year can have a greater negative effect on immigration status if you are not an American citizen. Misdemeanor convictions for crimes involving dishonesty or moral turpitude can also have serious immigration consequences. In addition, prosecutors from another state may regard your misdemeanor conviction in Maryland as a felony when examining your criminal background, if the laws of that state so dictate. Common misdemeanors such as DUI can also seriously affect your driving privileges in Maryland and other states. A DUI conviction can follow you around for life. If another state has harsh DUI sanctions for repeat offenders, your Maryland DUI could end up being responsible for permanent loss of driving privileges and long jail sentences.

There are advantages for Maryland classifying a large number of crimes as misdemeanors rather than felonies. Despite the harsh maximum penalties for some misdemeanors in Maryland, 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. Maryland typically does not classify so called “victimless crimes” like simple drug possession as felonies.

Do not gamble with your future if you are charged with or being investigated 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 Maryland criminal defense lawyer to handle your case.

Back to Top

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.

Back to Top

Is medical marijuana legal in Maryland?

Despite numerous attempts and countless hours of lobbying, medical marijuana supporters have not yet succeeded in their goal of legalizing the drug in Maryland. Some headway has been made though in the fight to legalize medical marijuana, and this can be the source of some confusion for Maryland citizens.  Possession of marijuana by a person with a medical necessity for using the drug is no longer a criminal offense. Decriminalization does not mean legalization, as the legislature simply changed the maximum penalty from one year in jail and a $1,000 fine for regular possession to a maximum total penalty of a $100 fine. The problem still lies that a person can be arrested and even prosecuted for possession of marijuana before he or she can show a medical necessity for using it.

Medical necessity can be used as an affirmative defense, which means that a defendant can admit to possessing the drug and still be found not guilty of criminal possession of marijuana. Another example of an affirmative defense is self defense. Affirmative defenses are legal defenses that a judge and a prosecutor may consider but to police officers on the street they are nearly worthless, and will not get you out of an arrest. In order to be able to successfully argue an affirmative defense to possessing marijuana, a defendant will need to show evidence of a debilitating medical condition as diagnosed buy a licensed physician with whom the defendant/patient has an ongoing and bona fide relationship. This affirmative defense is not available to a defendant who has been arrested or ticketed for possessing marijuana in a public place, or for a defendant who was arrested for possessing over one ounce of the drug.

A defendant who does not have the ability to prove a diagnosis for a debilitating medical condition by a licensed physician can still have their sentence mitigated under Maryland law. Upon conviction for possession of marijuana a defendant can introduce evidence of a medical necessity for using the drug. If the court agrees, the maximum sentence for possession then becomes a fine of $100. The inherent flaw in the medical necessity mitigation law is that the defendant must first be convicted of the crime in order to receive the mitigation benefit.

In the 2014 legislative session, the General Assembly decriminalized simple marijuana possession for everyone over the age of 21, regardless of whether there is a medical necessity.  As of now an adult over 21 may not be arrested for simple possession of pot.  For a year there were some issues with this law, because elected officials failed to include any language about drug paraphernalia.  But a year later lawmakers changed the paraphernalia laws to exclude marijuana related items. 

In 2014 the General Assembly passed a law that was supposed to dramatically improve prior medical marijuana law, which required academic hospitals such as Johns Hopkins to conduct the programs.  No hospitals wanted to administer the programs, and few doctors wanted to conduct research on a medical question they already know the answer to.  A change needed to be made because the 2013 law was useless.  The legislature answered the call, but it remains to be seen how the state will implement the program going forward.   Patients and investors have consistently been frustrated by the slow progress and lack of communication from the medical marijuana commission, and now even the conservative estimate of a summer 2017 debut seems like a pipe dream.  Three grow license applicants have already filed civil lawsuits after being denied by the commission and more lawsuits could be on the way.

At least twenty states have implemented medical marijuana, and our great state will join the fray in the next year or two.  The Herbst Firm is a criminal defense law firm specializing in possession and sale of marijuana, and can offer free advice and information about the progress of the state's evolving drug laws.

Back to Top

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 Maryland criminal 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 DUI 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 DUI 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.

Back to top

Contact Us for a Free Consultation
Office Phone Number