
Maryland Criminal Procedure Section 5-213.1 criminalizes certain violations of pre-trial release conditions. Below are two sample defense arguments for these types of cases. One is a multiplicity argument, in the event the State seeks multiple counts for violation of the same order. The other is a motion to dismiss for a scenario where a Defendant is held in custody and nevertheless the State attempts to prosecute. Both were draft by Paul J. Notarianni in 2019.
Multiplicity Argument
Multiplicity is the charging of the same offense in more than one count. (Brown v. State, 311 Md. 426, 432, (1998)). “Whether a particular course of conduct constitutes one or more violations of a single statutory offense . . . is ordinarily determined by reference to legislative intent.” (Id. citing Ladner v. U.S., 358 U.S. 169 (1958); Bell v. U.S., 349 U.S. 81, (1955); U.S. v. Universal C.I.T., 344 U.S. 218 (1952); and Ebeling v. Morgan, 237 U.S. 625 (1915)).
Maryland Criminal Procedure Section 5-213.1 is a relatively new statute and criminal charge. Undersigned counsel is unaware of any relevant case law or other source that specifically addresses the Legislature’s intent with this particular statute. However, it should be noted that Maryland Family Law Section 4-501 is specifically referenced in the language of Maryland Criminal Procedure Section 5-213.1.
By way of comparison, Maryland Family Law Section 4-509 and Maryland Criminal Procedure Section 5-213.1 are similar but distinctly different statutes. Both involve criminalizing behavior involving one person making contact with another, despite a court order to the contrary, with a prescribed maximum sentence of 90 days of incarceration. (MD Family Section 4-509 (a) and MD Crim Pro Section 5-213.1 (a) and (b)).
However, there is one major difference between these statutes. Maryland Family Law Section 4-509 states that a person that violates this section is “guilty of a misdemeanor and on conviction is subject, for each offense, to [a maximum sentence up to 90 days of incarceration and a fine].” (MD Family Law Section 4-509 (a)). There is no such “each offense” language in Maryland Criminal Procedure Section 5-213.1.
The Maryland Rules require that, with limited exception, motions asserting a defect in a charging document must be heard prior to trial. (Maryland Rule 4-251 (b)(1)).
In this case, the Defendant is charged with multiple counts of violating the same statute related to the same case and the same alleged victim. Despite the multiple contacts, the plain language of the statute sets the penalty of a violating pre-trial release conditions as a maximum 90 day offense. Unlike Maryland Family Law Section 4-509, Maryland Criminal Procedure Section 5-213.1 contains no language criminalizing each individual contact. It is fair to assume that the Legislature was aware of this because 1) it was a preexisting statute, and, more importantly, 2) Maryland Criminal Procedure Section 5-213.1 makes specific reference to the Family Law Article.
In viewing the plain language of the statute, it appears it was the Legislature’s intent to make Criminal Procedure Section 5-213.1 a single 90 day maximum offense, as opposed to Maryland Family Law Section 4-509 which explicitly authorizes multiple charges for each contact.
Lack of Probable Cause Argument
Maryland Criminal Procedure Section 5-213.1 reads in pertinent part, “a person may not violate a condition of pretrial . . . release prohibiting the person from contacting . . . an alleged victim…” Maryland Criminal Procedure Section 5-213.1 is a relatively new statute and criminal charge. Undersigned counsel is unaware of any relevant case law or other source that specifically addresses the Legislature’s intent with this particular statute. However, Maryland Rule 4-216.3 (d) contains language that implies that violations of pretrial release conditions are contingent on a person actually being released. (Maryland Rule 4-216.3 (d) “Violation of Condition of Release. A court may issue a bench warrant for the arrest of a defendant charged with a criminal offense who is alleged to have violated a condition of pretrial release. After the defendant is presented before a court, the court may (1) revoke the defendant’s pretrial release or (2) continue the defendant’s pretrial release with or without conditions.)
The Maryland Court of Appeals has held that “when a court construes a criminal statute, it may invoke a principle known as the ‘rule of lenity’ when the statute is open to more than one interpretation and the court is otherwise unable to determine which interpretation was intended by the Legislature. Instead of arbitrarily choosing one of the competing interpretations, the court selects the interpretation that treats the defendant more leniently.” (Oglesby v. State, 441 Md. 673 (2015)).
Maryland Criminal Procedure Section 5-213.1 has two potential interpretations. One is that a condition of pretrial release is in effect regardless of whether the Defendant is actually released from custody. The other interpretation is that pretrial release conditions are conditional upon a Defendant being released from custody.
Because there are at least two potential interpretations of Maryland Criminal Procedure Section 5-213.1, this Honorable Court ought to apply the lenity analysis as prescribed in Oglesby. This Honorable Court cannot decipher the Legislature’s intent beyond the plain language of the statute because there does not appear to be any relevant case law or other source that specifically demonstrates the Legislature’s specific intent with this particular statute. This Honorable Court ought to adopt the interpretation that pretrial release conditions are conditional upon a Defendant being released from custody because it treats the defendant more leniently.