Noah's Law and PBJ

swinokur said:

I'll take the lawyer's opinion for 100 Alex.

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I'll take the Judges opinion for 1000 Alex.

And I'll challenge the lawyer to produce a case history court transcript which shows PBJ granted to any person without a guilty finding entered and stricken from the record first.

Roaddawg is technically correct, but I am not sure what his point is. You have to first plead guilty (or no contest) or be found guilty after a trial before a judge can sentence you for anything. So in a case where a defendant receives a PBJ there may be a brief period in court between when the judge finds you guilty and when the judge strikes the conviction and grants a PBJ. However that is irrelevant in the long run because what matters is the final disposition of the charge. Its pretty settled under Maryland law that a PBJ results in a final disposition of no conviction.

His point is when I thought you were right he said you were wrong.

Looks like I lost 100 bucks.

ok

Damn, everytime I see this thread I think of peanut butter and jelly. Better go eat.

CharlieFoxtrot said:

RoadDawg is technically correct, but I am not sure what his point is. You have to first plead guilty (or no contest) or be found guilty after a trial before a judge can sentence you for anything. So in a case where a defendant receives a PBJ there may be a brief period in court between when the judge finds you guilty and when the judge strikes the conviction and grants a PBJ. However that is irrelevant in the long run because what matters is the final disposition of the charge. Its pretty settled under Maryland law that a PBJ results in a final disposition of no conviction.

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Point being...

"Have you ever been found guilty of "XYZ"?"

If you have a PBJ on your record... Your answer should (by technical rights) be "YES, with explanation"

Not "No".

But since many still errantly believe that a "PBJ" is the same as "Innocent" or "NOT guilty"... They will accept a PBJ to "get the case over with quickly" and then later find out (as a friend and co-worker sadly found) that in some cases (Domestic or Violent matters) they are STILL faced with the end resulting penalty of conviction in the matter of certain rights... and SHOULD have fought the case which may have been a win with proper presentation of the facts. Even being found guilty for the time it takes to enter and strike the record... is STILL being "found guilty".

Often... in domestic cases (and some charged with violence) where there is woefully little real evidence to convict and no real intent... the defendant will see "JAIL TIME" and accept a "PBJ" for fear of losing in the court trial. Then sadly... NO MORE 2A RIGHTS... EVER. I have seen/witnessed cases where a Public Defender encourages the practice of PBJ over a full press court trial. Of course the ASA welcomes this as it gets the defendant into the system without having to argue the finer points of the case in an actual trial. A case which would have been, at best, a risk to the WIN/LOSS column on their resume. The INNOCENT defendants LOSE BIG in those cases.

Now... IF the courts were ever to rule that the PBJ was a self canceling ruling which was to be determined as INNOCENT/NOT GUILTY once the term of probation was passed successfully... WITH THAT ENTERED INTO THE RECORD... THEN it would be an advantage for a person to accept it as such.

Until then... Best advice for those who are facing it... DO NOT ACCEPT IT... NOT unless there is no real way that a permanent guilty finding can be kept off of your record otherwise.

swinokur said:

His point is when I thought you were right he said you were wrong.

Looks like I lost 100 bucks.

ok

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Your 100 bucks is safe... I neither need nor want it.

There are far too many ambiguous "traps" within our legal system. I try, when and where possible... to spring them and keep good honest folks from falling into as many as I can.

RoadDawg is correct generally but not to the answer of the original question IMO. I think the confusion stems from the original question.

I understood the original question to be about how PBJ's and/or convictions impact your ability to purchase firearms – the background check referred to the NICS or MSP’s check for purchase. In this case if you have a PBJ (with the exception noted in my original answer above) the answer to the question on an application to purchase a firearm "have you ever been convicted …? is "no." That is the correct and legal answer.

Now if you are taking about questions when you are undergoing background check/security clearance I agree that you should give a more complete answer along the lines of what RoadDawg suggested. It is rare though that the question is “have you ever been found guilty?” Most questions I have seen and helped clients with are “Have you ever been convicted” or “have you ever plead guilty or no contest..”

Also: when a defendant accepts a PBJ in court you are not accepting guilt you are agreeing abide by whatever terms and conditions of probation the court imposes and to waive your right to an appeal- that is the condition of being granted a PBJ.

CharlieFoxtrot said:

RoadDawg is correct generally but not to the answer of the original question IMO. I think the confusion stems from the original question.

I understood the original question to be about how PBJ's and/or convictions impact your ability to purchase firearms – the background check referred to the NICS or MSP’s check for purchase. In this case if you have a PBJ (with the exception noted in my original answer above) the answer to the question on an application to purchase a firearm "have you ever been convicted …? is "no." That is the correct and legal answer.

Now if you are taking about questions when you are undergoing background check/security clearance I agree that you should give a more complete answer along the lines of what RoadDawg suggested. It is rare though that the question is “have you ever been found guilty?” Most questions I have seen and helped clients with are “Have you ever been convicted” or “have you ever plead guilty or no contest..”

Also: when a defendant accepts a PBJ in court you are not accepting guilt you are agreeing abide by whatever terms and conditions of probation the court imposes and to waive your right to an appeal- that is the condition of being granted a PBJ.

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Accept it or don't... The Judge can NOT sentence you to any probation without first finding you guilty. Whether by plea agreement or otherwise... No one can be placed on probation for anything they are determined to be Not Guilty of doing.

As for the original question... (the first one in the post)

Not_an_outlaw said:

Heard something on the radio yesterday that individuals are escaping the requirements of Noah's law that requires a breathalyzer lockout unit in a car after a DUI. The law states that if you got a PBJ, a PBJ is not a conviction, so you aren't required to have the breathalyzer interlock installed.

Doesn't the MSP consider a PBJ a disqualifier in a background check, basically citing it as a conviction?

Can we use this?

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Depending on the offense...

Domestic Violence/Related? YES (Federal Law)

Act of violence... Assault/Arson/Robbery etc? YES

All other offenses... One would need to ask the MSP for their opinion in the particular case.

RoadDawg said:

The Judge can NOT sentence you to any probation without first finding you guilty. Whether by plea agreement or otherwise... No one can be placed on probation for anything they are determined to be Not Guilty of doing.

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Since it's called "probation before judgement, it would seem that the question of guilt/innocence is avoided altogether. Of course IANAL, and legal language is a "living document", at least in MD, and subject to the interpretational whims of those who enforce it.

As i understand the PBJ, you have to honor the terms and keep your nose clean. If not the PBJ can turn into an actual sentence. A probation violation. Even though you are technically "not guilty" you waive appeal rights and can still go to jail. It's for all effects, a guilty plea, but it can be expunged. Its worse than a stet, where the prosecutor just agrees not to prosecute for a while and will drop charges if you stay clean. Or reactivate the case otherwise.

We can claim PBJ is not guilty, but it really is. But its better than an actual conviction.

Bob A said:

Since it's called "probation before judgement, it would seem that the question of guilt/innocence is avoided altogether. Of course IANAL, and legal language is a "living document", at least in MD, and subject to the interpretational whims of those who enforce it.

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Judgement is not Verdict.

Verdict is "guilty" or "not guilty".

Judgement... is "what the guilty verdict is going to cost the guilty person in terms of penalties".

Probation BEFORE judgement... simply means the penalty is waved in return for completing the terms of the probation.

it would seem that the question of guilt/innocence is avoided altogether.

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THAT is the trap... "SEEMS like" is not reality.

danb said:

As i understand the PBJ, you have to honor the terms and keep your nose clean. If not the PBJ can turn into an actual sentence. A probation violation. Even though you are technically "not guilty" you waive appeal rights and can still go to jail. It's for all effects, a guilty plea, but it can be expunged. Its worse than a stet, where the prosecutor just agrees not to prosecute for a while and will drop charges if you stay clean. Or reactivate the case otherwise.

We can claim PBJ is not guilty, but it really is. But its better than an actual conviction.

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Correct. (Almost... the guilty verdict is STILL rendered... and then stricken from the record to enable the PBJ. Technically... you WERE found guilty.)

A Stet is a far better situation... PROVIDED... that the prosecutor does not find justification to reopen the case during the term of the stet docket. If the prosecutor does bring it to trial... the defendant cannot claim they did not get a trial within a reasonable time.

It is in fact NOT a guilty verdict... nor is it a not guilty verdict.
Unlike a PBJ... where a verdict has been rendered.

The case remains in a judicial limbo where it might never be brought to trial.