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Ever wonder what probation before judgment is?
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The case of Baltimore County Councilman Kenneth Oliver this week may have caused some of you to wonder: what is Probation Before Judgment (PBJ)? Those who have gone to criminal or traffic court probably know, so this is Info 101 for those that do not. I will discuss PBJ in the context of the two Baltimore County Councilman recently in the news for criminal activity.
Section 6-220 of the Criminal Procedure Article of the Maryland Annotated Code provides for Probation Before Judgment. PBJ is a disposition in Maryland that results when a judge strikes a Guilty finding, which allows the defendant to respond truthfully that he or she has not been convicted.
The court can grant PBJ if it finds that the best interests of the defendant and the public welfare will be served. Receiving PBJ is especially important for those applying for jobs. Most job applications ask about convictions, not probation before judgment.
A person is not entitled to receive PBJ, nor does he have a right to receive it, even if he does not have any prior convictions. Usually, though, a person with a clean record will receive PBJ, if the offense committed is relatively minor. There are even instances where a person receives more than one PBJ, although that is rare.
The Baltimore County Charter, Section 1002.1 provides, in relevant part, that
Any elected official who is convicted of or enters a plea of nolo contendere to any crime which is a felony, or which is a misdemeanor related to his public duties and responsibilities and for which the penalty may be incarceration in any penal institution, shall automatically forfeit his office and all pension benefits accrued after the date of the crime immediately upon conviction.
A strong argument can be made that being charged with campaign finance violations relates to Councilman Oliver’s “public duties” within the meaning of the County Charter provision above. But Oliver received the benefit of PBJ this week, which allows him to keep his seat on the Council, because he can say that he has not been convicted. As you can see from the Charter provisions above, Oliver dodged an incredible financial penalty.
Now, Councilman Sam Moxley already received one PBJ for Driving Under the Influence (DUI) in 2005. So, you may be wondering if he can receive a second PBJ. The answer is no. The law provides that a person may not receive PBJ for a second DUI offense, if he received one within the last five years. But unlike Oliver's case, it is harder to make the argument that the DUI is “related to his public duties and responsibilities.”
So, while Moxley may wind up with a DUI conviction, he probably does not have to give up his seat on the Council under the Charter. He may give up his seat due to public pressure, but that is a different story.
Isn’t it sad that we are even discussing criminal charges and our elected officials?
For more info: Oliver Pleads Guilty, Councilman Ken Oliver Gets Light Sentence
Dilip Paliath has a general law practice in Towson. See www.paliath.com for more information.
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