Obtaining Disabilty Benefits From the Maryland State Retirement Agency

In Maryland, many state employees are eligible for disability retirements benefits if they are no longer able to work for a state agency or other government agencies, such as Baltimore City Public Schools.  There are three types of disability retirement benefits: Ordinary Disability Benefits, Accidental Disability Benefits, and Special/Accidental Disability Benefits.  

Ordinary Disability Benefits are disability benefits received because an individual cannot work because they are disabled.  Typically, claims for Ordinary Disability Benefits have to filed within four years after paid employment ends. Individuals who are part of the Teachers’ Retirement Plan have five years to apply for benefits.

Accidental Disability Benefits are awarded when the cause of the injury occurred in the performance of the claimant’s work duties at a definite time and place.  The disability cannot stem from willful negligence.  Moreover, the claimant must be totally and permanently unable to perform their job as a natural and proximate result of the accident.   Claims for Accidental Disability Benefits have to filed within five years of the accident occurring.

Special/Accidental Disability Benefits are Similar to Accidental Disability Benefits, but are available for State Police or individuals participating in the Law Enforcement Officers Pension System (LEOPS).  To be awarded these benefits a claimant needs to be totally and permanently disabled for duty and the disability needs to arise out of and in the course of the performance of their job, without any willful negligence on the part of the claimant. 

When applying for Accidental Disability or Special/Accidental Disability Benefits, the Maryland State Retirement Agency should automatically consider you for Ordinary Disability if you have at least five years of eligibility service.  However, the State Retirement Agency has been known not to consider applicants that do not check box on the application for Ordinary Disability Retirement. Moreover, if you apply for Ordinary Disability, and you do not simultaneously apply for Accidental Disability or Special/Accidental Disability, you cannot request Accidental Disability or Special/Accidental Disability for an injury that occurred prior to the application date for Ordinary Disability.  Checking the right boxes on the application is critical.

Collecting medical records will be an important part of the application process.  These records, along with a narrative that you provide the State Retirement Agency will be how Maryland State Retirement Agency decides whether are you are eligible for benefits.  If you are denied benefits after you first apply, you have the right to appeal the denial.  As part of the appeal, you will have a hearing to determine if you should be awarded benefits.

Once awarded benefits you will have multiple options as to how to select your benefits.  It is important that you select the benefits that you want correctly the first time.  Once the State issues you a check, the State does not have to let you change your mind as to the amount of benefits you receive.  Plans will vary in terms of whether you can name a beneficiary or medical coverage.

If your employer is forcing you to retire or quit, it is important that not only do you apply for the required disability benefits, but that you also submit certain forms, such as Form 129, prior to the date you are forced to retire.  If Form 129, is not submitted prior to the date you are forced to retire, you may become ineligible for benefits, even if you submitted your application date before the retirement date.

If you need someone experienced in this matter to help you obtain disability benefits from the Maryland State Retirement Agency, please contact the Law Office of Phillip E. Chalker at phillip@attorneychalker.com or (443) 961-7345..

ERISA: The Standard that Companies Should Use When Determining if an Employee is Eligible for Benefits

An individual eligible for a company’s pension, life insurance, or disability insurance benefits is called a participant.  The company that provides those benefits is called a provider or administrator.  Often the administrator is a third party and not the company that employees the participant. 

An administrator must follow certain steps prior to denying a participant’s application for benefits.   First an administrator must establish and maintain reasonable procedures governing the filing of benefit claims, notifications of benefit determinations, and appeals of adverse benefit determinations.   When denying a claim, the administrator must provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan was denied.  In simple English, the administrator must state the specific reasons for denying the claim and reference the provisions of the plan for which the denial is based.  After denying a claim, the administrator must provide the participant with a description of the plan’s review procedures and the time limits applicable to such procedures.  Moreover, the administrator must inform the participant whether the administrator needs any additional information to make a favorable decision.   

After an initial denial, an administrator must provide an opportunity for the participant to appeal the denial.  During the appeal, the administrator must provide a full and fair review.  During the entire review process, the administrators must ensure that benefit determinations are made in accordance with governing plan documents and that, where appropriate, the plan’s provisions have been applied consistently with respect to similarly situated claimants.  The administrator must include a statement of the claimant’s right to bring a civil action under section 502(a) of ERISA following a denial on review; provide the specific rule or a statement that a rule was relied upon in making the adverse determination, and a statement that a copy of such rule will be provided free of charge to the claimant upon request.

To provide a full and fair review an Administrator must:

  1. Upon request of a claimant, provide free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant’s claim for benefits.
  2. Take into account all comments, documents, records and other information submitted by the claimant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination;
  3. Consult with a healthcare professional that has appropriate training and experience in the relevant medical field when deciding an appeal of any adverse determination that is based in whole or in part on a medical judgment.
  4. Conduct a second review that does not afford deference to the initial adverse benefit determination.
  5. Have the person that conducts the second review be a new person and not be a subordinate of the person that performed the initial determination. 
  6. Consult a healthcare professional for an appeal of an adverse determination.  This healthcare should not be the individual who was consulted in connection the with initial adverse benefit determination that is the subject of the appeal nor the subordinate of any such individual.

In the Fourth Circuit, which Maryland is in, administrators cannot identify a new reason on appeal to justify why a participant is ineligible for benefits without giving the beneficiary the opportunity to appeal the new reason for the denial.  Moreover, prior to terminating benefits, an administrator needs to rely on substantial evidence and consider all symptoms, not just a select few.

If you have questions concerning your ERISA claim, contact the Law Office of Phillip E. Chalker at phillip@attorneychalker.com or (443) 961-7345.

ERISA: The Standard of Review When Determining if an Employee is Eligible for Pension Benefits, Disability Insurance, or Life Insurance

Section 502 of the Employee Retirement Income Security Act (ERISA) is a law that ensures that employees are given the work benefits that their employer provides.  (Section 502 of ERISA corresponds to 29 U.S.C. §1132).  If a company provides a benefit plan to employees, and the employee meets the standards to qualify for the benefits, the employer must provide the benefits to the employee.  Life insurance, disability insurance (both short term and long term benefits), and pension plans are types of plans that fall under ERISA. ERISA requires plans to provide participants with information about the plan and sets the minimum standards for participation in the plan, vesting, benefit accrual, and funding.   More specifically, ERISA is designed to help participants recover benefits due, enforce rights, and to clarify rights to future benefits under the terms of the plan.

Individuals participating in the plan are considered participants.  If a participant applies for benefits under the plan, and the plan administrator denies the participant’s claim for benefits the participant can ask the administrator to reconsider the claim.  (Appeals to the administrator are considered administrative appeals.)  A participant can bring their case to court once the opportunities for reconsideration at the administrative level are exhausted.  Often, ERISA claims are filed in federal court. 

If a participant chooses they can attempt to enforce their rights by bringing a lawsuit against the administrator.  In court, participants and administrators will often fight over the standard of review: de novo or abuse of discretion.  A brand new review is called a de novo review. Courts should conduct a brand new review to determine if a participant is eligible for benefits, unless the plan gives the administrator discretionary authority to award benefits.  If the judge proceeds with a de novo review he will review all records submitted to the administrator and potentially other records to reach a decision. 

Many plans incorporate language that give administrators discretionary authority to determine if a participant is eligible for benefits.   If the plan gives the administrator discretionary authority to decide if a participant is eligible for benefits, courts will review the claim by determining whether the administrator abused their discretion or made arbitrary and capricious decision. In abuse of discretion, the judge will only determine if the company came to a reasonable decision.   The abuse of discretion standard is not as favorable to the participant as a de novo review. 

Although plan administrators will often try to use language in their plan to ensure that courts use an abuse of discretion standard of review, sometimes the language the plan administrator uses is insufficient to permit courts to use the deferential abuse of discretion standard.  For example, an insurance company might not be able to rely on an abuse of discretion standard of review if they use language that states proof must be “satisfactory to us” to provide benefits.

If an employee is successful in court, they can be awarded the entirety of benefits due, court costs, and attorney fees. Hiring a knowledgeable attorney can help you in your ERISA claim.  If you need legal assistance for your ERISA claim, contact the Law Office of Phillip E. Chalker at phillip@attorneychalker.com or (443) 961-7345.



If you are under the age of retirement and have a mental or physical impairment that has rendered you or is expected to render you unable to work for at least 12 months, you may be eligible for Social Security disability benefits – money that can be used for food, rent, groceries, etc. Most people are eligible to apply for disability benefits. Eligibility comes from having a good past work record, being in financial distress, or both. Even more, your child may be eligible for Social Security disability benefits if he or she has an impairment that interferes with his or her ability to function. Lastly, you could be eligible for benefits if a deceased spouse was unable to work for at least 12 months because of an impairment.

Despite the number of people that are eligible for disability benefits, the Social Security Administration often denies individuals disability benefits because the applicants did not adequately articulate the symptoms they experience and obtain necessary medical records. When filing out the adult function report as part of the initial application, it is important to detail all the ways that your impairment(s) affect you, without exaggerating. Exaggerations will hurt your credibility. So, be thorough but honest. Moreover, collect all medical records from all of your health care providers and submit them into the record. The person that is reviewing your file will lean heavily on these records. Also, if possible, ask your health care providers to opine why you are unable to work, not just that you are unable to work, and submit these opinions into the record. Opinions from doctors are relied on more heavily than other professionals’. But any opinion could help. Also, submit statements from family, friends, and teachers detailing the effects of your or your child’s impairment(s).

As for the application process, your initial application is viewed by State Disability Determination Services (DDS). If you are denied at the initial level, you can appeal the denial and DDS will review your application again. You can appeal to an Administrative Law Judge if denied a second time. After which, you have the opportunity for another appeal. As you go through the appeals process you can submit additional records. These additional records show how your disability continues to affect you.

Everyone that applies for disability benefits can seek the help of an attorney at any point in the process. Attorneys will not get paid, unless you receive benefits. Because the money owed to the attorney will come from past due benefits, it is easy to budget for an attorney. Social Security regulations dictate that an attorney, without applying for a special exception, is entitled to no more than $6,000 dollars or 25 percent of past due benefits whichever is less. Since benefits accrue as the appeals process continues, the earlier in the process that you receive a favorable decision, the less you have to pay an attorney.   

In sum, a good initial application will help you obtain benefits and reduce attorney fees.

-Phillip Chalker, Esq. is an attorney who practices Social Security disability law and provides affordable legal representation to low-income clients. If you have any questions, his email address is phillip@attorneychalker.com or you can call him at (443) 961-7345 .


How the Maryland Consumer Protection Act Protects Tenants

The Maryland Consumer Protection Act (MCPA) protects “consumers” from several wrongful actions by “merchants,” including wrongful actions regarding “consumer realty.”  The term consumer includes lessees (tenants are lessees) and the term merchants includes landlords.  Consumer realty means real property that is primarily used for personal, household, family or agricultural purposes.

The MCPA states that a merchant may not engage in any “unfair or deceptive trade practice” when renting, selling, or offering to rent or sell consumer realty.  These practices are illegal whether or not the tenant is actually deceived or tricked in any way.

An unfair or deceptive trade practice includes the following: 

  • A false or misleading oral or written statement, visual description, or other             representation that has the capacity, tendency or effect of deceiving or misleading       
  • Representation that realty has a sponsorship, characteristic, or use that it does not have, or that it is of a particular standard, quality, or style that it is
  • Failure to state a material fact if the failure deceives or tends to
  • Use of a clause in a contract, including a lease, which waives the consumer's right to use a legal defense.

Examples are failure to disclose health and safety issues such as defective door locks and the lack of fire exits.

However, the MCPA’s protections are limited to only a violation that occurs during the establishment of the landlord/tenant relationship.  Richwind Joint Venture v. Brunson, 645 A.2d 1147, 335 Md. 661 (1994).   The court stated that at the time the lease is entered into, the landlord has superior knowledge.  However, the tenant has superior knowledge while in exclusive possession of the leased premises. 

A tenant (consumer) who believes to be a victim of an unfair or deceptive trade practice may file a complaint to get payment for losses resulting from the unfair or deceptive practice. In addition to this payment, a judge may award the tenant attorney’s fees if the tenant’s lawsuit is successful.

An Overview of Maryland's Unemployment Benefits Program

In Maryland, if an individual is terminated or performs less than full-time work that individual may be entitled to unemployment benefits.  Unemployment benefits are designed to protect individuals from involuntary unemployment.  To obtain unemployment benefits, an individual needs to apply for unemployment insurance benefits with the Maryland Department of Labor, Licensing and Regulation (DLLR).  (An individual applying for benefits is called a claimant.) From there, the DLLR will determine whether the claimant is eligible for benefits and the amount of benefits that the claimant is eligible to receive. 

Who Is Eligible

To be eligible for unemployment benefits, a claimant must have worked for someone else or a company.  (Independent contractors are not eligible for unemployment benefits.   Depending on the circumstances, even if there is a contract identifying someone as an independent contractor, by law that person may be considered an employee.  Thus, depending on the circumstances, that claimant may be eligible for benefits.  Checking with an attorney to determine if someone is considered a contractor can help your claim.)  If a claimant worked for an organization that operated primarily for religious purposes that claimant may not be eligible for benefits.  Furthermore, to qualify for benefits, a claimant must have worked at least two of the first four quarters within the last five quarters and must have earned sufficient wages.

To receive benefits, the claimant must be (1) able to work, (2) available for work, and (3) actively seeking work. “Able to work” means that a claimant is physically and mentally capable of working.  The claimant does not need to be physically and mentally capable of performing their last job, just capable of performing another job.  As for determining whether someone is available for work, a temporary medical impairment could delay the receipt of benefits if the impairment renders a claimant unable to work.   While receiving benefits, a claimant must apply for work, accept suitable work when offered, or return to self-employment when directed to do so.  An analysis of whether work is suitable focuses on a range of factors.  During the duration of the period that a claimant is obtaining benefits, the claimant needs to file proof that they continue to meet these three criteria and also that their claim for benefits is continuing.  Failure to properly file can result in the loss of benefits. 

To receive the full amount of benefits, a claimant must be terminated for a reason that does not constitute misconduct or have quit their job with good cause.  If the claimant is terminated from their job for simple misconduct or quits their job for valid circumstances, the claimant will still be eligible for benefits, but will subject to a penalty.  If a claimant quits their job without good cause and valid circumstances, or if the claimant is terminated for gross misconduct or aggravated misconduct, benefits will most likely be denied.  If an employee resigns in the face of being discharged, their resignation is treated as a discharge.  If the claimant received severance pay the receipt of benefits may be delayed.


DLLR’s decision to award benefits will focus on the reason the claimant left their job and the claimant’s availability for work.  If a claimant is not awarded benefits at the initial level, the claimant may appeal the decision.  Similarly, if an employer believes that the claimant should not be awarded benefits, the employer can appeal the decision.  Appeals must be filed within 15 days of the date of delivery of the determination notice.  The first level of appeals is heard by a hearing examiner.  The decision by the hearing examiner can be appealed to the Board of Appeals.  Either party can appeal the Board of Appeals decision and have the matter heard by the circuit court.  

If a claimant is awarded benefits, the claimant will receive benefits during the course of their employer’s appeal.  Benefits will only cease if there is a finding in favor of an employer.  If an employer is successful in their appeal, a claimant may have to repay DLLR the benefits received.    Similarly, if a claimant is overpaid benefits, the claimant may have to pay those benefits back.  (If a claimant was overpaid because he or she provide of false statements, the claimant will have to pay DLLR back with interest and could be subject to other penalties).


There is an abundance of case law that can be used to strengthen a claimant’s or a company’s chance of success when applying for benefits.   This case law provides parameters as to whether or not a claimant should be awarded benefits and for how long those benefits should be awarded.  An attorney well versed in this sort of law can be a valuable asset in an unemployment hearing.  If you need legal assistance in your unemployment hearing, contact the Law Office of Phillip E. Chalker at phillip@attorneychalker.com or (443) 961-7345.

The Basics of Debt Collection

The Federal Fair Debt Collection Practices Act (FDCPA) was created to stop abusive debt collection practices.  According to the FDCPA, a debt collector is someone whose principal purpose is to collect debts or who regularly attempts to collect debts.  Generally the FDCPA applies only to third party debt collectors, not internal collectors for an original creditor. 

If a debt collector communicates with a person other than the consumer, the debt collector must identify themselves, but they do not have to disclose their employer, unless specifically asked.  Moreover, the debt collector cannot tell the third party that the debtor owes a debt nor can a debt collector send mail to a third party that divulges that the debtor owes a debt.  The debt collector is limited to asking the third party for the consumer’s location.  If the debt collector learns that the consumer has an attorney and can readily ascertain the attorney’s contact information, the debt collector cannot communicate with a third party to ascertain the consumer’s location, unless the attorney fails to respond within a reasonable period of time to the debt collector. 

Unless a debt collector has permission from a consumer or from the courts, they are limited in the manner that they can communicate with the consumer.  Without permission, a debt collector cannot communicate with a consumer

  • at an unusual place or inconvenient time (It is presumed that before 8am and after 9pm are inconvenient times.);
  • if the consumer is represented by an attorney and the debt collector knows this or the information regarding legal representation was readily ascertainable, unless the attorney fails to respond within a reasonable period of time; 
  • at the consumer’s place of employment, if the debt collectors knows or has reason to knowthat the consumer's employer prohibits the consumer from receiving such communication; and
  • if a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer,  except
  • to advise the consumer that the debt collector's further efforts are being terminated; or to notify the consumer that the debt collector or creditor may invoke or revoke specified remedies which are ordinarily used by such debt collector or creditor.

In addition to the above protections, a debt collector cannot harass a consumer.  This means that a debt collector cannot threaten to or use violence or any other criminal means to harm the consumer physically, the consumer’s property, or their reputation.  The debt collector cannot use profane or abusive language or publish the consumer’s name as owing a debt, except to a consumer reporting agency.  Nor can the debt collector threaten to sale the debt to force payment.  Debt collectors cannot continuously call a consumer to annoy or abuse the consumer or call a consumer without disclosing the caller’s identity.

Debt collectors may not use any false or misleading representations to collect a debt.  This means that the collector cannot make false claims

  • that they are vouched for, bonded by, or affiliated with the United States or any State;
  • about the character, amount, or legal status of any debt;
  • about any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt;
  • that the individual is an attorney or that any communication is from an attorney;
  • that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to lose any claim or defense or become subject to a prohibited practice;
  • representing or implying that the consumer committed any crime or other conduct in order to disgrace the consumer;
  • to collect or attempt to collect any debt or to obtain information concerning a consumer;
  • that accounts have been turned over to innocent purchasers for value;
  • that documents are legal process when they are not or that documents are not legal process when in fact they are legal process; or
  • that a debt collector operates or is employed by a consumer reporting agency.

Nor can the debt collector

  • state that the nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action;
  • threaten to take any action that cannot legally be taken or that is not intended to be taken;
  • communicate or threaten to communicate credit information which is known or which should be known to be false;
  • use any written communication that represents to be a document authorized, issued, or approved by a government agency;
  • fail to disclose in communications with the consumer the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose; or
  • use an organization’s name other than the true name of the debt collector's organization.

Debt collectors are also not allowed to use unfair or unconscionable means to collect or attempt to collect a debt.  This includes

  • collecting an amount not expressly authorized by an agreement;
  • accepting a check postdated by more than five days, unless the debt collector informs the consumer in writing of his intent to deposit the check or instrument not more than ten nor less than three business days prior to such deposit;
  • concealing the purpose of the communication;
  • taking or threatening to take a non-judicial action to obtain or disable the property if the debt collector does not have a right to do so or does not actually have an intent to; or
  • communicate by mail if the outside of the mail indicates a debt is owed.

When contacting a consumer, unless contained in the initial communication, a debt collector must send the consumer a letter detailing the amount of debt, to whom the debt is owed, and inform the consumer that within thirty days after receipt of the letter, if the consumer “disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector.” Moreover, the letter must contain a statement that unless the consumer disputes the debt or part of the debt in writing, “the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector.” Lastly, the letter should state that “upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.”

If the consumer notifies the debt collector in writing within the thirty-day period that he or she is disputing all or a portion of the debt or requests the name and address of the original creditor, the debt collector has to stop collection actions until they verify the information that they are requesting.  If the consumer decided to pay part of the alleged debt, the debt collector cannot apply the payment to any disputed amount.

If a debt collector violates any of the protections afforded to the consumer they can be held liable for civil damages. However, if the debt collector can prove that their action was not intentional and resulted from a bona fide error, they may be able to avoid liability. 

There is an abundance of law that may be to be used to strengthen an individual’s or a company’s chance of success in a debt collection matter.   An attorney versed in this sort of law can be a valuable asset.  If you need legal assistance with a debt that is being collected, contact the Law Office of Phillip E. Chalker at phillip@attorneychalker.com or (443) 961-7345.

The Eviction Process for Failures to Pay Rent

Landlords can evict the occupants of their property in a variety of ways.  Landlords can evict a tenant for holding over, breaching the lease, or failing to pay rent.  Landlords can also evict an occupant if the person is occupying the property without the landlord’s permission and there is no contract between the occupant and property owner and the property owner never accepted rent payment.

Landlords can evict a tenant that fails to pay their rent.  To evict a tenant that has failed to pay rent, a landlord must file a complaint with the court.  Failure to pay rent cases are heard five days after the complaint is filed.  After the complaint is filed with the court, the landlord needs to properly serve certain required documents to the tenant.  After the tenant is served with these documents, there will be hearing where each side can explain their story, after which the court will issue a ruling. 

Both the tenant and the landlord have four days to appeal a failure to pay rent decision.  If the tenant appeals the decision, the tenant can stay in the property until the appeal is heard.  However, in order to file an appeal, a tenant but must promise to the court in an affidavit that they are not appealing to delay the eviction and the tenant must pay a bond. 

If the tenant has not moved out after four days and the tenant has not filed an appeal, the landlord may file for a warrant of restitution, which tells the sheriff to help the landlord retain his property and allows the landlord to remove the defendant’s belongings from the property.  A landlord needs to request a warrant of restitution within 60 days of the court’s order in the failure to pay rent hearing, or the landlord will need to go to court again and receive another favorable order in a failure to pay rent case.

At any time before the tenant is actually evicted, the tenant can pay the landlord the amount of rent due.  If the tenant pays the entire amount of money that the landlord alleged in the complaint that was unpaid, the tenant is permitted to stay on the property and will not be evicted.  A tenant only has the right to catch up on rent after a judge has ruled for the landlord three times within a 12 month period, except in Baltimore City where the tenant can do so four times in a 12 month period.  If additional money becomes due to the landlord before the tenant is evicted, but the tenant pays the landlord the amount that was alleged in the complaint, the landlord will need to file a second complaint for a failure to pay rent in order to evict the tenant. 

As a defense for failing to pay rent, the tenant can allege that the landlord did not repair a defect to the house that posed a danger to human health or safety.  This defense strategy is most effective when the tenant gave the landlord at least one month’s notice prior to the hearing.  Examples of major safety issues include rats or mice, toilets that do not flush, a lack of heat, lead paint, and fire hazards.  If the court agrees with the tenant, the court can order the tenant to pay rent escrow to the court, order that the tenant owes a reduced amount of rent or no rent, or allow the tenant to break the lease.

To evict a tenant in any circumstance, a landlord needs to use legal channels. Landlords cannot lock a tenant out or force a tenant out by cutting off their utilities. Moreover, landlords cannot use an eviction proceeding to retaliate against a tenant for filing a complaint or lawsuit. 

If you need legal assistance in a failure to pay rent case, or in any other legal proceeding, contact the Law Office of Phillip E. Chalker at phillip@attorneychalker.com or (443) 961-7345.

Tenant Holding Over Actions

A tenant holding over is an individual that continues to stay in a property after the lease is expired and without the landlord’s permission. If a tenant stays past the expiration of the lease, the landlord can sue the tenant for damages.  Damages include actual damages done to the property, loss of income because the landlord could not use the property for another purpose, and/or for failing to pay rent after the lease expired.  If a tenant holds over, a landlord has the right to evict the tenant or to hold the tenant to a new periodic tenancy.  If the landlord allows a tenant stay after the original lease has expired, a de facto month-to-month lease is created, unless the lease said something different, or if the terms of the lease were shorter than month-to-month.

To evict a tenant holding over, the landlord must give the tenant proper written notice to leave the property.  If the tenant does not leave, after written notice is received, the landlord can file a written compliant with the appropriate District Court.  After the complaint is filed with the court, the landlord will need to properly serve certain documents to the tenant.  If the tenant pays the landlord after they receive the notice or the served documents, the landlord can still evict the tenant, unless the landlord and tenant agree to something else in writing. 

When before court, both the landlord and the tenant will have the time to explain their side of the story and why or why not the tenant should be evicted.  If the court rules in favor of the landlord, the tenant will have to leave the property within four days and may be required to pay the landlord’s cost for filing the suit.  (If the tenant has a doctor’s note saying that it is dangerous to leave, the tenant can have up to 15 days before they have to leave the property. If the property is in Baltimore City, and the tenant has a doctor’s note, there is no time limit by which the tenant has to leave.)  If the tenant has not moved out after the prescribed time, the landlord may request a warrant of restitution.  A warrant of restitution tells the sheriff to help the landlord retain his property and allows the landlord to remove the defendant’s belongings from the property.  A landlord needs to request a warrant of restitution within 60 days of the court’s order for eviction, or the landlord will need to go to court again to receive another order for eviction.

Either party can appeal the court’s decision.  If the tenant appeals the decision, the tenant can stay in the house until the appeal is heard.  As part of the tenants appeal, the tenant must promise to the court in an affidavit that he or she is not appealing to delay the eviction and the tenant must also pay a bond to the court.  The bond helps ensure that the tenant will diligently handle the appeal and pay any damages, including overdue rent and court costs, to the landlord for the duration that the tenant occupies the property. Tenants have ten days to file an appeal in a tenant holding over action. 

If you need help with a tenant holding over case or any other landlord tenant action, contact the Law Office of Phillip E. Chalker at phillip@attorneychalker.com or (443) 961-7345.

Usurious Contracts: Identifying Illegal Interest Rates

The general rule in Maryland is that lenders may not charge an effective rate of simple interest greater than six percent annually.  An effective rate of simple interest is a flat interest rate, not a compound interest.  However, because lenders can require borrowers to pay interest as interest accrues, calculating the amount of interest charged is a little more complicated than just multiplying the principal by the rate of interest.  Despite the general rule, there are many circumstances when lenders can and do charge more six percent. 

For example, a lender may charge up to 24 percent interest if there is a written loan and the collateral is not a savings account, the loan is unsecured, or the loan is not secured by real property.  (If the loan was made before July 1, 1982, the interest rate is limited to 18 percent.)  However, if a lender is going to charge a rate of interest of 24 percent, the loan needs to meet a few requirements. These requirements can be found in Md. Commercial Law Code Ann. §12-103.  Typically, the interest rate on car loans and on such things as furniture can reach as high as 24 percent.

Although a loan on its face value may claim to charge up to 24 percent, lenders sometimes illegally charge more by sneaking in hidden fees.  A loan that charges more than the legal rate of interest is called usurious and is prohibited by law.  In many circumstances, the law considers fees, such as processing fees and financing fees, to be interest.  Below are some circumstances that are considered usurious and, therefore, illegal.

  • If a lender is charged compound interest and the sum of the interest exceeds a flat interest rate of 24 percent, that contract is usurious and prohibited by law. 
  • If there is an interest rate approaching 24 percent and the lender charges a processing fee or financing fee, the contract could be usurious.

If the requirements found in Md. Commercial Law Code Ann. §12-103 are not met, lenders can only charge 8 percent on the on the unpaid principal balance of a loan if there is a written agreement signed by the borrower which sets forth the stated rate of interest. However, if the loan is a written agreement secured by a certificate of deposit held by the borrower, the lender cannot charge an interest rate in excess of 2 percent of the interest rate payable on the certificate of deposit.

Generally, if the loan is secured by a mortgage or first deed of trust on any interest in residential real property, a lender can charge any interest rate, providing certain requirements are met.  Once again, these requirements can be found in Md. Commercial Law Code Ann. §12-103.  In addition, any interest rate can be charged on commercial loans in excess of $ 15,000 not secured by residential real property and on commercial loans in excess of $ 75,000 secured by residential real property.

If you have concerns about a contract, the rate of interest that you were charged, or on another legal matter, please contact the Law Office of Phillip E. Chalker at phillip@attorneychalker.com or (443) 961-7345.

Repossession: Consumer Rights and Lender Obligations

Maryland law provides a process by which a lender may repossess goods securing a loan.  For example, assume a person obtains a loan to person to buy a vehicle and that loan is secured by the purchased vehicle.  If that purchaser does not live up to the repayment provisions of that loan, the lender may repossess that vehicle.  The legal term for not repaying the loan is “default.”  Generally, a borrower is in default if that borrower fails to make a payment due under the loan’s terms.   

At least 10 days before repossessing the goods that secured the loan (in this case the vehicle) on which the borrower defaulted, the lender MAY, in writing, inform the borrower of his intent to repossess the goods.  If the lender does not send one of these discretionary notices, they cannot charge the borrower any repossession expenses.  Regardless of whether the lender informs the borrower of their intent to repossess the goods, within 5 days after a lender repossess goods, that lender must send or deliver to the borrower a notice.  The notice must briefly state the right of the borrower to retake possession of the goods and the amount payable for them. (Retaking possession of the goods is legally referred to as redeeming the goods).  The notice must also state the right of the borrower as to a resale and the borrower’s liability for any deficiency.  (Resale is the sale of the borrowed goods by the lender.  The proceeds of the sale are used to pay the deficiency.)  Further, the lender must inform the borrower where the goods are stored and the address where any payment is to be made.  The lender cannot sell or dispose of the goods for at least 15 days after such written notice.

During this 15 day period, the borrower may redeem and take possession of the goods and resume performance of the loan agreement.  Basically, to redeem the goods, the borrower must pay any amounts due under the loan agreement.  Further, if the lender provided advance notice, the borrower must pay the expenses of retaking and storing the goods.

If the borrower does not redeem the goods, the lender may sell the goods at a private or public sale.  At least 10 days before the sale, the lender must notify the borrower in writing of the time and place of sale.  If the goods are sold at a private sale, the lender must, in writing, provide the borrower a full accounting of the sale.  The Commissioner of Financial Regulation may determine that the sale was not done in a commercially reasonable manner and enter an order disallowing any claim for a deficiency balance.  If the goods are sold at a public sale, the lender must provide the borrower a written statement showing the distribution of the sale proceeds.

Finally, the lender is not required to sell the goods.  Rather the lender may keep the repossessed goods.  If the lender keeps the goods, the borrower is discharged from all obligations.

If the lender does not follow these requirements, they are prevented from collecting a deficiency judgment from the borrower.

If you have a question regarding the repossession of goods or need help in a legal matter, contact The Law Office of Phillip E. Chalker at (443) 961-7345 or phillip@attorneychalker.com.

A Vehicle Buyer's Protections When Financing Is Not Approved

If a consumer buys or leases a motor vehicle from a dealer and the dealer arranges for the consumer to receive financing through a third party, Maryland law provides both the consumer and the dealer certain protections.  When a consumer buys a vehicle, both the consumer and the dealer must sign a dealer provided notice that discusses your legal protections.   

That notice should inform the consumer that if the third party finance company does not approve the financing within 4 days of the delivery of the vehicle to the consumer, the dealer must notify the consumer in writing that the financing has not been approved.  Upon receiving this notice, the consumer or the dealer may cancel the lease or sale.  Alternatively, the consumer and the dealer may agree on new financing terms.

If the consumer or the dealer cancels the sale or lease because of financing, the dealer must immediately return all money paid to the consumer.  This includes the down payment, any subsequent payments, all taxes, fees (including titling fee), and any other charges assessed.  If the consumer traded in a vehicle, the traded in vehicle must be returned to the consumer in the same condition in which it was when delivered it to the dealer.  Furthermore, the dealer is not permitted to charge the consumer for use of the vehicle.

If your financing fell through, and the dealer does not comply with these requirements, you may be entitled to damages plus attorney fees. Contact The Law Office of Phillip E. Chalker at (443) 961-7345 or at phillip@attorneychalker.com to discuss your case.

Of note, within two days of receipt of the notice that financing was not approved, consumers must return the vehicle to the dealer.  Except for normal wear and tear, the vehicle must be returned in the same condition in which it was when the consumer received it.  If the consumer does not return the vehicle, the dealer may repossess it.  However, even if the vehicle was not returned to the dealer a consumer may be able to collect financial damages.

Security Deposits: Landlords and Tenants' Rights and Obligations

When tenants move out of their rental unit, they often feel as if their landlord unjustly took their security deposit.  When that is the case, tenants have recourse. Under Maryland law, landlords cannot take money from a tenant’s security deposit for normal wear and tear.  That means that landlords ordinarily cannot charge a tenant to clean a house that the tenant left in broom clean condition.  Unfortunately for landlords, they have to repaint walls and replace a carpet every now and then; that is the cost of doing business. So depending on the circumstance they may not even be able to charge the tenant for those costs. 

In Maryland, the cost of the security deposit is limited to no more than two month’s rent.  When a tenant pays a security deposit the landlord should provide the tenant with the receipt.  Often, the receipt is embedded in the contract.  The receipt has to include information about tenants’ rights.  The receipt should inform the tenant that the tenant can inspect the property for damages that exist at the start of the tenancy.  Also, the receipt should indicate that the tenant has the right to inspect the premises at the end of the tenancy, that the landlord needs to inspect the property within 5 days before or after the tenant moves out, and the landlord has an obligation to notify the tenant in writing of the date of the inspection.  These are just some of the provisions that need to be included in the receipt.  Landlords need to keep the security deposit receipt for two years. 

Security deposits can be withheld for unpaid rent, damages due to breach of lease, or for damage caused by the tenant to the rental unit.  In the majority of cases, the landlord will have to return the unused part of the tenant’s security deposit with interest.  Landlords must deposit all security deposits in federally insured financial institutions that do business in Maryland within 30 days after receiving the security deposit.  In addition, the landlord has to return the security deposit to the tenant and provide a written list of damages and a statement of the costs actually incurred within in 45 days of the end of the tenancy.  If the landlord does not inform the tenant of damages, the cost of the damages or does not return the security deposit within 45 days, the landlord is unable to keep any of the security deposit.  If the landlord erroneously withholds any part of the security deposit for too long, the landlord is subject to triple damages and may have to pay the tenant’s attorney fees.  If the tenant is ejected, evicted, or abandons the premises prior to the termination of the lease, the landlord does not have to return the security deposit within 45 days, unless the tenant requests so by first-class mail and only upon receipt of the letter by the landlord does the 45 day clock start.

Of note, if the tenant informs the landlord by certified mail of the tenant’s desire to be present at the inspection, the tenant has a right to be there upon inspection.  For both landlords and tenants it is a good idea to take pictures of a rental unit at the start of occupancy and after the tenant moves out.  This will help protect you should there be a landlord-tenant dispute involving the tenancy.

If you have a question regarding landlord-tenant issues, contact Phillip Chalker by phone (443) 961-7345 or by email phillip@attorneychalker.com to schedule a free consultation where we will review the facts of you case and create a plan going forward.

Consumer Protections for Buyers of Used Cars

In Maryland, if you buy a used vehicle and it turns out to be a lemon there are various laws that may protect you.  For example, unless the dealership states otherwise in a written contract, your vehicle comes with an implied warranty that the vehicle is fit for transportation i.e. the vehicle is drivable.  A waiver of the implied warranty has to be in writing and signed by the customer.  If your vehicle has less than 60,000 miles on it and it is less than six years old, a car dealership cannot sell you a vehicle without the warranty that the vehicle is fit for transportation.  In addition, according to the Federal Trade Commission, dealers that sell more than five vehicles a year must post a buyer’s guide in every used vehicle that is offered for sale.  The guide must state whether the vehicles is sold as is or with a warranty and what the warranty covers. 

Even if you buy a used vehicle, depending on how old your vehicle is and how many miles are on the vehicle, the manufacturer’s warranty may still cover defects with your vehicle.  The Magnuson- Moss Warranty Act prohibits manufacturers from waiving an implied warranty or conditioning a warranty on the use of certain brand name products, unless they are given permission to do from by the Federal Trade Commission.  This means that if you buy a used vehicle, unless the manufacturer offers to fix items for free, you can use the mechanic of your choice and non-brand name products, such as transmission fluid, as long as they are equivalent to what the dealer instructs you to use.  To verify that a manufacturer’s warranty is still in place, get the vehicle identification number (VIN), and call the manufacturer to verify.  In addition to the manufacturer’s warranty, you may be able to purchase a warranty from the dealer to protect you against any defects that may arise.  A warranty bought from a dealer would be in addition to the manufacturer’s warranty and not replace the manufacturer’s warranty.

Moreover, when selling a vehicle, a dealer cannot make a material misrepresentation.  In addition, dealers have to let the consumer know if there vehicle was used for anything other than a consumer good, e.g. was it used as a taxi or used for business purposes.

As a precaution, prior to buying a used vehicle, you should have a mechanic that you trust inspect the vehicle.  You should also run a vehicle history report.  If you get a vehicle history report through the Motor Vehicle Administration (MVA) the report may tell you if the vehicle was damaged beyond market value or was stolen. This can alert you to problems that your car may have. 

If you have a question regarding a car sale, contact Phillip Chalker by phone (443) 961-7345 or by email phillip@attorneychalker.com to schedule a free strategy session.  We will review the facts of you case and create a plan going forward.

How to Serve a Defendant

In Maryland, in order to start a lawsuit, a plaintiff, the person bringing the lawsuit, must file a complaint with the Clerk of the Court and then serve the complaint to the opposing party.  (A complaint is a statement of facts and law that states what the case is about and what the plaintiff is seeking.)  After filing the complaint with the court, the complaint must be served on the opposing party to ensure the opposing party has a copy of the complaint and is on notice that they will be part of a trial.  Plaintiffs must comply with certain rules when serving a complaint. If the rules are not followed, the court will not have jurisdiction over the defendant and the plaintiff will not be successful in court.  (When an organization or government is the defendant, in general, service is made by serving the resident agent of the business or a particular government official.)

After a complaint is filed, the Clerk will issue a summons for each defendant and, as directed by the plaintiff, the Clerk will deliver it, together with a copy of each paper filed, to the sheriff, to the plaintiff, or mail it to the defendant by certified mail.  A summons is a notification to the person being sued (defendant) that a law suit has been filed.  

If the plaintiff elects to have the sheriff serve the opposing party, the plaintiff pays the Clerk of the Court for the cost of this service and the Clerk will have a sheriff deliver the papers to the opposing party.  As proof of service, the sheriff will send the Clerk “return of service” to prove the defendant was served.  Plaintiffs should call the Clerk to verify that the opposing party was served.

In addition, the plaintiff can have the Clerk send the plaintiff the Writ of Summons in the mail.  When this happens, the plaintiff can have a processing company, an adult over the age of 18, or the sheriff serve the complaint.  If a private processing company is hired to serve the defendant, the plaintiff would give the process server, a person whose job it is to serve parties, all the documents that need to be served (the complaint, the original copy of the Write of Summons, the case information report, and any accompanying documents) and have the process server fill out an Affidavit of Service once they deliver the papers to the opposing party. An Affidavit of Service is a document where the process server promises to the court that he delivered the required documents to the defendant.  The plaintiff must then file this affidavit and a copy of the Writ of Summons with the Clerk of the Court.   The plaintiff must also give the Clerk the name, address, and telephone number of the private process server. 

The plaintiff can also have an adult over the age of 18 and who is not a party to the case deliver the required documents directly to the other side.  While the third party cannot simply leave the documents at the opposing side’s doorstep, they can leave the documents with someone over the age of 18 that resides at the defendant’s home.  After serving the defendant, the third party must then complete an Affidavit of Service, which the plaintiff must file along with a copy of the Writ of Summons with the Clerk, just like if a private process servicer served the opposing party.  The third party can also send the necessary papers to the defendant by certified mail, restricted delivery, return receipt requested.  If the plaintiff chooses to use this form of service, an adult other than the plaintiff must mail the required documents (the complaint, the Write of Summons, and any accompanying documents) and then must complete an affidavit indicating that he or she mailed the necessary documents and the other side received them.  The Affidavit, the green receipt that is returned to the sender upon receipt by the defendant, and a copy of the Writ of Summons should be filed with the Clerk.  Service is only complete if the opposing party signs the green receipt.  If someone else signs for them, service is not complete.   If a plaintiff is unable to serve the opposing party, they can still go to the sheriff and have them serve the other party. 

Lastly, the plaintiff can have the court serve the defendant by certified mail. In this case, the court would mail the necessary documents to the defendant.  If the defendant does not receive the certified mail and a return receipt is not returned, then service was not sufficient for the court to gain jurisdiction over the defendant.  If this is the case, the plaintiff will need to find a new way to serve the defendant.

In all of these instances when a defendant has acted to evade service, the court may order that service be made by mail to the defendant’s last known residence and by delivering a copy to the defendant’s place of business.  If some instances, a plaintiff may have to try an alternative method, including posting a notice in a newspaper, to serve the opposing party. 

In general, if service is not completed within 60 days in circuit court or 30 days in district court, the plaintiff will have to ask the Clerk to issue a new Writ of Summons. If service of process cannot be made, the court must be notified as soon as practicable, but in no event, later than 10 days following the termination of the validity of the process.

If you have a question regarding any legal matter, contact Phillip Chalker by phone (443) 961-7345 or by email phillip@attorneychalker.com to schedule a free strategy session.  We will review the facts of you case and create a plan going forward.

Affordable Legal Services

This article discusses some of the ways to eliminate the need to pay out-of-pocket attorney fees. Depending on the type of case, attorneys may charge an hourly fee, a flat fee, or a contingency fee.  When an attorney charges a contingency fee, the attorney is only paid if they win the case or reach a settlement.  Contingency fees are typically only used in plaintiff’s work. 

Individuals can also recover attorney fees when a contract between them and the opposing party contains a fee shifting provisions.  There are two types of fee shifting provisions: bilateral and unilateral.  A bilateral fee shifting provision is used in contracts to protect parties from litigation and requires the party that losses a lawsuit to pay the prevailing side’s attorney fees.  A unilateral fee shifting provision only shifts attorney fees when a specified party requires legal services. For example, a contract, such as a lease, might state that the tenant has to pay a landlord’s attorney fees when the landlord requires the services of an attorney.  In this example, the landlord can bill their tenant for the cost of attorney fees accrued prior to the start of a lawsuit.  A judge does not have to approve of fees accrued prior to the start of litigation, unless the lawsuit involves those these charges.  Then, if a landlord is successful in litigation, a judge could award the landlord attorney fees accrued during litigation.  In this example and in many other scenarios, the law will state if the party that is not protected by the unilateral fee shifting provision is successful in litigation that party can collect attorney fees from the protected side. (While unilateral fee shifting provisions are legal in Maryland, many states do not permit unilateral fee shifting.)  Despite what a contract may state, a judge can choose not to enforce a fee shifting provision.  When a judge does not enforce the provision, neither side will recover attorney fees from the opposing party. 

In addition, there are many laws that shift the cost of attorney fees to lessen the financial burden for certain types of people, such as consumers when suing over a product they purchased, employees when suing over unfair labor practices, or tenants when suing for failure to accommodate a disability or for the return of their security deposit.  (Many types of consumers are protected, including tenants, purchasers of products, clients of banks, etc.)  In these cases, if the protected individual prevails on a significant issue they may be entitled to attorney fees.  (A party does not have to prevail on all issues or recover all of the damages that he or she sought to be awarded attorney fees.)  These types of laws are designed to discourage improper behavior by people and companies with superior economic power and to encourage lawsuits that will further public policy goals.  In addition to awarding attorney fees, some laws permit protected individuals to collect more than the amount needed to cover their damages; sometimes three times more than they are damaged. 

If you have a question regarding any legal matter, including whether you can recover attorney fees from the opposing side, contact Phillip Chalker by phone (443) 961-7345 or by email phillip@attorneychalker.com.

The Outcome of an Administrative Hearing for a DUI/DWI

If you are charged with driving under the influence or driving while intoxicated, your license will be taken by the police and you will be issued a temporary license that lasts 45 days.  On the 46th day your license will be suspended.  To continue driving, you can fight your suspension in an administrative hearing or enter the ignition interlock system.  You can extend the length of your temporary license to the date of your administrative hearing, by asking for a hearing within 10 days of being charged. You have 30 days to request an administrative hearing, but the 45 day time limit of your temporary license will not be extended if you request your hearing after the 10th day.  

When a driver enters the ignition interlock program, he or she can only drive cars that are equipped with an ignition interlock system.  These systems prevent a car from starting until the driver has breathed into a device and the device has determined the driver is sober.  The driver will have to breathe into the device periodically while driving. Typically, there is an installation cost and a monthly service fee with the ignition interlock program.  The driver will need to breathe into the interlock system at least 50 times per month or explain to the Motor Vehicle Administration why he or she was unable to breathe into the device 50 times a month. Drivers in the interlock program, must file a monthly report with their interlock system provider so that providers can make sure that drivers are complying with the program. 

If having your license suspended or only being able to drive cars equipped with ignition interlock systems is not acceptable, you can request an administrative hearing.  In an administrative hearing, the judge does not have to allow you to participate in the ignition interlock program.  You are only guaranteed entry into the program if you enter into the program prior to the hearing. At the hearing, the administrative law judge can decide to suspend your license, allow you to enter into the ignition interlock program, enter the ignition interlock system and allow you to drive work vehicles that are not equipped with ignition interlock devices, or find that your license should not be suspended.  If you can show that the officer induced you into refusing the chemical test by providing misinformation you can beat the suspension. 

At the hearing, the only facts the administrative law judge will consider are:

  1. Whether the police officer had reasonable grounds to believe you were driving or attempting to drive while under the influence of or impaired by alcohol or drugs;
  2. Whether there is evidence that you used alcohol or drugs;
  3. Whether the police officer advised you of administrative sanctions before requesting the in-station chemical breath test;
  4. Whether you refused to take the test;
  5. Whether you drove or attempted to drive while having a alcohol concentration of 0.08 or more;
  6. Whether you drove or attempted to drive while having an alcohol concentration of 0.15 or more; and
  7. If the hearing involves disqualification of a commercial driver’s license, whether you were operating a commercial motor vehicle or held a commercial driver’s license.

For help navigating the administrative hearing, contact the Law Office of Phillip E. Chalker at (443) 961-7345 or at phillip@attorneychalker.com.

Refusing to Take a Chemical Test When Pulled Over for a DUI/DWI

In Maryland, if an officer pulls over a vehicle and suspects that the driver was driving while impaired or under the influence of drugs or alcohol, the officer will ask the driver to take a variety of tests.  Drivers can refuse all of these tests.  Except for the chemical breath test in the police station, drivers will not be penalized for refusing to take these tests. 

Maryland is an implied consent state.  This means that if a driver was lawfully stopped and detained by an officer, and the officer had probable cause to believe the driver was impaired, at the request of the officer, the driver must either take a chemical breath test at the police station or have their license suspended. 

The suspension is an administrative penalty that is not related to any criminal penalties that a driver may face.  The suspension will begin 45 days after the incident, unless the driver requested an administrative hearing within 10 days of being charged.  If the driver requests an administrative hearing within 10 days of being charged, their license will be suspended on the day of their administrative hearing.  (A driver can choose to have their license suspended earlier.)   Drivers have up to 30 days to request an administrative hearing, but their license will still be suspended after day 45 if they did not request the administrative hearing by day 10.   Rather than facing a suspension,  drivers that refuse to take a breath test can keep their license if they enter into the ignition interlock program.  However, except for a potential exception for work provided vehicles, the driver will only be able to drive vehicles equipped with an ignition interlock system.  (For more information on the ignition interlock system, click here.)

When a driver refuses to take the in-station breath test, an officer should inform the driver that their license will be suspended for refusing to take the test.  The officer should also tell the driver what happens if the driver takes a chemical test and has above a 0.08 or above a 0.15 blood alcohol content.   Prior to suspending a driver’s license, the officer will have the driver sign a DR-15 form.  This form advises drivers of their administrative rights.  The police officer should read the DR-15 to the driver or play a recording of someone reading the DR-15.  An officer’s failure to follow these steps might be considered misleading. 

If a driver can prove in an administrative hearing that the officer gave misleading information or induced the driver into refusing the test, the driver will only be without his or license for a short time – the period between the administrative hearing and going to the Motor Vehicle Administration to get a new driver’s license.  Licenses are confiscated at the administrative hearing, so drivers leave without their license.

If you refused to take a breath test and need help with the resulting legal matter, contact the Law Office of Phillip E. Chalker at (443) 961-7345 or at phillip@attorneychalker.com.

Getting a DUI/DWI: The Process from the Time Pulled Over Until Court

When an officer makes a traffic stop and has reason to believe you are driving under the influence (DUI) or driving while intoxicated (DWI), the officer will talk to you to assess whether you are impaired.  The officer may ask if you have had anything to drink or where you were earlier in the night.  You do not have to answer these questions.  In fact, answering these types of questions can give the officer reason to believe you are intoxicated.  Whereas, answering these questions may do little to stop an officer from continuing his assessment as to whether or not you are impaired.

If the officer believes that you are impaired, the officer will ask you to perform a variety of tests.  These include field sobriety test exercises, such as walking toe to heel in a straight line or standing with one foot raised off the ground, saying the ABCs backwards, counting backwards, and an eye examination.  These tests are administered to establish whether you are impaired.  However, you do not have to take any of the field sobriety tests.  While refusing to take these tests will limit the amount of evidence the state has against you in a criminal proceeding, the officer still has the right to arrest you for suspicion of drunk driving. 

After administering the field sobriety tests, but prior to arresting you, an officer may ask you to take a preliminary breath test (PBT).  For the PBT, you blow into a portable hand-held breath test device that calculates your blood alcohol content.  You are not compelled to take a PBT and the PBT cannot be used against you in a criminal or civil proceeding.   

Once at the station, you will be subjected to one or two chemical tests to determine your alcohol and/or drug concentration.  You can refuse to take the chemical test(s) until you speak with your attorney.  (For more information on refusing to take the breath test at the police station click here.)  Meeting with an attorney can give you additional information to help you decide whether it is in your best interest to breathe into a chemical test.  In fact, an attorney can even give you a breath test to determine if you should take the police’s chemical breath test.  You have up to two hours to take the chemical breath test, so long as you are not delaying taking the test to sober up.  Waiting for an attorney to arrive at the station is not considered delaying the test to sober up. 

Blowing above a 0.08 on the in-station chemical breath test results in a (DUI) citation and subjects you to criminal and administrative penalties.  The penalties are worse if you have a blood alcohol content of 0.15 or higher or if there was a child in the car. (If you are pulled over for driving erratically and have ablood alcohol content of 0.07 or less, you could be charged with driving while impaired.)  If driving while impaired or under the influence, the police officer will confiscate your license and issue you a temporary license.  The license is only good for 45 days. On the 46th day your license will be suspended.  You can fight your suspension in an administrative hearing or enter the ignition interlock system to continue driving.  You can extend the length of your temporary license to the date of your administrative hearing, by asking for a hearing within 10 days of being charged.  You have 30 days to request an administrative hearing, but the 45 day time limit of your temporary license will not be extended if you request your hearing after the 10th day.  (For more information on the administrative hearing click here.)    

Criminally, you will have to go to court for a preliminary inquiry about 30 days after your arrest.  This hearing advises you of your rights as a result of being charged.  You must attend the preliminary hearing, unless you hire a lawyer and the lawyer notifies the court in writing that he or she is representing you.  After the preliminary inquiry, (often a few months after) there will be a criminal hearing to determine whether you are guilty of a DUI or DWI.  A guilty finding in the criminal system is separate from the administrative penalties.  Judges have the ability to incarcerate you, fine you, or find you innocent.  You can also enter into a plea deal with the states attorney.  A common plea deal is probation before judgment (PBJ).  A PBJ is not a guilty finding.  In addition to these criminal sanctions, if the court finds you guilty, the Motor Vehicle Administration will put points on your record.  Insurance companies will often increase your rates when you have points on your record.

A lawyer can walk you through the ordeal that comes with getting a DUI or DWI.  If you need help with your citation, please contact The Law Office of Phillip E. Chalker at (443) 961-7345 or at phillip@attorneychalker.com.

High Stakes in Maryland Administrative Hearings

At the Maryland state level, administrative hearings are extremely important and are used to decide appeals of administrative agency decisions.  For example, these agency decisions might preclude someone from collecting insurance, result in a suspended driver’s license, or require someone to pay a fine. Generally, before appealing an agency’s decision to a court, a party has to exhaust all administrative remedies, including having an administrative hearing.   

In Maryland, administrative hearings are presided over by Administrative Law Judge (ALJ) and are commonly held by the Office of Administrative Hearings, an executive branch agency.  (Almost half of the administrative hearings are related to issues concerning the Motor Vehicle Administration.) Depending on the matter, after the hearing, the ALJ either makes a decision on the appeal or makes a recommendation to the agency with jurisdiction over the matter.  The agency can choose whether it follows the recommendation. 

Once all administrative remedies are exhausted, a party typically has 30 days to appeal to a court an agency decision by filing a petition for judicial review.  (Filing a petition for agency review does not automatically stop an agency action.  The petitioner has to file a motion with the court to delay the agency action until the court has ruled on the matter.) An appeal can be filed in any county where a party resides or has a principal place of business.  In order to overturn an ALJ’s decision, a reviewing court needs to find that the ALJ’s opinion was arbitrary.  In most instances in Maryland, courts review the administrative decision in the light most favorable to the administrative court.  A court will not reverse an ALJ’s decision simply because it would have ruled differently.  The ALJ’s decision will stand as long as it is legally sufficient and reasonable given the evidence.  (In worker’s compensation cases, the reviewing court will hear the case de novo, meaning the court will issue a new decision and not rely on the Administrative Law Judge’s decision.)  If a party wants to admit additional evidence at the circuit court level, they must provide the court with a good reason why the evidence was not offered at the administrative level.  At the conclusion of the case, the reviewing court can then remand the decision for additional consideration by the ALJ or uphold or reverse the ALJ’s decision.

If you would like assistance with your administrative hearing or the appeal, contact the Law Office of Phillip E. Chalker at (443) 961-7345 or phillip@attorneychalker.com.