PBJ - Probation before Judgment

Clients often have difficulty understanding Probation before Judgment or PBJ.

The historical purpose for seeking PBJ is not to have a criminal record, a public conviction or record, and especially for first offenders. However, over a period of years the purpose has been reduced by a number of modern events including the widespread use of the internet, the making of certain data bases "public" and court rules relating to prohibiting the expungement of records for alcohol driving offenses such as those included in Transportation Article 21-902 **. In these ways the achievement of anonymity has been almost lost. A perfect example of how these events have reduced the benefit of receiving PBJ is the permanent listing on the Maryland Judiciary Website of defendants who received PBJ alcohol driving offenses.

What is PBJ?

To me, PBJ is a legal fiction. After finding the defendant guilty, the Court considers a number of factors to determine if the defendant should be afforded the special privilege of Probation before Judgment. If the Court determines that the defendant has met the factors (criteria), then the Court stays the conviction in order for the defendant not to have a criminal record. However, there will be public records showing that the defendant received PBJ in Alcohol Driving Offense convictions. Employers doing background checks of applicants may go to the Maryland Judiciary Website and seek to determine if the applicant has a criminal record. Potential employers will not need to obtain an authorization to review the individual's civil and criminal records. The judiciary website shows a summary of what occurred. All the employer needs to do is to place the name of the applicant and dates of interest into the search tool to secure information about the applicant's civil or criminal records. However, with criminal records in some instances, PBJ may not appear because the records have been expunged. Remember, however, that alcohol driving records cannot be expunged. For persons seeking high security positions their arrest record will be held within the records of the Maryland State Police and the Federal Bureau of Investigation and employers often obtain authorizations to check the records with these two agencies. Persons seeking police or other law enforcement employment will have their PBJ records revealed for alcohol driving offenses.

When is PBJ sought?

Frequently if a client has been convicted of a crime, the attorney will seek PBJ. Also when a plea of guilty is made, as part of the plea agreement the attorney will also seek specific terms such as that the prosecutor will not oppose PBJ, the length of incarceration (for first offenders no jail, for second or subsequent offenders weekends of incarceration), and other terms such as the amount of restitution.

Alcohol Rehabilitation Programs

A defendant, even if it is his or her first offense, and almost mandatory for a defendant who has a subsequent alcohol driving offense, should undergo an alcohol assessment program and participate in the recommended treatment that is 12 hours for social drinkers and 26 one-hour sessions for problem drinkers. I advise clients, even when it appears there are adequate reasons for our prevailing in court, that there is added insurance to the court outcome attained by attending the alcohol evaluation and following the recommended treatment. Also, the likelihood is that those defendants who genuinely and actively participate in a program will be less likely to repeat the offense.

At sentencing what are the Courts looking for? What are the criteria?

First and foremost, the judge wants to know or have the reasonable belief that the defendant is less likely to have a subsequent offense, thereby exposing other drivers to serious bodily harm, death, or serious disability as a result of a subsequent offender's drunk driving. Here are the criteria: That the Court makes a factual finding that it is in "the best interests of the defendant and the public welfare willbe served"; and

That the defendant has undergone an alcohol evaluation and has participated in the recommended treatment. Having undergone the evaluation before the trial date and attended the program will demonstrate to the Court that the defendant has taken responsibility for his or her actions. If the Court has been provided with the evaluation and description of the progress of treatment of the rehabilitation program and if the program is an approved program, the Court has the discretion not to require the defendant to undergo another evaluation; and

That the defendant consents to the PBJ and pays all fines, attends a follow- up rehabilitation program, performs community service, abstains from alcohol for a period of time, reports to the local drinking monitor program ,and other conditions as the Court considers important; and

That the defendant agrees to waive his or her right to appeal.

This article is an introduction to PBJ and should not be considered to have dealt with many situations. The focus is on alcohol driving offenses. The inability to expunge alcohol driving offenses has a different result for someone who was convicted of theft. When PBJ is granted in a theft conviction and upon three years after sentencing, the records can be expunged and will not thereafter appear on the Maryland Judiciary Website.

Fred Antenberg has represented defendants for over 30 years. Call Fred at 410-730-4404 for a free initial consultation.

**Transportation Article Section 21-902: Driving while under the influence of alcohol, while under the influence of alcohol per se, while impaired by alcohol, or while impaired by a drug, a combination of drugs, a combination of one or more drugs and alcohol, or while impaired by a controlled dangerous substance.