Probation Before Judgment—Don’t Believe What You May Have Been Told!!

When a defendant goes to court, is defended, and the Court determines the defendant is “guilty”, the issue then becomes whether or not the defendant will have a criminal record.

Generally, a conviction results in a criminal record. However, in Maryland, judges have the discretion to strike the guilty verdict/judgment and provide “Probation Before Judgment”. Often, judges and defense counsel inform defendants that this will avoid the defendants having a criminal record. However, in some instances, for all practical purposes, this may not be true.

I have over 30 years of successful experiences in obtaining PBJ for my clients. Call me to discuss your case -- 410-730-4404.

Probation Before Judgment (“PBJ”) was created to prevent “first offenders” from having a criminal record. Case law considers Probation Before Judgment “not a conviction”. Maryland’s statutes also refer to Probation Before Judgment as a stay of judgment or that the proceedings were deferred.

When a defendant is found guilty of a crime, a judge may stay the entering of the (guilty) judgment and defer the proceedings wherein the defendant is placed on probation subject to conditions IF:

  1. The judge determines both the best interests of the defendant and the public welfare would be served;

  2. The defendant gives consent to PBJ after being determined guilty; and

  3. The defendant also waives the right to appeal the Probation Before Judgment; and

  4. The judge has the right to require the defendant to meet reasonable conditions, including but not limited to: pay a fine, participate in a rehabilitation program such as alcohol counseling, education, anger management, driver improvement program, read a book and write a book report, make restitution, report to a drinking driver monitor and participate in programs that monitor considers helpful to the defendant, perform community service, and to complete all of the conditions placed by the Court within a certain time period.

Defendants are not told that many employers such as the federal government treat Probation Before Judgment as a conviction. Other employers such as federal contractors or employers who are in sensitive types of employment also may treat a PBJ as a conviction. Potential clients need to understand and to become informed of how particularly the federal government considers PBJ. A prospective client, not knowing the ramifications of PBJ to federal employment, may consider pleading guilty to a criminal offense to avoid a trial. Clients may want to avoid testifying even though they cannot be compelled to testify because of their right under the 5th Amendment to the United States Constitution and the Maryland Declaration of Rights. Younger persons may not be able to project the type of employment they will be seeking five or ten years out from their court date.

The consequences with future federal employment or other sensitive employment are far-reaching. This issue should be discussed with the client far in advance of trial. This issue is so important that we advise our clients to discuss this issue with family members including spouses, parents and significant others. There are instances where the Probation Before Judgment occurred more than 10 years before the defendant applied for federal employment and because the defendant had a unique area of expertise, he was employed by the federal government in spite of the PBJ but this is a rare occurrence.

In some cases it may be prudent to have a trial because a “win” eliminates the issue and if there is a “loss”, PBJ may still be an option. Expungement is another way to eliminate a PBJ record from the public court records at the Maryland Judiciary Case Search on the Internet. Recognize, however, that alcohol-related PBJs have greater conditions to achieve an expungement and that there are numerous conditions that must be met for expungement of a Probation Before Judgment.

Fredric Antenberg has over 30 years’ experience representing persons charged with crimes in Howard County and surrounding counties in Central Maryland. Call Fred today at 410-730-4404 for a free initial consultation.