John S. Smith
Attorney at Law

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Criminal Defense Law Information Center

It is the law that you are innocent until the State proves that you are guilty. The State has the burden of proving that you are guilty beyond a reasonable doubt.

Find answers to your questions about Maryland criminal law below. Or you can return to the Criminal Defense Page.

Homicide (murder)

What does the State have to prove to convict me of homicide (murder)?

In order to convict you of murder, the State has to prove that you killed another person. Murder can be either first degree or second degree.

First Degree Murder

There are two types of first degree murder.

  • First Degree Intentional Murder — the state has to prove that you intentionally killed another person and that you planned ahead of time to kill that person. If you are raising self-defense or defense of another, the state has to prove that you did NOT kill in self defense or defense of another.
  • First Degree Felony Murder — the state has to prove that you killed another person while you were committing a certain type of felony (listed below). The state does NOT have to prove that the killing was intentional. The felonies are as follows:
    • Mayhem or Maiming
    • Rape
    • Sex offense
    • Burglary
    • Arson
    • Kidnapping
    • Escape
    • Robbery
    • Carjacking
    • Explosives

Second Degree Murder

There are two types of second degree murder:

  1. Second Degree Intentional Murder – the state has to prove that you intentionally killed another person or intended to harm a person in a way that would likely cause death (and it did cause death). This is the murder that you would be convicted of if the state cannot prove that you did not plan to kill ahead of time (first degree murder). If you are raising self-defense or defense of another, the state has to prove that you did NOT kill in self defense or defense of another.
  2. Second Degree Depraved Heart Murder – the state has to prove that you did something with an unreasonable risk to human life that ended up killing another person. You may have killed the person unintentionally. Some examples would be killing someone while driving drunk or shooting into a crowded bus. If what you have been charged with is less serious, it might be criminal negligence voluntary manslaughter instead.

Attempted Homicide (Murder)

What does the State have to prove to convict me of attempted homicide (murder)?

The state would have to prove that you took a substantial step toward committing murder. This is usually when you tried to kill someone and the person did not die. For example, the person lived after you shot them in the chest or head.

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Manslaughter

What does the State have to prove to convict me of manslaughter?

There are two types of manslaughter - voluntary and involuntary.

Voluntary Manslaughter

There are two types of voluntary manslaughter

  1. Voluntary Heat of Passion Manslaughter — the state has to prove that you intentionally killed someone and it was NOT done in the heat of passion caused by one of the following: (1) battery or attempted battery or (2) mutual combat (both parties fighting to death). Adultery is NOT a legal reason.
  2. Imperfect Self Defense Voluntary Manslaughter — the state has to prove that you intentionally killed someone and the killing was NOT done with an honest but unreasonable belief that you or another was in deadly danger or that you needed to use deadly force.
Involuntary Manslaughter

There are two types of involuntary manslaughter

  1. Criminal Negligence Involuntary Manslaughter — the state has to prove that you were doing something that was very negligent and you unintentionally killed someone. This what you might be convicted of if what you did to cause the death is not bad enough for you to be convicted of Second Degree Depraved Heart Murder.
  2. Misdemeanor Involuntary Manslaughter — the state has to prove that you were committing a crime while you killed another person; the crime does not have be a felony and this killing is unintentional.
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DUI/DWI drunk driving

Should I refuse to take the breathalyzer test?

No. If you refuse, the penalties are worse. There are ways that your attorney can challenge the tests or the results at a trial. For example, the test has to be administered by a licensed operater who is not the arresting officer. If not, the results are not admissible. Also, if there is a malfunction or repair of the breath test instrument, the results of the test are presumed invalid.

What does the State have to prove to convict me of drunk driving?

The State has to prove:

  1. That you were driving the vehicle. If you were parked and asleep in the backseat in your driveway, you were not driving. If you were on the side of the road, with the car running and you were awake in the drivers seat, you were probably driving.
  2. That you were under the influence of alcohol. Your alchohol concentration must be 0.08 or more.
How much can I drink and still drive in Maryland?

It depends on whether you are male or female and how much you weigh. One drink equals roughly 1 shot, 1 12oz. beer, or 1 5oz. glass wine.

Men's Blood Alcohol Level Estimation Chart
Drinks 100 120 140 160 180 200 220 240  
0 .00 .00 .00 .00 .00 .00 .00 .00 Only Safe Driving Limit
1 .04 .03 .03 .02 .02 .02 .02 .02 Driving Skills Impared
2 .08 .06 .05 .05 .04 .04 .03 .03
3 .11 .09 .08 .07 .06 .06 .05 .05
4 .15 .12 .11 .09 .08 .08 .07 .06
5 .19 .16 .13 .12 .11 .09 .09 .08
6 .23 .19 .16 .14 .13 .11 .10 .09 Legally Intoxicated
7 .26 .22 .19 .16 .15 .13 .12 .11
8 .30 .25 .21 .19 .17 .15 .14 .13
9 .34 .28 .24 .21 .19 .17 .15 .14
10 .38 .31 .27 .23 .21 .19 .17 .16 Possible Death
Women's Blood Alcohol Level Estimation Chart
Drinks 100 120 140 160 180 200 220 240  
0 .00 .00 .00 .00 .00 .00 .00 .00 Only Safe Driving Limit
1 .05 .04 .03 .03 .03 .02 .02 .02 Driving Skills Impared
2 .09 .08 .07 .06 .05 .05 .04 .04
3 .14 .11 .10 .09 .08 .07 .06 .06
4 .18 .15 .13 .11 .10 .09 .08 .08
5 .23 .19 .16 .14 .13 .11 .10 .09
6 .27 .23 .19 .17 .15 .14 .12 .11 Legally Intoxicated
7 .32 .27 .23 .20 .18 .16 .14 .13
8 .36 .30 .26 .23 .20 .18 .17 .15
9 .41 .34 .29 .26 .23 .20 .19 .17
10 .45 .38 .32 .28 .25 .23 .21 .19 Possible Death


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Assault & Battery

What does the State have to prove to convict me of assault?

There are three types of assault - intent to frighten, attempted battery and battery.

Assault — Intent to Frighten

Intent to frighten assault is intentionally frightening another person with the threat of immediate offensive physical contact or physical harm. The offensive physical contact may only be unwanted touching. In order to convict the defendant of assault, the State must prove:

  1. that you did something intending to make another person afraid that you would touch or hurt them;
  2. that you could actually touch or hurth the person; and
  3. that the other person reasonably feared that you would immediately touch or hurt them; and
  4. if it applies, that your actions were not legally justified (i.e., it was not self defense)
Assault — Attempted Battery

Attempted battery assault is an attempt to cause offensive physical contact or physical harm. The offensive physical contact may only be unwanted touching. In order to convict you of assault, the State must prove:

  1. that you actually tried to cause immediate touching or harm to another;
  2. that you intended to touch or harm the person; and
  3. if it applies, that the other person did not consent and what you did was not legally justified
Assault

Assault is causing offensive physical contact to another person. The offensive physical contact may only be unwanted touching. In order to convict you of assault, the State must prove:

  1. that you touched or harmed the victim;
  2. that the contact was not accidental; and
  3. if it applies, that the other person did not consent and what you did was not legally justified
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Arson

What does the State have to prove to convict me of arson?

There are four types of arson.

First Degree Arson

In order to be convicted of first degree arson, the state has to prove that you intentionally burned a dwelling or any structure with a person in it. You can be charged with this even if you only burned a little bit of the dwelling.

Second Degree Arson

In order to be convicted of second degree arson, the state has to prove that you intentionally burned a structure that was not a dwelling. You can be charged with this even if you only burned a little bit of the structure. This would include burning a car or a boat.

Malicious Burning

In order to be convicted of malicious burning, the state has to prove that you intentionally burned the personal property of another. If the property is worth:

Burning with Intent to Defraud

In order to be convicted of Malicious Burning, the state has to prove that you intentionally burned any property which is insured at time against fire loss with the specific intent to defraud.

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Burglary (Breaking and Entering)

What does the State have to prove to convict me of burglary (breaking and entering)?

There are four types of burglary — first degree, second degree, third degree and fourth degree.

For all types of burglary, "breaking" means that you made an opening, such as breaking or opening a window or pushing open a door. It also includes getting into the house by fraud, trick, or force. You "entered" the house if any part of your body was inside the house. A "dwelling" is a structure where someone regularly sleeps.

First Degree Burglary (Breaking and Entering)

In order to convict you of first degree burglary, the State must prove:

  1. that you broke into someone else's dwelling (house);
  2. that you entered into that dwelling (house); and
  3. that you broke and entered intending to commit a theft or crime of violence inside.
Second Degree Burglary (Breaking and Entering)

In second degree burglary, the building does not have to be a dwelling (house). It can be any building.

Third Degree Burglary (Breaking and Entering)

In order to convict you of third degree burglary, the State must prove that you broke and entered into a house and you intended to commit any crime inside the house.

Fourth Degree Burglary (Breaking and Entering)

There are three types of fourth degree burglary.

In the first type of fourth degree burglary, the State has to prove that you broke and entered into a house and that you knew you were not supposed to be there. The State does not have to prove that you intended to commit a crime in the house.

In the second type of fourth degree burglary, the State has to prove that you were in or on someone else's building (or any yard or garden or other area belonging to the dwelling or building) with the intent to commit theft.

In the third type of fourth degree burglary, the State has to prove that you had burglar's tools with the intent to use the tools to breaking and entry of someone else's building or car.

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Theft

What does the State have to prove to convict me of theft?

There are four types of theft in Maryland.

Theft – Taking and Carrying Away

In order to convict you of taking and carrying away theft, the State must prove:

  1. that you took and carried away someone else's property;
  2. that you did not have permission; and
  3. that you wanted to keep the property away from the owner
  4. and, if you are charged with felony theft, that the value of the property was at least $500.

Property is anything of value.

Theft – Unauthorized Control

In order to convict you of unauthorized control theft, the State must prove:

  1. that you intentionally took control of someone else's property
  2. that you did not have permission; and
  3. that you wanted to keep the property away from the owner
  4. and, if you are charged with felony theft, that the value of the property was at least $500.
Theft by Deception

In order to convict you of theft by deception, the State must prove:

  1. that you intentionally took control of someone else's property;
  2. that you used deception (lied) to get the property; and
  3. that you wanted to keep the property away from the owner
  4. and, if you are charged with felony theft, that the value of the property was at least $500.
Theft – Possession of Stolen Property

In order to convict you of possession of stolen property theft , the State must prove:

  1. that you had stolen property;
  2. that you knew that the property was stolen or believed that it probably was stolen; and
  3. that you wanted to keep the property away from the owner
  4. and, if you are charged with felony theft, that the value of the property was at least $500.
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Robbery

What does the State have to prove to convict me of robbery?

There are the same four types of robbery that there are theft. The State has to prove that you committed theft by force or threat of force. For example, by pointing a gun at someone to take her purse.

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Disclaimer: This site provides general legal information. It is not legal advice. You must contact an attorney for legal advice for your specific situation.