Marijuana

Published on: October 19, 2018

Can Medical Marijuana Patients Purchase Guns?

For the last few years Maryland residents have been required to obtain a license to legally purchase a handgun. The handgun qualification license or HQL has been in effect since October of 2013 and requires purchasers to complete safety training and pass a full background check with the state police that includes fingerprinting. Those wishing to purchase rifles and shotguns are not subject to these requirements, and must only fill out a federally issued form and pass an instant background check. If you come with proper identification and pass the ATF’s check you can easily buy a semi-automatic shotgun or rifle in under an hour. But handguns are different, and despite anticipated backlash from the gun lobby the HQL requirement has largely remained out of the news since 2013.

Fast forward 5 years and the HQL law is back in the news after medical marijuana users are discovering they may have given up their right to purchase a handgun simply for registering as patients. In addition to convicted felons and those found guilty of other crimes such as second degree assault, the Maryland public safety code prohibits drug addicts and habitual drunkards from possessing any type of firearm. The language of the statute is key, as Maryland law does not broadly prohibit those who use drugs or drink alcohol from possessing or purchasing guns. Federal law on the other hand has prohibited the sale of guns to users of controlled substances since the Gun Control Act of 1968 and the Brady act of 1993, and it is this decades old legislation that is now the reason more than 20 medical marijuana patients have been denied the right to purchase a handgun. Marijuana is still defined as a controlled substance under federal law, and while the feds have yet to show signs they would enforce these acts as they relate to medical marijuana in Maryland, the state police apparently do not wish to assist citizens in breaking the dated law.

Patients who register with the Maryland Medical Cannabis Commission are protected by federal HIPAA regulations, and their identities cannot be disclosed anyone, especially to law enforcement. But within the last year the state police have added a question in their HQL application that asks the applicant whether they are a registered user of medical marijuana. The police may not have access to the database, but lying on the application is a federal offense that carries up to 10 years in prison, making it unreasonable to risk criminal prosecution simply to purchase a handgun. Therefore by simply asking the question the state police are effectively banning medical marijuana patients from lawfully purchasing a handgun, and are covering their butts from the feds in the process. The questionnaire also adds a layer of protection to state gun dealers, who risk federal prosecution for unlawfully selling handguns in violation of the Brady Act. Violating the act is not a strict liability crime, meaning the shop would have to know or have reason to believe they are selling to a prohibited person. The impression we get from the HQL is that the state is not interested in subjecting its citizens to federal prosecution, but at the same time does not want to be complicit in violating federal law.

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Published on: September 2, 2018

Medical Marijuana Rolling Along

By Benjamin Herbst

Medical marijuana first became available in Maryland just 8 months ago, and after a few hiccups in the opening weeks the program is now becoming a well-oiled machine. There are 65 dispensaries currently throughout the state, and almost all are enjoying a steady stream of business. These dispensaries reported gross sales of $1.8 million in December and now that number is approaching $10 million. In addition, there are now seven times more medical marijuana purchases per month than when the program first began. Since the beginning of summer at the end of May until now the number of patients has risen 30 percent to roughly 36,000. This number could increase another 3 to 4 times still, as experts have estimated 2 percent of the state’s total population will eventually obtain certification. And finally, while we’re talking numbers, there are now 985 medical providers who can recommend cannabis, which is up from 709 at the end of May. New patients are coming forward each day, and medical doctors, nurse practitioners and psychologists are jumping on board as well.

Considering it took almost 5 years from when medical marijuana first became law until it became operational, the current progress has to be considered a success. But that doesn’t mean the system in Maryland is without flaws. For starters medical cannabis is not covered by any health insurance plans in the state as it’s still not approved by the FDA as medical necessity. Patients can spend anywhere from $100 to $1,500 a month for their supply of cannabis, and while state dispensaries offer high quality safe products, they don’t come cheap. Tight regulations, limits on the number of growers and distributors and long expensive delays are just some of the reasons for high cannabis prices in Maryland, and for some it can be cost prohibitive.

Not everyone can afford to spend hundreds of dollars per month cash to obtain the medicine they need to simply feel normal. The sad truth remains that it is still cheaper to medicate with prescription narcotics that are both chemically habit forming and potentially deadly. Some resort to growing marijuana plants in their homes or on their property to cut costs, but this is a risky strategy as personal marijuana cultivation is still a felony in Maryland. Lawmakers recently tried to pass a bill legalizing the possession of up to an ounce of pot and allowing residents to grow up in six plants in their homes, but this bill failed to make it to the governor’s desk. Growing even one marijuana plant is a felony the CDS manufacturing law and is punishable by up to 5 years in prison. Law enforcement still actively investigates any tip involving marijuana manufacturing and spends taxpayer dollars performing expensive aerial surveillance missions in search of outdoor home growers. Tips and surveillance can lead to search warrant, which then can lead to seizures and arrest. Things only get more serious if an otherwise lawful firearm is found on the searched premises, as this can lead to a charge for possession of a firearm in drug trafficking crime, which carries a minimum mandatory prison sentence upon conviction.

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Published on: July 15, 2018

State Investigating Grow House For Pesticide Use

By Benjamin Herbst

The last few months have been a relatively quiet time regarding medical marijuana news stories in Maryland. The program seems to be running smoothly and there have been no major incidents at state licensed grow houses and dispensaries such as break-ins or missing product. The baseless concerns about the possibility of kids and vagabonds hanging out in dispensary parking lots has obviously not come to fruition, and general crime involving medical marijuana has been pretty much nonexistent. Wait times at dispensaries has been manageable and the supply chain of flower is steady. There are still some gripes about the inexplicable absence of edibles and other forms of the medicine, but overall the program’s first year is going well.

No news is good news for the (still) controversial medical marijuana program, so when you see the words medical marijuana in the Sun or the Post these days it’s likely to report a problem. There appears to be a pretty big problem for an Anne Arundel County grower that was one of the first to open for business in Maryland. Three employees of this particular grow house apparently sent sworn statements to the General Assembly, which accuse the grower of using illegal pesticides on their product in order to eliminate mold and pests. All three of the former employees were at the company last summer when they were allegedly told to spray at least one infested crop with pesticides that often were given code names by supervisors. This practice apparently continued for months until the employees took their concerns to the in-house compliance officer and subsequently left their jobs. Two of the three left back in April, while the third stayed on until June, all the while allegedly spraying the code named pesticides whenever told.

The company has categorically denied the use of pesticides, which were all illegal when the three employees said they were used. A recent tweak in the law now allows the temporary use of minimum risk pesticides, but this tweak is irrelevant to the claims of foul play by the employees. At least one dispensary from Queen Anne’s County is not buying the grow house’s denial, as their patients reportedly complained of burning eyes and throats after using their products. Owners of this dispensary have already stopped purchasing from the Anne Arundel grower and others may join in the future. The scandalous nature of this story is enhanced by the fact that one of the co-owners of the grow house is a prominent supporter of the governor, and even served on his transition team. This owner was allegedly informed of the pesticide use at two meetings back in April, but he has not commented on the allegations.

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Published on: May 23, 2018

Maryland Reports Largest Prison Population Decline

By Benjamin Herbst

The national prison population continues to decline, and for the first time in almost fifteen years the total number of inmates dipped below 1.5 million. Last year Maryland lead the entire nation with a dramatic 10 percent reduction in prisoners, which brought the state inmate population down almost 2 thousand to a total of around 18 thousand. While the simplest explanation for the decline is the passage of the Justice Reinvestment Act, a closer look reveals a variety of factors at play.

The Justice Reinvestment Act or JRA was a groundbreaking and massive piece of legislation that sought to reduce money and manpower dedicated to jailing defendants, and to divert these resources to treating and rehabilitating convicted defendants. The JRA eliminated harsh mandatory sentences for repeat drug offenders convicted of non-violent offenses such as possession with intent to distribute narcotics. The maximum penalty for possession of CDS not marijuana was also lowered to one year, which eliminated the possibility of a prison sentence for drug possession. While most state correctional inmates are serving the original sentence handed down by the judge, a large portion are doing time for violating their probation. Lawmakers became aware that the sentences handed down for probation violations were getting out of control, and used the JRA to do something about it.

Each day dozens of defendants plea out to large suspended sentences in order to be released from jail, and many end up back in court on a violation. Some of these violations are extremely minor, and could be avoided by more patient probation officers. In the past defendants faced years in prison for extremely minor violations, but since the JRA went into effect there are now limits on the sentences handed down for these so called technical violations. The limits are not binding on the judge, but are certainly persuasive when it comes to sentencing a probationer for a positive drug test, failing to complete treatment or not paying restitution.

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Published on: March 25, 2018

State Senate Passes Marijuana Bill

By Benjamin Herbst

Legalizing marijuana through an amendment to the state constitution remains a possibility, but independent of this of this massive policy shift lawmakers are still working diligently to modernize marijuana laws. There have been over twenty marijuana related bills introduced by Maryland lawmakers this year, but few will end up as law, and even fewer will have a impact in courtrooms across the state. One marijuana bill that could potentially have an impact on the court system recently passed in the Senate by a wide margin, and is now headed to the House for a vote the first week of April. If this bill passes and is later signed into law the threshold for criminal possession of marijuana would increase from 10 grams to 1 ounce, meaning it would no longer be a crime to possess between 10 and 28 grams of pot.

If the marijuana threshold bill becomes law the amount of civil citations would likely double, but these cases have much less of a burden on the court system than criminal cases. Defendants in civil marijuana cases typically prepay the fine and forgo showing up to court, which is permitted for anyone age 21 and over. When fines are prepaid witnesses (generally police officers) do not need to be summonsed and judges and courtroom clerks can be utilized for other cases. Even if a defendant requests a trial, most jurisdictions treat these cases like minor traffic violations, and do not assign assistant state’s attorneys to prosecute them. Although most defendants over the age of 21 prepay the pot citation fines, we advise these defendants to show up to court and contest the allegations. Paying a fine for a civil marijuana citation will result in a conviction, albeit for a civil violation that is not subject for public inspection and does not appear on the judiciary website (casesearch), but it’s still a conviction for an offense that is illegal under federal law. Requesting a court appearance could result in a more favorable outcome than prepaying the fine such as a probation before judgment, a STET, a nolle prosequi or a not guilty finding. Each of these outcomes would allow the defendant to resolve the case without a conviction and eventually apply for an expungement. If you have the time to show up to court or the money to hire an attorney it would definitely be in your best interest.

The marijuana threshold bill passed 36-11 in the Senate, a wide margin by any calculation. Naturally for this many Senators to vote to increase the criminal possession threshold there would have to be some concessions in the other direction, as most politicians are weary about being too lenient on an issue that is perceived as a criminal in nature. The concession for this bill is an added provision making it illegal to consume marijuana in the passenger compartment of a motor vehicle that is driving, standing or parked on a public road. This provision, listed in section 21-903 of the transportation article would apply to drivers and passengers. In other words a cop could pull a car over and cite all its occupants for illegal marijuana use. This offense is not a major or jailable traffic crime, but it does carry up to a $530 fine and one point (3 points if there is an accident). It is virtually the same as the provision against consuming alcohol inside a vehicle, but the alcohol consumption statute only applies to drivers, and not passengers. We expect that this measure will pass in the House virtually unchanged, and eventually end up as law in October, but there are never guarantees when it comes to Maryland and marijuana laws. The Blog will continue to follow this bill and others related to state criminal and traffic laws. If you would like to speak to a lawyer about a criminal or traffic citation, or any other offense contact Benjamin Herbst at 410-207-2598 for a free consultation. Benjamin specializes in DUI, drug possession and alcohol consumption/ open container defense, and is available anytime to discuss your case.

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Published on: February 23, 2018

Lawmakers Debate Recreational Marijuana Bill

By Benjamin Herbst

This week in Annapolis lawmakers debated bill that would pave the way for the legal recreational use of marijuana in Maryland for any person over the age of 21. Senate bill 1039 proposes an amendment to the state constitution, which should signal just how serious lawmakers are about legalization becoming state policy. Along with the ability to consume marijuana, the law would allow for the possession of up to 1 ounce of flower and 5 grams of concentrate. State residents would also be permitted to grow up to 6 marijuana plants in their home or other private property, as long at the cultivation could not be viewed by the public without the use of visual aids. A small caveat to legally growing under the proposed law is that no private citizen would be permitted to have more than 3 mature and flowering plants at one time, thus the process of cultivation would have to be spread over time. The limits on the amount of pot that a person may legally possess do not apply to that which is grown in the home. In other words a citizen could have three flowering plants that yield over a pound of pot, and it would be legal to possess all of it inside private propery. Other provisions of the senate bill include the ability to share up 5 grams of cannabis with another person who is over the age of 21. Sharing means not receiving anything of value in exchange for the pot, so no bartering of t-shirts, concert tickets etc. would be allowed.

If and when the bill eventually becomes law (whether it be this year or some time in the future) there will be limits on what legalizing marijuana actually means, and also some protections for those who choose to use marijuana. Legalization does not mean employers would have to make accommodations for employers who want to use cannabis at the workplace, and these employers could decide to ban the possession of cannabis at work. Employers would be protected if they decided to fire an employee for violating a workplace drug policy that barred marijuana use. Laws that currently apply to tobacco smoking in public places would also apply to cannabis under the new proposed legislation. A business that permits tobacco smoking on its premises could also allow pot smoking as long as there is no access by individuals under the age of 21 and the business is compliant with local ordinances. Another important provision is one that bars a landlord from prohibiting tenants from consuming cannabis in forms other than smoking. Most residential leases have provisions barring the use of drugs on the building property, but marijuana would not be considered a drug under the proposed law.

In addition to establishing basic regulations for recreational marijuana, the bill would grant authority to the General Assembly and the State Comptroller to establish licensing and taxing regulations for the marijuana commerce. Lawmakers wrote into the bill that their goals in crafting cannabis policy are to remove the production and distribution of cannabis from the illegal market, and to eradicate profits generated for criminal enterprises through the sale of marijuana. In addition lawmakers will emphasize the goal of keeping marijuana out of the hands of individuals under the age of 21.

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Published on: January 12, 2018

Medical Marijuana Incompatible With Federal Gun Laws

By Benjamin Herbst

Maryland already has some of the toughest gun laws in the country, and now the medical marijuana program may contribute to even tighter restrictions on gun ownership in the state. The Attorney General recently went on record stating his office would no longer sit back and let the states implement marijuana policy without the threat of federal government interference. This doesn’t necessarily mean (we hope) that the DEA is plotting to raid recreational and medical marijuana grow houses and dispensaries across the country, but there is certainly some cause for concern. Here in Maryland the medical marijuana program just became functional after years of work by thousands of people who put in time and millions of dollars for the little green plant to become available with a doctor’s approval. The program is not going anywhere, so patients and investors probably need not fear the worst. But there may have to be some sort of effort to keep the feds at bay, and a firearms crackdown could serve this purpose.

In order to appease the justice department, the Maryland State Police may become more involved in policing long standing federal policy that users of illegal drugs are prohibited from purchasing or receiving guns. The gun control act under 18 U.S.C 921 lays out certain prohibitions for receiving a firearm, and a violation of this federal statute could be punishable by up to 10 years in prison and a whopping $250,000 fine. Each person who purchases a firearm in Maryland is required to fill out a federal firearms transaction record, which is monitored by the ATF. One of the questions on the form asks whether the gun purchaser is an unlawful user of marijuana, narcotics, or any other controlled substances, and then in bold type states that “the use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside”. A person who answers yes to this question is unequivocally barred from purchasing a gun, and a Maryland medical marijuana card will do nothing to prevent the feds from filing charges.

It is difficult to enforce the provision of the gun control act that bars illegal drug users from purchasing handguns for obvious reasons. Gun shops are not administering polygraph tests to prospective buyers, and the ATF cannot show up at a recent gun purchaser’s door to administer a drug test. But in Maryland all medical marijuana patients are required to sign a release allowing the state health department to disclose the identity of cardholders to the state police. This would give the state police all the ammunition it needs to assist the feds in enforcing the federal gun control act. The worry is that state and local law enforcement may start arresting medical marijuana patients who purchase guns in order to set an example, and to appease the justice department now that its leader has taken a public stance against weed. For the near future Maryland residents will have to choose between purchasing or receiving a firearm and enrolling in the medical marijuana program. Even card holders who have yet to make their first purchase of medical pot should worry when buying a firearm, as the mere fact of their enrollment in the program could lead to major criminal liability. After all the progress we have made in last decade with respect to marijuana policy, the AG’s recent statements are a major step in the wrong direction. The only real solution is for Congress to get together and scrap federal laws making marijuana a controlled substance. We are confident this will happen eventually, but waiting on lawmakers to right a wrong is a frustrating proposition to say the least.

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Published on: November 28, 2017

Medical Marijuana Dispensaries Coming Soon

By Benjamin Herbst

Almost five years ago Maryland residents began hearing talk that a state sponsored medical marijuana program was on the horizon. Despite numerous states already having established successful medical cannabis programs, our elected officials decided to pave their own way and craft a program that was unique to Maryland. These lawmakers eventually passed a severely underwhelming medical cannabis bill that only allowed academic institutions to administer the program. To the surprise of approximately nobody there weren’t any takers of this ridiculous platform requiring universities to dedicate time and money to study something that they already knew the answer (marijuana helps people). After a wasted year lawmakers once again convened and passed laws establishing an actual functioning program that would be run by the private sector and heavily policed by the state. A commission was formed to craft rules and regulations, and eventually to set up procedure for grower and dispensary applications.

On paper everything seemed in place, but actually building the program from the ground up proved more difficult for all parties involved (despite the abundance of information and resources from other states). The commission was underfunded and appointed members lacked expertise and experience, which led to delays and disgruntled applicants. Fast-forward to today and all the medical marijuana investors are still waiting to make their first buck from the program, and most will never recoup their losses. Now though, the day is finally imminent when the first legal marijuana transaction will take place.

The founder of a dispensary in Frederick was recently on record stating he believes his shop will begin selling marijuana by the first week in December, which is hard to believe for those that have been following the progress (or lack thereof) of the program. On the other hand, the day has to come eventually so why not be optimistic about at early holiday season? While the dispensary founder was cautious to put a guarantee on this statement he did add that his staff of ten is ready to serve the patients who are undoubtedly growing impatient. Owners of another dispensary in Salisbury are also confident of a 2017 opening, though this Wicomico County shop is not expecting a grand opening next week.

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Published on: October 25, 2017

Medical Marijuana Not Cleared For Takeoff Yet

By Benjamin Herbst

Medical marijuana grow facilities across Maryland have been up and running for weeks, yet as of now these growers are still not able to sell their product to the distributors that will ultimately provide to patients. One Anne Arundel County grower has already harvested a batch of pot for testing purposes and is primed to ramp up production when the time comes, but when is the time actually coming? This is a question four years in the making, and each time an answer appears on the horizon new hurdles must be cleared. While it is unlikely that the entire program is in jeopardy, the coming weeks will certainly bring a few sleepless nights for the workers who put in hundreds of hours and the investors who put up millions in order to make medical marijuana a reality here in Maryland.

There are at least three current issues threatening smooth operation of the state’s medical cannabis program, with two being on the state and local level and one on the federal level. The first issue is where to put all the dispensaries. The locations of the grow facilities have been set for months, and are scattered around the state in discrete industrial locations. These facilities are not open to the public, and will do their best to be out of sight and out of mind. The dispensaries are a different story, as they must be in areas that are accessible for the registered patients to pick up their medicine. The problem is that many residents in areas of proposed dispensaries are speaking out as to their disapproval of having medical pot shops in their neighborhoods. While these complaints lack a any sort of factual and rational basis (for example some citizens are concerned that dispensaries will bring crime and loitering riff raff) they are causing a stir that is being heard by state and local politicians. The program cannot function properly without numerous dispensaries to handle the high demand from patients. A limited amount of dispensaries will severely disrupt the flow of the product from the grower to the patient, and will render the program relatively useless. The growers need the dispensaries as much as the dispensaries need the growers, so the hope is that all the zoning issues are sorted out quickly.

Another state based issue threatening the program is a recent decision by a Baltimore City Circuit Court judge that the case involving the disgruntled growers that were denied licenses will proceed to trial. The state had filed a motion to dismiss, but not surprisingly the judge ruled that it was a case left for the fact finder (judge or jury) to decide. A trial date has not been set, but the medical cannabis program will be allowed to operate while the case is pending.

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Published on: July 25, 2017

New Issues As Medical Marijuana Preparation Continues

By Benjamin Herbst

After enduring numerous delays and costly blunders the state medical marijuana program is now in the final stages of preparation. Over the last few months most of the news headlines concerning medical pot were focused on the potential growers. These grow companies raised millions of dollars apiece and their investors included prominent and powerful state residents. Needless to say there was a lot at stake when the commission hired a Towson University group to choose the best fifteen, and it was hardly a surprise when those that didn’t make the cut took their fight to the media and the courts. Despite pending litigation by a couple of disgruntled grow companies the other fifteen pre-approved growers are moving forward with their plans to plant their first seeds. Many of these multimillion-dollar companies are still awaiting final licenses, but there do not appear to be any imminent hurdles on the growing side of the Maryland medical cannabis operation. However, there are some new issues popping up on the dispensary side.

There has not been a great deal of talk about the hundred plus companies that have been preliminarily approved to sell medical marijuana to patients in need. This is partly due to the simple fact of timing; there was no point in dwelling on the details of dispensing until it was certain there would be a product to dispense. But now that the growers are in place the attention has shifted to the shops that will soon open for business throughout the state, and not all of the attention is positive. Residents in the area of a potential Baltimore County dispensary expressed concern over the location of a one future shop, and politicians responded by imposing new restrictions that could jeopardize the location of this business. A similar pattern of events has taken place in Anne Arundel County, Queen Anne’s County and Baltimore City. Many of the residents who have complained about the location of dispensaries support the medical marijuana program as a whole, but they just don’t want the stores in their neighborhood. The problem is that dispensaries have to go somewhere, and you can’t just make patients drive out to the boonies or into high crime areas to buy their medication.

As with most complaints about medical or recreational marijuana the latest concerns over the location of dispensaries are naïve and ignorant. The detractors assume that pot shops will bring in riff raff and crime to their neighborhoods, though the only support to this argument is the baseless stigma surrounding marijuana. Anyone who has traveled to areas around the country where pot is legal can attest to the fact that the dispensaries are highly sophisticated and secure operations, and their clientele just want to get in, buy their product and leave. You rarely, if ever, see anyone loitering around a dispensary, and the storefronts are clean and professional. Contrast this with local liquor stores that actually do bring in the riff raff, and are prime targets for robberies inside and outside of the store. Once the shops are open for business the stigma should start to erode, though realistically it will take a generation before marijuana is accepted not only as an effective medical product, but also as a safer recreational alternative to alcohol. As for dispensary locations, we do not feel this will ultimately cause additional delays to the program though the Blog will post an article in the future if this sentiment changes.

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