Articles Posted in Maryland Legislature

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bmw-1045050__480-300x225The 2024 legislative session is about halfway through, and Maryland lawmakers are currently debating dozens of criminal and traffic bills that would become law as early as June 1.   One bill gaining a decent amount of attention is a measure introduced in both houses to criminalize exhibition driving throughout the state.  Exhibition driving is defined as operating a vehicle in a crowd or large gathering in a manner that includes abrupt acceleration or deceleration, skidding, squealing or smoking tires, or swerving a vehicle from side to side.  Those familiar with the Blog are well aware that Ocean City has enforced exhibition driving laws in so called “special event zones” in Worcester County for the last two years.  Officials say the law, which carries up to 1 year in jail, has reduced the number of exhibition driving incidents.  While serving a year in jail for exhibition driving is not a realistic punishment save for the most egregious cases, the simple threat of being arrested has proven to be a major deterrent for Ocean City visitors looking to show off their driving skills on Coastal Highway.

Lawmakers are hoping for the same deterrent effect from Senate Bill 442 and its companion House Bill 601.  If enacted the law would add points and criminal penalties for exhibition driving under 16-402 and 21-1116 of the Maryland Transportation Code.  A conviction for exhibition driving would add 8 points to a person’s license and 12 if there was an injury.  Criminal penalties would include a jail sentence up to 60 days if no injuries, and up to 1 year if there was a serious bodily injury.  This bill would effectively end the special event zone requirement and would become state law in all jurisdictions.

Lawmakers are also attempting to strengthen Maryland child pornography laws by adding provisions that would make possession of more than 100 images or videos a felony punishable by up to 10 years in prison.  Additionally, possession of any child pornography that depicts a person under 13 years old would be a felony regardless of the number of images.  Possession of child pornography is currently a misdemeanor offense in Maryland, though this modification would result in a large number of possession cases being filed as felonies.

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thirteen-bags-of-marijuana-found-in-taxi-cabWhen recreational marijuana use became legal this past summer police officers were stripped of a major law enforcement tool.  Probable cause vehicle searches based solely on the smell of cannabis has over the years resulted in hundreds if not thousands of arrests in Maryland for crimes ranging from drug trafficking to transporting a firearm.  Many of these searches were suspect, as officers frequently performed them without ever locating actual marijuana.  In cases where police seized other contraband such as guns, narcotics or stolen property from a vehicle an arrest was made, and the defendant prosecuted.  The fact that the entire case began based off an error in judgment by a cop, or worse, a flat out lie rarely became a consequential issue.  When arguing a motion to suppress evidence in an automobile search a judge must only be convinced that the officer acted on a probable cause belief that he or she would locate evidence of a crime.  Probable cause is a much lower standard than proof beyond a reasonable doubt, which is the standard to determine guilt or innocence.  Simply put, the deck was stacked against a defendant who was trying to fight an unlawful vehicle search based on alleged odor of marijuana.

The tide drastically changed when marijuana use by adults became legal.  Currently if an officer smells marijuana during a traffic stop, there is no reasonable means to conclude that a crime is being committed based on the smell of pot alone, as possession of marijuana under the civil amount of 1.5 ounces is perfectly legal for someone 21 or older.  Rather than face the prospect of hundreds of searches being overturned, lawmakers in Annapolis intervened and declared that officers would no longer be allowed to initiate warrantless vehicle searches based on the odor of cannabis.  More than six months has passed since this law went into effect, and it still doesn’t sit right with many lawmakers.  Back in November the Joint Republican Caucus stated it would attempt to overturn the law that now bars police from searching a vehicle based on the smell of weed.  The law was passed during the final hours of the 2023 legislative session and resulted in a host of republican lawmakers walking off the House floor in protest.  These politicians now argue that the search law prevents police from enforcing impaired driving laws, though this is a bit of a stretch.  Their argument is that police officers who smell the odor of marijuana emanating from a moving vehicle would not be able to stop said vehicle and initiate an investigation.  What this argument ignores is the fact that officers can still follow the vehicle and wait to observe signs of actual impairment or simply a traffic infraction.  Additionally, police in Maryland are still able to conduct a traffic stop if they observe vehicle occupants actively smoking marijuana.  Under Maryland law it is illegal to consume marijuana and alcohol inside a vehicle on a state roadway.  A police officer who observes active marijuana smoking inside a vehicle would have reasonable suspicion to initiate a traffic stop, and then may develop probable cause to detain a driver for a DUI investigation.

While impaired driving concerns are potentially real, as states where marijuana use is legal have reported a slight uptick in injury auto accidents and traffic fatalities, the bigger issue with the no-search law may be the effect on overall crime prevention.  Marijuana based vehicle searches have resulted in the seizure of hundreds of handguns over the years, and many of these firearms were taken from disqualified individuals.  As firearm crimes and the number of illegal guns on Maryland streets continue to rise police are looking for more ways to get guns off the street, not less.  The pervasiveness of ghost guns and the large number of juvenile gun crimes has also put the pressure on lawmakers and police to produce results.  We will of course follow any measures to repeal the vehicle search law and may post a follow up article once any bills hit the floor in Annapolis.  If you have been charged or are being investigated call Maryland gun and weapon crime lawyer Benjamin Herbst anytime at 410-207-2598 for a free consultation.  Benjamin specializes in Maryland juvenile gun charges and adult charges for illegal possession of a firearm, minor in possession and violations of the wear, transport and handgun carry law.  He has successfully represented dozens of out-of-state defendants from places like Virginia, Georgia and North Carolina where the gun laws are far more relaxed.  He also defends clients charged with all other crimes in state and federal court, including possession of marijuana over civil,  CDS narcotics violations, theft, robbery and traffic charges.

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cannabis-1418339__340-300x290The Montgomery County Council is determined to crack down on driving while impaired by cannabis, but the method by which to accomplish this goal is still in still very much up for debate.  This week members of the Montgomery County Council’s Public Safety Committee met to discuss the issue of marijuana induced impaired driving and the meeting offered some insight on the challenges facing police officers who are tasked with enforcing Maryland impaired driving laws. There is currently no valid scientific test for marijuana impairment that compares to a breathalyzer test, which is used to test blood alcohol content in DUI cases.  Alabama is apparently one of the only states in the country that employs court approved saliva tests for cannabis concentration.  Other states have been reluctant to use this questionable methodology due in part to THC being tracible for several weeks after ingestion.

Without a certified scientific test for cannabis concentration law enforcement officers must rely on their observations of the suspect to prove impairment to a judge or jury.  These include the driving pattern of the suspect, his or her statements and standard field sobriety exercise such as the HGN test, walk and turn and the one-legged stand.  Officers need to establish evidence of impairment before requesting participation in these exercises, and skilled criminal defense lawyers can often pick them apart if there is no corroborating evidence such as a scientific test or an admission by the suspect.  Still, county officials are determined to even the playing field through the use of “green labs” where law enforcement officers can hone their cannabis impairment recognition skills.

Montgomery County is home to the state’s only green lab, where volunteers ingest cannabis in a controlled environment at the county police department’s training academy.  The labs have been around for a few years after originally being proposed by a veteran traffic enforcement officer in 2017.  Since then, the department has hosted several sessions, which start with the volunteers smoking marijuana, vaping or consuming edibles and then transition to an observation and testing period.  There is no indication that the volunteers are asked to get behind the wheel of an automobile, and realistically this could only happen under extremely controlled circumstances in a closed area.  These precautions would likely limit the amount of usable data, as there is simply no way to simulate driving in actual traffic.  The labs likely offer police a glimpse of how a person under the influence of cannabis may look, sound and act, though how this translates to recognition of impairment is up for debate.

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holster-648014__480-300x206The Maryland State Police recently issued an agency-wide memo instructing its employees to continue to uphold the HQL law, which was just declared unconstitutional by a panel of three federal judges last week in Richmond.  Citing the infamous 2022 Supreme Court decision out of New York, the Fourth Circuit Court of Appeals ruled 2-1 that Maryland’s Handgun Qualification License is overly burdensome and not consistent with historically accepted limitations on firearm purchases.  Gun lobbyists from the NRA hailed the ruling as a major victory, while state officials including the Governor and the Mayor of Baltimore City expressed displeasure with the decision.  When the ruling came down last week the Governor’s Office issued a statement expressing a desire to continue to fight for the HQL, but this week the Attorney General’s Office stated they are weighing their options.  Enforcing the HQL despite the recent ruling may not end up being much of a story, as the decision has yet to become legally binding.  The federal court has not issued a mandate yet and will not do so until 7 days after the 14-day window to request a rehearing has expired.  If the State does not request a rehearing the mandate to strike down the HQL process would go into effect on December 11.  The State could also seek review by the Supreme Court though based on the Bruen ruling out of New York it would be unlikely to prevail.

The Blog will continue to follow this exchange between the courts and a state that is predominantly anti-gun.  Some lawmakers may try to circumvent this federal trend to loosen the state’s gun laws by introducing bills when the legislative session commences in January in Annapolis.  While these bills can sometimes create a few news headlines for attention hungry members of the House or Senate, they will likely be shot down by more experienced members of the judiciary committees.  Local politicians have already tried to circumvent state federal law by enacting county ordinances that restrict handgun possession beyond what state law allows.  A recent opinion in the Montgomery County Circuit Court struck down a county ordinance that prohibited firearm possession within 100 yards of any public or private place of assembly including schools, daycare centers, libraries and businesses.  The ordinance brashly attempted to start the measurement from the edge of the parking lots of these places, which would have restricted firearm possession of a licensed individual while traveling on a state highway.  Another provision of this overturned law attempted to restrict possession of ghost guns by outlawing privately manufactured gun parts without serial numbers.  Once again, this attempt to circumvent state and federal law was struck down by a judge for being overly broad and more restricted than state law.

January is shaping up to be an interesting month in Annapolis, and we will be providing updates on all the criminal law developments, including those aimed at banning ghost guns and making it more difficult to wear, transport and carry a firearm.  If you or a loved one has been charged with a firearm crime, contact Maryland gun possession lawyer Benjamin Herbst anytime for a free consultation.  Benjamin vigorously defends adults and juveniles in all Maryland courts from the Eastern Shore to Western Maryland.  He has won jury trials for offenses such as possession of a firearm by a convicted felon, use of a firearm in a crime of violence and possession of a firearm by a minor.  Benjamin also specializes in warrant recall motions, bail review hearings for gun offenses and domestic crimes and is an experienced Maryland violation of probation attorney.  Contact Benjamin anytime for a free consultation at 410-207-2598 and learn what defenses may apply to your case.

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pistol-1350484_1280-300x200Roughly ten years ago Maryland lawmakers passed the Firearm Safety Act of 2013.  For the last decade anyone who wished to purchase a handgun in Maryland was forced to apply to the State Police for Handgun Qualification License or HQL.  There were several requirements for obtaining a HQL, with the first being eligibility to own and possess any type of firearm.  In Maryland this meant the applicant must have been at least 21 years old and have no prior convictions for an offense that carried a maximum penalty of two years or more.  Additionally, all Maryland HQL applicants must have completed a four-hour gun safety course that included firing an actual round and passing a background check.  The background check mandated that the applicant be fingerprinted, and any prior criminal or domestic violence related cases that show up were be considered.  There is no statute of limitations for prior convictions, as we have seen applicants denied for 40 and even 50-year-old criminal convictions.   Once the State Police approved a person for an HQL, he or she would be permitted to purchase a handgun provided the appropriate federal ATF forms are also filled out properly.  In Maryland an HQL did not give a purchaser the right to carry or transport a handgun or any firearm for that matter.  A person who is caught driving with or carrying a firearm without a concealed carry permit will likely be arrested and charged regardless of whether they held a valid HQL.  Possessing an HQL potentially helped in mitigation, but it was never a defense to a firearm possession charge.

Maryland Handgun Qualification Licenses have been much easier to obtain than wear and carry permits, but the 2022 Supreme Court decision in Bruen drastically turned the tide.  These days in Maryland a large percentage of HQL holders were able to obtain a carry permit if they completed additional gun education and safety requirements.  Lately we have received more calls about HQL denials than wear and carry permit denials, but as of this week we may never field a call about a HQL denial again.  On Tuesday a federal appeals court struck down the entire HQL policy, and specifically called out the background check requirement that has forced law abiding gun purchasers to wait a minimum of one month before being able to obtain a handgun.  The appeals court opined that the state failed to demonstrate any historical requirement that a citizen receive advance permission to purchase a firearm in Maryland.  The court stated a person should be able to purchase a firearm if they feel they are in danger and being forced to wait 30 days or more is unacceptable.  The wait time is exactly what supporters of the HQL policy have lauded as an effective tool in preventing gun violence.  The Governor and the Mayor of Baltimore have expressed displeasure over the ruling, while the gun lobby is celebrating a major victory.  Maryland is one of a dozen or so states that require gun purchasers to pass strict background checks, and this number could be zero within a year if the Supreme Court agrees with this decision out of the Richmond federal court.

The Blog will continue to follow this story as it will generate a ton of attention over the next few months.  The legislature begins its session in January and there are bound to be reactive attempts to keep Maryland a strict gun law state.  Federal courts can intervene when laws are deemed to restrict the Second Amendment, but the courts are generally not able to interfere with the harsh punishments that Maryland provides for gun offenders.  Anyone caught carrying or transporting a firearm without a license in Maryland still faces arrest and potential jail time depending on where the offense took place.  This includes federal property such as the NIH, CMS and the various military bases in Maryland where even state carry permits are not valid.  With respect to state cases, Prince George’s County, Baltimore City and Charles County often attempt to hand down the harshest punishments for gun offenses, but each case is different and there is always a legal argument that can be made in a gun case.  If you or a loved one has been charged with a gun offense contact Maryland criminal defense lawyer Benjamin Herbst anytime for a free consultation.  Benjamin specializes in Maryland gun crimes such as wear, transport and carry, possession by a prohibited person, minor in possession of a firearm and possession of a firearm at a federal facility.  He is an experienced juvenile gun lawyer and has successfully argued for the dismissal of adult gun charges in state and federal court.  Contact Benjamin anytime for a free consultation at 410-207-2598 and learn how you may be able to fight your gun charge.

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annapolis-237078_960_720-300x195The 2024 Maryland legislative session is roughly two months away, but there are already signs that juvenile justice will be a hot topic when lawmakers report to Annapolis in January.  The Maryland House Judiciary Committee has already held multiple juvenile justice fact-finding meetings in advance of the legislative session and may hold others before the end of this year.  The meetings come in response to increasing outcry by the public, law enforcement and State’s Attorney’s Offices.  Many have been critical of recent changes to juvenile justice policies that limit who the police can arrest, detain and interrogate.  While there is no proven correlation between juvenile justice reforms and a rise in crime, many believe reform has directly contributed to skyrocketing carjackings, shootings and violent assaults committed by those under the age of 18.

One of the most impactful juvenile justice reforms has virtually eliminated juvenile interrogations in Maryland.  Anytime a juvenile suspect is arrested the police are required to allow the suspect to speak to an attorney before answering questions.  Many people are under the impression that police must seek permission from parents or guardians before speaking to a juvenile suspect in custody, but this was never the law in Maryland.  Police were simply required to read Miranda warnings to the suspect before engaging in an interrogation like they would with an adult suspect.  This presents numerous issues regarding a free, knowing and voluntary waiver of Fifth Amendment rights that is required for statements to be admissible.  It is argued that juveniles rarely understand the rights they are waiving, and thus cannot make a legally sufficient waiver.  This is especially true when the juveniles are under duress and face intimidation by law enforcement.  The legislature agreed, and now juveniles are rarely if ever advised to make statements.  Criminal interrogations were once the strongest law enforcement tool to locate co-defendants in juvenile cases and to solve past and even future crimes.  A large percentage of juvenile crimes involve multiple co-defendants, as teenagers spend most of their time out of the home with friends or classmates.  Since the summer, police officers investigating juvenile crimes have been forced to rely solely on evidence gathered at the crime scene, and through talking to witnesses that agree to cooperate.  As such, it’s no surprise the reforms have been blamed for the increased amount of felony juvenile criminal activity in Maryland.

Another recent reform that could face further scrutiny is the law prohibiting police from arresting a juvenile under the age of 13 for a non-violent crime.  We previously posted on an 11-year-old that was suspected of stealing multiple cars in Baltimore City and Baltimore County.  Critics of this provision believe any type of criminal activity can ultimately lead to violence, and not prosecuting young juvenile defendants for serious crimes establishes a harmful precedent.  The Blog will continue to follow juvenile justice policy as we head toward the next legislative session.  Rising juvenile crime rates will be a top priority for lawmakers as soon as they report to Annapolis, but it is unclear whether any of the reforms will be walked backed after just one year in effect.

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hammer-719066_960_720-300x225On October 1 the Maryland Redeem Act became state law, and now thousands of individuals can file to expunge prior criminal convictions that were once considered permanent.  The Redeem Act is a major breakthrough for those who have struggled to advance in the workplace, obtain professional licenses and secure loans or apartment leases.  It provides an avenue for prior defendants to apply for expungement in numerous types of charges, including felony drug cases.  In addition to adding more charges to the list of qualifying offenses, the law also shortens the wait time necessary to apply for expungement.  The relevant portion of the Redeem Act is codified in the Criminal Procedure section 10-110 of the Maryland statutes, though the section lists the crimes by statute number and not name.  It is advisable to have your charging document handy when checking to see if your prior offense qualifies, or you can consult with a Maryland criminal defense lawyer.

In this post we’ll go through some of the major changes to the expungement laws, but for a more detailed analysis about your particular situation, feel free to call Maryland expungement lawyer Benjamin Herbst anytime at 410-207-2598.  The Herbst Firm handles expungements and petitions for early expungement based on good cause.  It’s safe to say that the drug laws have been impacted the most by the Redeem Act, as convictions for possession with intent to distribute are handed out like candy in the courthouses across the state.  Many a defendant has accepted a guilty plea to this crime to get out of jail or simply to close the case and move on with life, only to have it severely hinder personal growth in the future.  If the criminal defense attorney on the case did not successfully argue for probation before judgment or if a timely motion to modify was not filed within 90 days, the conviction used to last a lifetime.  Though as of October 1, there is hope for anyone with an old PWID or distribution charge, as an application to expunge may be filed 7 years after a time served disposition or 7 years after probation or parole has ended.  Anyone with a marijuana distribution or PWID conviction can file for expungement 3 years after the disposition or the end of probation or parole if applicable.

Felony theft and burglary may be expunged after 10 years, but other felony charges have yet to be added to the list of crimes that are eligible.  This includes motor vehicle theft, which is not one of the offenses that is currently expungable under Maryland law.  Gun crimes have also not been added to the list of expungable offense.  On the positive side, misdemeanor offenses such as CDS possession not marijuana, burglary in the 4th degree, malicious destruction of property, disorderly conduct, prostitution, obstructing and hindering and various others are expungable after 5 years of the conclusion of the case or the end of probation/parole.  Prior convictions for domestically related crimes such as second degree assault and violation of a protective order are not eligible for 15 years.  If assault in the second degree or protective order violation convictions were not marked as domestically related, they would be eligible after 7 years for assault and 5 years for violation of a protective order.

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alcohol-beer-197x300Most of the criminal justice bills that are either signed into law by the Governor or otherwise pass the General Assembly become law on October 1 each year.  The exceptions are major policy changes such as the legalization of marijuana, which typically are planned farther in advance.  Marijuana legalization stole all the headlines on July 1, but there were still a fair number of laws that went into effect last week.  One such law was a provision of the Natural Resources article, which adds enhanced punishments for boating under the influence (BUI) and in some cases for driving under the influence or driving while impaired.  The new law focuses on repeat offenders, but not in the traditional sense, as it aims to enhance the punishment for boating offenders with a record of drunk driving and driving offenders with a history of boating under the influence.

The State Boat Act already has provisions that punish repeat offenders; a first offense for boating under the influence carries up to 1 year in jail, while a second offense carries up to 2 years.  A third or subsequent conviction for BUI carries up 3 years in prison.  Boating while impaired, which is a lesser offense than boating under the influence carries a 60-day maximum sentence for a first conviction, and a 1-year maximum for a second or subsequent.  These penalties are similar to the drunk driving laws in transportation article 21-902.  The new Natural Resources Law will now count a defendant’s DUI or DWI convictions as prior offenses in impaired boating cases.  This means that a person with a prior drunk driving conviction could face up to 2 years in prison for a first boating under the influence charge.  The new law also allows the State to consider prior boating convictions under the State Boat Law when recommending a sentence for a DUI or DWI case.  Subsequent offender enhanced penalties for boating under the influence only apply if a defendant was convicted of the prior offense within the last 5 years, and probation before judgment (PBJ) does not count as a conviction.  Also, in order for the enhanced penalties to apply the State must provide notice to the defendant at least 30 days prior to trial of its intent to seek subsequent offender enhancements.

Natural resources offenses such as boating under the influence can lead to serious consequences including a permanent criminal conviction, jail time and the loss of one’s privilege to operate a vessel in Maryland.  Many boating offenses have extremely harsh consequences compared to similar traffic violations.  For example, a second offense for speeding on a state waterway can carry up to 30 days in jail.  Boating offenses involving alcohol or drugs are taken extremely seriously by the State and by judges, which makes it all the more important to retain an experienced lawyer before you go to court.  If you have been charged with BUI or any violation of the State Boat Act contact Maryland criminal defense lawyer Benjamin Herbst anytime at 410-207-2598.  Benjamin has successfully defended over 500 DUI, BUI and DWI charges and has the experience and dedication to fight for the best outcome in your case.  Benjamin has locations in Anne Arundel County and Baltimore City, and accepts cases in all jurisdictions in Maryland.  He has won DUI trials in Worcester County, which has the highest conviction rate in the state, as well as numerous other counties and is standing by to fight for you.  Benjamin is also an experienced federal DUI lawyer for those who have received citations on 295, Fort Meade and the various other parkways and military/federal installations in Maryland.  He represents adults and juveniles in all drug and alcohol violations including open container and public consumption citations, and also specializes in representing out of state defendants who are traveling through Maryland when stopped.

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pistol-1350484_1280-300x200The House and Senate approved Senate Bill 1 and House Bill 824, and both will almost certainly become law on October 1, 2023.  House Bill 824 did not receive much fanfare, but will further tighten Maryland’s already strict gun laws.  The Bill, which was introduced by a Delegate who also serves as an Assistant State’s Attorney in Anne Arundel County, expands prohibitions on regulated firearm possession under the Public Safety Code.  Starting in the Fall anyone who is one supervised probation for an offense that carries a maximum penalty of 1 year or more in jail will not be able to possess a firearm.  The new prohibition also includes those on probation for DUI or DWI under the §21-902 (a) and (b) of the Transportation Article.  Defendants on probation for violating a protective order would also be prohibited from possessing a regulated firearm.  This provision only applies to individuals who are placed on supervised probation after being convicted, which means that those granted probation before judgment would not be subject to a charge under the Public Safety Code for possessing a firearm while on probation.  It is important to remember that those on supervised probation are typically prohibited from possessing firearms unless a judge specifically allows it.  This is standard condition of probation in Maryland, though a violation would be considered a technical probation violation and not a new offense.  Technical violations of probation carry a presumptive maximum penalty of 15 days in jail, while a violation of this new provision in the Public Safety Code would be a misdemeanor with a 5-year maximum penalty.

House Bill 824 also prohibits a person from obtaining a Maryland wear and carry license if he or she has been convicted of a violation of criminal law section 4-104, which prohibits storing or leaving a loaded firearm in a place where an unsupervised minor could gain access to the firearm, and an injury or death resulted.  If there was no injury the prohibition would only extend to a person convicted of a second or subsequent violation of this provision.  Offenders who receive a conviction for child’s access to firearms after October 1, 2023 will have to wait five years from the date of the conviction to apply for a handgun permit.  The bill also raised the permit fee to $125, up from $75.

Senate Bill 1 received most of the media attention, and will likely continue to create news headlines after it becomes law in October.  We wrote about this bill previously, and the version that passed the General Assembly was not substantially altered from our last post.  This law will have major restrictions on where licensed individuals can possess firearms, including prohibiting possession at schools, concerts, sporting events, organized youth and adult sports leagues and state government buildings.  A violation under this new law would result in a misdemeanor that carries up to 90 days in jail for a first offense, and up to 15 months for each violation thereafter.  Firearm possession is already illegal in federal facilities and buildings in Maryland under federal law regardless if a person holds a Maryland concealed carry permit.

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thirteen-bags-of-marijuana-found-in-taxi-cabThe legalization of marijuana in Maryland will have a much broader reach than simply eliminating the prosecution of marijuana possession cases.  Perhaps the largest collateral consequence of legalization is the effect it will have on law enforcement’s ability to search a vehicle.  Even after marijuana possession was decriminalized police officers in Maryland maintained the ability to search a car based on the odor of marijuana. Police lost the ability to search a person and his or her belongings, but vehicles have been fair game.  In fact, a police officer can technically initiate a traffic stop based on the odor of marijuana, without even observing a traffic violation.

A massive number of criminal cases start with the search of a suspect’s vehicle.  Traffic stops are some of the only up-close encounters citizens ever have with police, and thus law enforcement agencies train their officers to take full advantage of these encounters.  Police are trained to identify individuals who are likely to be engaged in criminal activity, and then to continue to develop them as suspects.  Officers are permitted to initiate a traffic stop even if their ultimate goal is to obtain probable cause to search a vehicle.  Pretextual stops, where officers wait for a vehicle to commit a minor traffic infraction with the larger goal of investigating a more serious offense, have always survived constitutional challenges.  At the present time one of the most common ways to bridge pretextual and ordinary traffic stops to a probable cause search is the smell of marijuana.  These stops account for a great deal of arrests for gun and drug possession cases, but the legalization of marijuana looks to throw a wrench in this common law enforcement tactic.

When marijuana becomes legal in Maryland on July 1, 2023 it will no longer be considered contraband and thus cannot be used to justify a criminal detention and search.  This is something that law enforcement agencies and prosecutors have been planning for, but there is currently no policy in place that actually states a police officer will not be able to perform a search after smelling burnt or raw cannabis.  It would have been a major waste of resources to simply do nothing and wait for a defendant to challenge a search in court.  This path would have forced the Supreme Court of Maryland to establish the policy, but clearly having the legislature enact a law would be the preferred option.  House Bill 1071 does just that, and after passing easily (99-34) in the House is headed for a vote in the Senate.

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