Articles Posted in Maryland Legislature

The legalization of marijuana for recreational use will not become a reality in Maryland this year, as state politicians have conceded that their efforts will have to wait until 2022.  The work of several lawmakers in Annapolis sparked interest across party lines over the possibility of regulating marijuana for recreational use.  Lawmakers and lobbyists were excited by the opportunity to end needless criminal prosecution over a substance that Maryland residents want to access, while also generating millions of dollars in tax revenue for the state.  Both the House and the Senate debated bills that would have established a licensing process for recreational marijuana sales, along with a tax structure to generate revenue.  The bills were wordy and complex, but produced several interesting snippets that appeared in news headlines across the state’s media outlets.

The House and Senate bills aimed to establish a lawful possession threshold of 4 ounces of flower cannabis, which is roughly ten times the amount that currently separates a civil infraction from criminal possession of marijuana.  Many lawmakers have taken issue with the current marijuana possession law due to the arbitrary assignment of 10 grams as the amount that triggers criminal prosecution.  There has never been any logical explanation why the legislature settled on 10 grams other than it being a nice round number.  Marijuana is not typically sold in increments of 10 grams either legally or on the street, and it is entirely reasonable for regular marijuana users to purchase more than 10 grams at a time for their own personal use.  In addition to drastically increasing the amount of pot that could be lawfully possessed, lawmakers likely would have allowed Maryland residents to grow their own marijuana plants.  There were provisions in both bills that would have mandated personal cultivation to be out of public view and carried out in a manner that would not provide access to minors.  Lawmakers could have agreed on these issues in time for a unified bill to be presented to the governor.  What they could not agree upon however were more complex issues such as the potential tax rates and the amount of licenses that would be issued.

It has always been our position that a cap on the number of licenses is unfair and encourages a corrupt application process, where those with connections seem to come out on top.  There is no logical reason to place a limit on the number of recreational licenses, just as there is no reason to limit medical grow and dispense licenses.  The state could easily develop a strict and well-funded regulatory arm for recreational marijuana, and all qualified applicants should be permitted to engage in the marijuana business provided they could adhere to the regulations.  Arguments that without license caps recreational marijuana stores could then line the streets of every neighborhood are naïve and unfounded.  It is a great expense and a time-consuming endeavor to open a dispensary, and no investor would make this commitment only to fail due to an overly saturated market.

Two marijuana legalization bills are scheduled to be debated by lawmakers in Annapolis in the coming weeks, and there is an outside chance we could see legalization at least a year sooner than once thought.  The bill we will discuss in the article is currently scheduled for debate in the Senate during the first week in March.  Senate Bill 708 is a lengthy one, with tons of provisions that would only apply to government agencies and those who may become involved in the marijuana business.  The wordy bill boils down to a few major points for actual consumers and all other concerned citizens in the state of Maryland.  First off, the bill would decriminalize the personal use of marijuana.  You can’t start selling it to consumers if it’s still illegal, so the lawmakers in this bill have selected 4 ounces of flower cannabis, 15 grams of concentrates and 6 plants as their arbitrary cut off number.  These limits are more generous than previous attempts at legalization, but still maintain an aura of control.  It’s almost as if the government is still in our ears saying “alright that’s enough, take it down a notch”.   A person would be able to walk around with a quarter pound of pot, but anymore would be a no no.

There are other provisions in the bill as well that would apply to the average Marylander, including easy access to expunge prior marijuana cases and strict measures to assure that individuals who are under the age of 21 are not being provided marijuana.  Homeowners and renters would also be permitted to grow their own marijuana provided there are certain safety measures in place to assure the grow operation is both private and secure.  Without a doubt the most compelling parts of the wordy bill are the provisions that discuss the retail sale of marijuana.  The bill does not simply come out and say marijuana will be legalized, but rather inconspicuously creates the existence of marijuana retailers.  These “retailers” are defined as an entity licensed to purchase cannabis from a grower and sell it to a consumer.  Consumers are not patients, so this is an entirely different animal than medical cannabis.  This is the legalized sale of marijuana for recreational use, and it’s coming sooner rather than later.

After the bombshell about establishing marijuana retailers, the bill goes on and on about the tax provisions and the social equity policies designed to promote and support small business owners.  The tax issue is always a back and forth debate, but in the end the tax number will likely keep the price of retail marijuana just under the price on the street.  After all, it makes no sense to price retailers out of the market, especially when a widely stated goal of legalization is to end the illicit sale of pot.  Anyone who is interested in entering the market may be wise to read the bill, but all others should probably wait until the bill progresses further down the legislative process.  There are bound to be more changes on the horizon.  The Blog will continue to follow marijuana legalization efforts in Maryland and Florida, and will post a follow up article as more news comes out of Annapolis.  If you have been charged with a drug offense such as possession not marijuana, possession with intent to distribute, manufacturing or any other offense contact criminal defense lawyer Benjamin Herbst anytime for a free consultation.  Benjamin specializes in drug charges, gun charges, domestic violence defense, theft, robbery and DUI, and is available anytime at 410-207-2598.  Benjamin is also an experienced South Florida criminal defense lawyer who represents clients in criminal and personal injury cases such as weapons crimes, drug offenses and car accident cases in all state jurisdictions from Miami to Port St. Lucie.  Contact Benjamin at 954-543-0305 for a free consultation about your Florida case.

While the legalization of marijuana for recreational use will likely be debated by Maryland lawmakers during this year’s legislative session, at this point it is unlikely to become law in 2021.  Lawmakers in Annapolis have moved slowly but deliberately, choosing to take incremental steps to reform marijuana policy rather than skipping any major steps.  We saw the addition of a lesser crime for possession of less than 10 grams of marijuana before we saw decriminalization, and we will likely see further tweaking of the decriminalization laws before we see legalization.  House Bill 0032 aims to do just that, and could be the last major tweak of the state’s cannabis laws before full blown legalization.

While decriminalizing possession of less than 10 grams of marijuana was absolutely necessary and welcomed, the arbitrary 10-gram threshold is far from perfect.  The idea was to place a number on the amount that a person typically carries for personal use, but 10 grams is nothing more than a nice round number and not really indicative of the way people use or carry their pot.  A person can walk into a medical cannabis shop and buy more than 10 grams, and many regular users buy more than 10 grams at a time to cut costs.  If the legislature was truly intent on sparing marijuana users from criminal charges the 10-gram threshold had to be addressed at some point.  While we were hoping this would have happened in 2020, it looks like 2021 is when the next changes will take place.

House Bill 0032 aims to actually identify what personal use looks like in the real world, rather than assign an arbitrary number to it.  Under Maryland Criminal Law 5-101 the term “less than 10 grams” is completely replaced by “personal use amount” which is now defined as 2 ounces or less of cannabis flower, 15 grams or less of cannabis concentrates and 1,500 mgs or less of other THC products.  The new bill also includes six or fewer cannabis plants and the byproducts of those plants.  This last modification would be a huge shift from the current policy, as it would effectively decriminalize cultivating or manufacturing of cannabis, which is still a felony under Maryland law.  Many states with medical marijuana programs allow cardholders to grow their own supply, as long as certain precautions are taken.  If this bill passes, Maryland would be the next state to allow some of its residents to grow their own marijuana without fear of a SWAT team executing a felony search and seizure warrant at their home.  This is hardly an exaggeration, as we have seen multiple cases where police enter a private home with assault rifles in order to search for pot plants.

It’s not a question of if, but when marijuana will be legalized for recreational use in Maryland.  With the 2021 legislative session set to begin on January 13, the real question is whether this is the year it finally gets done.  Marijuana legalization has been debated for a decade, but this coming year presents the first realistic chance for it to pass.  Medical cannabis is firmly entrenched in Maryland and is helping thousands of state residents with medical issues, in addition to generating tens of millions of dollars for the state.  The detractors who were worried about increased criminal activity around state licensed dispensaries and grow facilities have been silenced by a lack of reported incidents, and concerns about increased DUI and DWI cases have been largely unfounded.  Access to marijuana by minors is always a concern, but there is has been no evidence that the medical cannabis program has led to increased marijuana use among teenagers.

The success of the medical cannabis program is only one of the factors that lawmakers will consider when making a decision to legalize.  Lawmakers will also consider whether the issue is better suited for a public vote in the form of a referendum similar to the recent sports gambling vote.  The details about licenses and where the proceeds will be directed are also issues that must be debated, but the Maryland Cannabis Commission has already been down that road, and should be better prepared to tackle the issue again.  There are still lawmakers that will never admit that marijuana legalization is long overdue, and these lawmakers should consider the simple question of whether the state should continue to support the illegal sale of marijuana or whether it should join the rest of the contemporary states and begin to legalize, tax and regulate recreational marijuana.  Citizens that want to use marijuana will get it one way or another, and the illegal buying and selling of pot only promotes more criminal activity.

There are other collateral issues that must be considered when marijuana legalization is either put to a vote in the legislature or for the citizens.  We are asked all the time whether citizens are able to grow their own marijuana plants, and the answer is still no in Maryland.  Many states allow their residents to grow a limited amount of marijuana plants in their home, but Maryland has not given up strict control of marijuana production to anyone who is not licensed as a grower with the MMCC.  Anyone who is caught growing even one marijuana plant faces a felony charge for manufacturing marijuana.  This charge carries a maximum penalty of up to 5 years in prison in Maryland and Florida, and is virtually the same charge as possession with intent to distribute marijuana.  While most first-time offenders do not receive lengthy jail sentences for growing a small amount of marijuana, most if not all will likely be arrested and booked.  After an arrest, a person will always have an FBI arrest record regardless of what happens with the case.  Benjamin Herbst is a Maryland and Florida criminal defense lawyer who specializes in marijuana cases including distribution, possession, manufacturing, and possession with intent to distribute.  If you have been charged with any drug offense in state or federal court contact Benjamin anytime for a free consultation at 410-207-2598.  Benjamin has successfully defended hundreds of drug cases including drug trafficking, large amount drug kingpin cases, and possession of a firearm in a drug trafficking crime.  He offers flexible payment plans and is always available to give updates on the progress of the case.

Over the last several years the marijuana policy has greatly evolved in Maryland, and more changes are on the horizon.  From the decriminalization of small amounts of pot to medical cannabis, and even the Baltimore City State’s Attorney’s Office ending prosecution for marijuana possession, the progress has been undeniable.  On the other hand, marijuana continues to be the root of hundreds of criminal prosecutions each year in the state of Maryland, and the majority of these cases begin out on the roads and highways.  There is no easier way for police to make contact with the general public than through traffic stops, and this contact can quickly lead to a criminal investigation based on the smell of marijuana.  With all the changes going on it is important to take a minute to understand what police officers are legally allowed to do on the road, and what they will often do regardless of legality.

Through various rulings in 2019 and 2020 Maryland’s highest court has made it clear that police cannot search a driver or passenger of a vehicle based on the smell of marijuana.  The odor of marijuana or the presence of a small amount of marijuana is not evidence of a crime, and police cannot make a lawful arrest without more incriminating evidence.  Police also are not able to search a person based on the smell or presence of marijuana and then say they were concerned about the presence of a weapon to justify a search.  A search of person requires probable cause to believe that the person is armed or in possession of evidence of a crime.  In addition, police are not permitted to perform the lesser intrusion of a frisk or pat down for weapons unless they have reasonable suspicion that the person is armed.  Reasonable suspicion is a lower level of suspicion than probable cause, but still requires specific facts to indicate the presence of a weapon.

While police now have a far more limited ability to perform frisks and searches of people, they still have the power to perform automobile searches.  Since marijuana is still considered illegal contraband, the odor of marijuana or the presence of a small amount still gives police the authority to search a car under the automobile exception.  Contraband refers to goods that are illegal to possess regardless of whether possession of the goods is a crime.  When lawmakers made possession of less than 10 grams of marijuana a civil infraction, they essentially preserved a police officer’s right to search a car based on the smell of marijuana.  Nine out of ten times when police decide to search a car, they are not doing it solely to find a small amount of pot, and this is why marijuana is such a common cause of roadside arrests.  Searching a car requires time and multiple police units, as an officer cannot search a car and watch its occupants at the same time.  No officer is going to call for backup if he or she believes that the search will only yield a baggie of pot.  To the contrary, police are generally looking for other controlled substances, large amounts of marijuana combined with currency and other evidence of distribution such as scales and empty bags, and finally firearms.  We see dozens of handgun cases each year that begin as simple probable cause searches based on the odor of marijuana, and until marijuana is legalized this law enforcement tactic will continue.  Transporting marijuana of any quantity or smoking in the car essentially give police a free look into a vehicle after any type of lawful traffic stop.  Whether it’s a broken taillight or failing to signal, police do not need more than a primary moving violation or equipment violation to make contact with a potential suspect.

The 2020 Maryland legislative session came and went without much fanfare, as any news coming out of Annapolis was largely overshadowed by the COVID-19 pandemic.  Still, there were some interesting criminal law developments that came at the tail end of the shortened session.  For the last few years we have published multiple articles covering the state’s evolving marijuana policy.  Lawmakers and prosecutors have taken a firm stance on reducing the number of new marijuana cases in the criminal court system, and their efforts have produced significant results.  We have seen fewer marijuana possession cases each year, and most of the cases end up being resolved in a reasonable manner.  Lawmakers have also made a point to remove the negative stigma that follows anyone with a prior marijuana possession case.

Marijuana will eventually be legal for recreational use in Maryland and the rest of the country, and there is no reason why a person with a marijuana possession conviction should face discrimination from potential employers or the public in general.  Rather than wait until pot is actually legal to erase prior cases from the public record, lawmakers took the position to start this inevitable expungement process this year under House Bill 83.  The bill ordered the Maryland Judiciary to remove any information pertaining to District Court marijuana possession cases that were disposed prior to October 2014, as long as there were no other criminal counts attached to the case.  It seemed like a perfectly logical and just undertaking with little downside, and it passed easily in both the House and the Senate.  In fact, the Senate passed the bill 46-0 and while it seemed the process of erasing thousands of old pot possession cases would start in January of 2021, the governor had other ideas.

The governor vetoed House Bill 83 on May 7, and issued a letter to the leaders of the House and Senate explaining his decision.  The letter basically stated that as direct result of the legislature failing to pass his Violent Firearms Offenders Act a number of other criminal law bills were being vetoed.  This included the seemingly innocuous and remarkably uncontroversial marijuana expungement bill.  The governor did not specifically address his policy reasons for shutting down the bill or any other bills including one designed to preserve the confidentiality of juveniles charged as adults.  The veto was purely a political play; the governor didn’t get his way on one criminal law issue so he denied lawmakers on a few others.  Anyone with a six-year old or older marijuana possession case has to pay the price for a totally unrelated failed gun law.  Fortunately, these defendants will not have to wait long for their cases to be erased, as the General Assembly will almost certainly override the veto.  Defendants with newer marijuana possession convictions will eventually have their cases removed from public view by a similar bill to HB 83, though legalization of recreational use may happen sooner.  A defendant with a conviction for an offense that is no longer a crime under Maryland law is eligible for immediate expungement.

As the Maryland criminal code continues to evolve with the times there is an increasing need to address the issue of expungement.  Maryland has a fair and user-friendly expungement process, and in most cases, there is no fee to apply.  Lawmakers already did away with the $30 application fee for all criminal cases where there was a dismissal, nolle prosequi, STET or PBJ.  The one problem with the expungement process though is that most lay people do not realize they are eligible to apply.  This is especially true for defendants who were found guilty of offenses that are no longer crimes (such as possession of less than 10 grams of marijuana), defendants with older cases and those who live in other states.  This year the legislature is taking steps to assure uninformed defendants can still reap the benefits of the Maryland expungement process.  Or better stated, to assure uniformed defendants do not continue to suffer collateral consequences such as difficulty finding employment due to prior criminal charges.

There are two bills in Annapolis that are currently up for debate that would establish procedure for the courts to automatically seal or expunge cases without requiring the defendant to apply.  The bill that is currently in the Senate calls for the courts to automatically expunge all older cases involving only the possession of marijuana by October of 2022.  The bill would also require expungement of all new marijuana cases to commence 4 years of the disposition date.  In cases where there are other criminal counts, expungement of the marijuana counts must be completed by October of 2028.  This particular bill has received push back from the Chief Judge of the District Court as well as the Baltimore County State’s Attorney, who have argued that automatic expungement would be too large a burden for the courts and prosecutors to handle.  The expungement process requires an answer from the state and multiple orders to be signed and sent to the various organizations that keep records of criminal cases.  This includes police departments and the district court clerk’s office, who must then file certificates of compliance after the files are destroyed.  Automatic expungement would certainly cause an immense amount of work at one time should this bill become law.

The House of Delegates bill proposes a solution that would require exponentially less paperwork for government offices.  This proposal would require the courts to automatically seal prior marijuana cases from public view after an enumerated time frame.  The process of sealing would be a matter of simply blocking the case from appearing on the popular Maryland Judiciary Case Search web site.  This process is similar to what occurs with older payable traffic citations and civil marijuana citations.  The supporters of the bill argue that the main purpose of preventing prejudice against defendants with marijuana cases would be addressed through the sealing process.