Marijuana

Published on: February 14, 2019

Marijuana Still Looming Large In Annapolis

Marijuana has been a major issue for state lawmakers in almost every recent legislative session, and this year is shaping up to be no different. Despite all the progress over the last five years in crafting state marijuana policy there are still numerous key issues that have yet to be settled. Without a doubt the headliner is the legalization of recreational use, but realistically 2019 does not appear to be the year where it’s going to happen. Legalization aside, there are still smaller points that need to be addressed, and many will be debated in Annapolis over the coming weeks.

One of the most common questions defendants ask is whether their probation can be violated for testing positive for marijuana. The simple answer is that a positive THC test can subject a defendant to a violation of probation, but what happens after a violation is submitted depends on a variety of factors. A standard condition of all Maryland probation sentences is that the defendant shall not illegally possess or use controlled substances, and marijuana is still a controlled substance in our state. A defendant who does not have a state medical cannabis license could easily be subject to violation of probation sanctions for a positive test, or even a civil possession citation. Obtaining a medical license could create a defense that the marijuana was possessed and used legally, but the idea for medical users is not to be violated in the first place. Licensed medical patients may be better off informing their probation officer ahead of time, rather than attempting to explain a positive test after the fact. The flip side is the argument that being a medical cannabis patient is protected health information that defendants should not be required to disclose. The reality is that probation officers and the courts have bigger things to worry about, and lawmakers have taken notice.

Rather than continue the back and forth over a substance that will likely become legal in 2020 one lawmaker has introduced a bill that would bar a positive marijuana test from being considered as violation of parole, probation and pre-trial release. There are exceptions to this rule such as when the judge specifically orders the defendant to abstain from the use of marijuana, but overall this law would clear up a great deal of confusion and alleviate an unnecessary burden on the courts. The same bill also proposes that the threshold for a criminal versus civil infraction for illegal possession of marijuana be increased from 10 grams to 1 ounce (28 grams). This proposal has been debated in other legislative sessions, and almost became law last year. Though it may not end up being a hugely impactful change, certain lawmakers have repeatedly questioned the arbitrary nature of a 10-gram limit. This bill also includes language creating a presumption that possession of less than an ounce does not support a felony charge for possession with intent to deliver, but the State could rebut this presumption with specific evidence of dealing.

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Published on: January 30, 2019

Baltimore City Prosecutor Ditching Pot Possession Cases

By Benjamin Herbst

Baltimore’s top prosecutor recently announced that her office will no longer prosecute marijuana possession in the city effective immediately, and additionally will vacate nearly 5,000 prior possession cases dating back to 2011. The announcement, which was posted on the Baltimore City State’s Attorney’s website has already generated national headlines. Both CNN and the New York Times have published articles about the announcement, and local news stations were on hand to televise a follow-up press conference. The 39-year old chief prosecutor stated that pursuing marijuana possession cases offers no public safety value, erodes public trust and diverts valuable police resources away from more important cases. Additionally she stated there is no association between marijuana possession and violent crime, and that these possession cases disproportionally targeted communities of color. The office will continue to prosecute distribution and possession with intent to distribute marijuana cases as long as there is additional articulable evidence of dealing. Each of these crimes is a felony under Maryland law, but first time offenders in Baltimore City will now be offered diversion and given the opportunity to have their cases dismissed and expunged.

While some members of the community lauded the prosecutor’s decision, other government officials didn’t just jump onboard with her plan. In the press conference the prosecutor called on the local law enforcement community to join in and focus their attention and resources on violent crime, but the city’s top cop didn’t bite. The interim police commissioner publicly voiced his disapproval of the State’s Attorney’s plan, and declared that his officers will not be directed to discontinue arresting or citing individuals for possessing marijuana in the city. The interim top cop, who will be replaced in the coming months by an out of state successor, said in no uncertain terms that his officers will continue to enforce state marijuana possession laws. He went on to say that the last thing the city needs is another illegal substance, and added that he and his colleagues absolutely see a link between violent crime and marijuana. The interim commissioner didn’t explain how the two are linked other than to say that his commanders see it all the time in Baltimore.

There is little doubt that police officers in Baltimore and throughout Maryland have deemphasized marijuana possession cases. Law enforcement still uses pot as a means to gain access to vehicles and justify searches of a person, but there are fewer possession cases showing up in court. The fact that the interim police commissioner came out so strong so soon against the City State’s Attorney seems more like a defense of the department’s autonomy. The commissioner in essence was stating that no lawyer could tell him and his officers which laws to enforce and which laws to ignore. Logically speaking, there is absolutely no reason why a city cop should charge someone with possession of marijuana if the case won’t be prosecuted. It would be hard to find a worse way to spend tax payer dollars and tie up police resources than to charge someone in a case that will undoubtedly be dismissed, but politicians will be politicians. And speaking of politicians, the Mayor came out with a statement that unsurprisingly supported both sides and avoided offending either. Rather than take a stance the Mayor’s office played politics and stayed neutral.

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Published on: January 22, 2019

2019 Legislative Session Underway

By Benjamin Herbst

The 2019 Maryland legislative session is officially underway, and once again gambling and marijuana are set to take stage as two of the highest profile issues this winter. Healthcare, minimum wage and clean energy will grab occasional headlines, but the Blog will stay in its lane and only offer commentary on the criminal related issues set for debate in Annapolis. Marijuana seems like the less complex of the two criminal law topics because there’s really only one major question, to legalize or not to legalize. There is no doubt that recreational marijuana will one day be legal in Maryland, but it’s far too early to tell if this is a realistic possibility in 2019. Those who have been following the slow progress of state cannabis law believe 2020 is the more likely year for recreational sales to debut. Legalizing recreational use will certainly not be the only marijuana issue up for debate, as lawmakers will be forced to deal with lingering medical marijuana questions such as limiting the ability of large national corporations to buy out or undercut local grow operations and dispensaries. There will also likely be a host of issues tossed around pertaining to the number of grower and dispenser licenses that are available, and when these licenses can be issued.

As usual, the Blog will stay on top of all things cannabis in this year’s legislative session, but sports gambling may actually produce more headlines coming out of Annapolis. Maryland clearly missed the boat on taking advantage of a recent Supreme Court decision that made it unconstitutional to prohibit states from offering legalized sports gambling. New Jersey and neighboring Delaware were ready to pounce as soon as the decision came down, and their sports books were up and running within weeks. Both states have been raking in tax revenue for almost a year now, and casinos and racetracks in these states will be jam packed on Super Bowl Sunday (likely with a number of Maryland residents). In order to make up for the lack of foresight of previous lawmakers this year’s Senators and Delegates may try their hand at bending the State Constitution to legalize sports gambling earlier than once thought possible.

The State Constitution specifies that major expansion of commercial gambling must be a decision left up to voters by way of a referendum. The last referendum took place in 2012 when voters approved table gaming such as blackjack and poker and green-lit the new MGM National Harbor Casino in Prince George’s County. There were no gambling referendums in 2018 and the next chance to hold one will be in 2020, though many feel this is too long to wait due to the amount of revenue at stake. One potential solution could be to place sports gambling under the control of the state lottery, and treat wagering as just another lottery game. But taking bets on the Patriots to win the AFC is much different than selling Ravens scratch-off tickets, which is why the proposal could end up sparking intense litigation. And even if this lottery idea passes the General Assembly and is signed by the Governor, there is no guarantee that any bets will be placed before a potential 2020 referendum, as implementing new programs quickly and efficiently is not one of Maryland’s fortes. There are too many regulatory issue to be hammered out, and simple questions such as where betting would take place and potential tax percentages are yet to be answered.

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Published on: December 6, 2018

Medical Marijuana Sales Shattering Expectations

By Benjamin Herbst

Just one year ago dozens of medical marijuana patients lined up outside a Montgomery County dispensary to make the first legal pot purchases in Maryland. This past Saturday marked the official one-year anniversary of those historic medical cannabis sales, and business is now booming for the industry. The Maryland Medical Cannabis Commission or MMCC originally estimated first year sales to total $46 million, but now it looks like their prediction was off by a wide margin. After posting modest revenue of $1.8 million in the launch month last year, revenues then increased dramatically each month thereafter. January produced $2.6 million in revenue, February jumped to $3.8 million, and March to $5.5 million. This August and September both produced total revenues over $10 million and the numbers continue to climb. At this point it is a not so conservative estimate that sales for 2018 will top $100 million, more than twice the number thrown out by the MMCC.

The revenue prediction from the MMCC was hardly a guess and likely based on data such as polling of potential patients and comparing revenues from other states. Though regardless of their scientific approach it’s easy to see how the state drastically underestimated the power of its own program. Most people just don’t want to talk about their marijuana use to those outside their close circle of friends, and they especially don’t want to discuss it with the government. Unfair as it is, there is still a major negative stigma attached to marijuana that alcohol has managed to avoid. In America it’s still perfectly acceptable to have a few beers after work, but take a puff or two and all the sudden you are a drug user. Numerous private companies and government agencies have drug polices that prohibit marijuana use, and a soldier can easily be kicked out of the military for casual consumption. While half the states have legalized medical cannabis, the professional world hasn’t caught up, thus it’s still not completely acceptable to use this natural product with medicinal value. Patients and social users still have much to lose by talking freely about their use.

Other reasons for the staggering revenue reports have to do with geography, as Maryland is surrounded by states to the south that have not yet fully embraced the medicinal value of cannabis, and will likely be some of the last to allow legal use. Virginia and North Carolina technically have medical marijuana programs, but access is more difficult and may be limited to CBD and low THC products. Maryland allows out of state residents to obtain a license and make purchases, and the process is not difficult or expensive. In addition to physicians, nurse practitioners, dentists and other professionals have the authority to prescribe medical cannabis and many do not require lengthy and comprehensive evaluations. The state has made it quite simple to obtain approval to purchase.

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Published on: October 19, 2018

Can Medical Marijuana Patients Purchase Guns?

By Benjamin Herbst

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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