Criminal Defense Lawyer Blog
Each step toward a viable medical marijuana program brings with it numerous unforeseen obstacles, and it’s been that way in Maryland since 2013. Two years ago lawmakers in Annapolis passed the state’s first medical marijuana program only to see zero institutions take them up on the offer. The legislature thought it was being progressive back in 2013, but the strict program regulations proved otherwise. The following year the General Assembly went back to square one with their sights now set on developing a program that was actually feasible. The regulations were again modified this past year, but once again it was way too early to celebrate. Lawmakers reached an agreement on the number of grower and distributors licenses, but there was still much to be determined about how the application and selection process would evolve. As it stands now the regulations are still not finalized, and probably wont be until next month. No applications are currently being accepted, and all told we’re now looking at late 2016 for the state’s first functioning marijuana dispensaries to open shop. Even this timeframe may still be slightly optimistic, as local politicians may now attempt to restrict the location of the 94 licensed dispensaries.
Generally speaking, our state laws are drafted and voted upon by either senators or representatives, and then approved by the General Assembly and the Governor. Local governments also are free to enact their own laws, provided they don’t interfere with state or federal laws, but local ordinances are less visible as a means to govern the public in Maryland. In the criminal law field local ordinances are few and far between as the state criminal code is thorough. The few local ordinances with criminal consequences we see are typically open container laws (such as in Ocean City), litter laws, and noise violations. In most jurisdictions the most important duty of local politicians is to enact zoning regulations. This is not to say their job isn’t important, as zoning decisions often have millions of dollars at stake.
Local politicians have the ability to become involved in the medical marijuana process if they decide to exercise their zoning authority to restrict the location of growers and dispensaries. In theory a county council member could enact zoning regulations that would completely ban medical marijuana, thus effectively making the state program non-existent in a particular area. This is exactly what may be happening in Baltimore County, as a member of the county council has indicated a desire to introduce restrictive zoning requirements for medical marijuana dispensaries. These restrictions include being 1,000 feet from schools, day care centers, parks, places of worship, and libraries. The proposal would also keep dispensaries in the county at least 2,500 feet away from each other. State politicians, such as senator Zirkin, have taken exception to this type of local proposal, stating it would in essence thwart the state legislature’s attempt to make medical marijuana available to patients in need. Zirkin explained that dispensary zoning regulations should be no more restrictive than those placed on pharmacies, which dispense far more addictive and powerful drugs than pot. The Baltimore County Executive agrees, stating that there is no need for new medical marijuana local zoning laws.
The last couple of months have been quiet on the medical marijuana front, and as a result it did not take much of a pot story to produce headlines at a variety of Maryland news outlets. Last Friday a town planner for the Talbot County seat of Easton announced that the site of a former tool manufacturing plant would receive local zoning approval to become a marijuana growing facility. The planner decided that growing legal pot classifies as agriculture, which is proper in all areas of the Eastern Shore town, save for the historical downtown area. Keep in mind that this facility would strictly be for growing, and would have no dispensing capability, or relationship to any potential local dispensary. Whether this actually turns out to be a story of substance remains to be seen, as the growing company who pitched the town planner has not yet received a state license to grow medical pot. But all the downtime created by the Maryland Medical Marijuana Commission’s methodical pace has left the people and consequently the media in a jumpy mood; nearly any small development will make headlines at this point.
Toward the end of the 2015 legislative session the General Assembly convincingly passed a modification of the marijuana decriminalization law. The modification served to cure an inherent defect in the 2014 decriminalization law by removing the possession of marijuana paraphernalia from the catalog of CDS criminal offenses. It was a logical and necessary fix to the ambiguous situation created by the 2014 law, which punished the possession of pot only by a civil fine, yet still punished possession of the device used to ingest the pot with criminal sanctions. This modification was expected to take effect in October of this year, thus ending the ambiguity and giving law enforcement and prosecutors more time to deal with actual issues of public safety. The only hurdle was an approval from our recently sworn governor, which at the time seemed like a forgone conclusion. But this past week Hogan flexed his socially conservative muscle and vetoed the bill, baffling some lawmakers and angering marijuana reform advocates all over the country. So for at least another year, the only thing criminal about smoking a joint Maryland is the rolling paper that keeps it together.
State lawmakers have officially closed the books on the 2015 legislative session, and there will be a host of new criminal and traffic bills reaching the governor’s desk in the next few weeks. Some have progressed through both chambers with little fanfare, and others have attracted media attention from the first reading onward. The decriminalization of marijuana paraphernalia was a hot topic even before lawmakers convened in January, so naturally this bill received a great deal of attention throughout the legislative process. Numerous amendments were proposed and rejected, but the final bill is concise and pointed, and only modifies two existing controlled dangerous substance laws. These are section 5-601, which deals with possession, and 5-619, which deals with paraphernalia. The drug possession law is simply modified to include a section that makes smoking marijuana in public a civil offense punishable by a $500 fine, while the paraphernalia law is modified with one small paragraph stating that criminal punishments do not apply to paraphernalia involving the use or possession of marijuana. Thus, come October pot paraphernalia will no longer be a crime in Maryland.
When the legislature decriminalized small amounts of marijuana last year the celebration drowned out many of the law’s shortcomings. In last spring’s rush to push decriminalization to the governor’s desk, the legislature neglected to address certain collateral consequences of the new law. One of these consequences was the illogical relationship between newly decriminalized marijuana and the criminal offense of paraphernalia. This created tension and inconsistency between law enforcement and prosecutors throughout the state, and generally left defendants feeling duped and confused. A few weeks ago we posted an article about the legislature’s efforts to cure this defect, and a bill modifying marijuana paraphernalia is well on its way to becoming state law. Paraphernalia may have been the most glaring and publicized omission in the decriminalization law, but it wasn’t the only one.
One of the major flaws of last year’s marijuana decriminalization bill was that it failed to address drug paraphernalia. For the past six months possessing less than 10 grams of pot in Maryland has been punishable only by a civil citation. These citations are not available for public inspection and are not entered into an online database. On the other hand possessing marijuana paraphernalia remains a crime punishable by a $500 fine for a first offense, and up to two years in jail for any subsequent conviction. These paraphernalia citations carry the risk of a permanent conviction, are available for public inspection, and are listed on the judiciary case search. The dichotomy between these two laws is alarming, especially considering the broad definition of drug paraphernalia. Section 5-619 of the controlled dangerous substance statute basically gives police officers full discretion to determine what should be considered paraphernalia, and there are few legitimate legal defenses to challenge the this determination. Basically any object that is used in conjunction with the marijuana can be considered paraphernalia. This includes not only pipes and rolling papers, but also plastic baggies and containers.
The road to marijuana legalization did not come easy for Colorado and Washington State. Both endured negative publicity from the national media and propaganda campaigns from various lobbyist groups (alcohol being a major one). And even in the face of increased tax revenues and dropping crime rates, and lower teenage usage rates, these states continue to deal with uncertainly regarding federal drug laws. The current administration and justice department still have not taken a truly definitive stance on state marijuana laws going forward, which creates an unsettling environment where state and federal laws are completely contradictory. But in spite of theses challenges, two new jurisdictions have recently entered the legal marijuana fray. A week ago pot officially became legal in Alaska, and last Thursday Washington D.C. took the plunge as well. Legalized marijuana in Alaska will probably take a similar path to that of Colorado and Washington State, albeit few years behind. There are no immediate plans for dispensaries to open in the 49th state, so you won’t be able to legally buy or sell pot there at least a year. On the other hand, D.C.’s new marijuana law is not like Colorado and Washington’s, and the city now faces unique challenges that could make last Thursday’s celebration short lived.
A school offering a marijuana business class will hardly make headlines in a few years when pot is legalized for recreational use. Considering the market potential for legal marijuana, as much as 10 billion dollars per year by some estimates, it would be a disservice for an academic institution to not offer this type of class in the future. But we’re not quite there yet, and therefore it still comes as a surprise to see a class titled “Entrepreneurial Opportunities in Emerging Markets: Marijuana Legalization” to show up in a course catalog at a local public college. The school is Anne Arundel Community College, and the three-credit class is already in the second week of meeting. It’s a small class, limited to 25 students, but enrollment is full, and you can expect few empty seats when the class meets each Monday and Wednesday afternoon of the spring term. A glance at the course summary reveals topics such as the tax impact and the legal and regulatory challenges facing the industry. But as a business course, the main focus is simply how to get a piece of the 10 billion dollar marijuana pie.
The 2015 legislative session is officially underway, which means our focus will shift slightly from reporting Blog worthy criminal incidents to updating readers with the progress of new potential criminal laws. Last year was quite eventful from a criminal law standpoint; simple possession of marijuana was transformed from an offense punishable by 90 days in jail to a civil infraction punishable by a fine of a hundred bucks, and the medical marijuana program was given legs after a year in the doldrums. While medical marijuana is still a year or so away from being operational, the decriminalization law has already impacted hundreds of would be defendants, cops, state’s attorneys, and of course criminal defense lawyers. It is difficult to imagine that this year’s session will produce the same type of splash, but advocates of legalized recreational marijuana would certainly beg to differ.
Over the last few decades mail became one of the preferred methods of transporting marijuana across state lines. The carrier was irrelevant, as dealers and smokers would typically use FedEx, UPS, and the postal service to transport their stash across the country. Law enforcement eventually caught on, and began targeting packages at sorting facilities of all the major mail carriers. The targeted packages usually met a certain criteria; they were often from states such as California, Oregon, and Colorado, where marijuana was plentiful and relatively cheap. The packages also fit size and weight criteria, and had common markings and similar types of intended addresses. Upon identifying suspicious packages, law enforcement would order a K9 sniff. If law enforcement officers confirmed their suspicions, they would react in a variety of different ways depending on the agency, suspect, and the amount of pot at issue.