Criminal Defense Lawyer Blog
As close as we are to fully functioning statewide medical marijuana, it still seems at times as if the day may never come. The Governor approved the General Assembly’s medical marijuana proposal almost six months ago, and applications for grower and distributor licenses are on the brink of being processed. But now local politicians are attempting to disrupt the progress of state lawmakers and appointed department of health commission members, while at the same time ignoring the will of a large majority of Maryland citizens. This local power wielding started a couple months ago when a Baltimore County politician proposed increased zoning restrictions on dispensaries and grow houses. The Baltimore County Council passed these regulations earlier this month, but their utility was challenged by the County Executive and state lawmakers from the area. Both described the increased local regulations as unnecessary because of the comprehensive nature of the state regulations, which already address the location of grow houses and dispensaries. While the increased zoning regulations in Baltimore County might be entirely an act of grandstanding for local politicians, at least they will not severely hinder the progress of the state medical marijuana program. The same cannot be said for an Anne Arundel County politician’s proposal.
The Anne Arundel County Executive is set to introduce legislation tonight at a council meeting that would prohibit the sale and production of marijuana anywhere within county lines. This legislation would be a slap in the face to state lawmakers, the governor, and the majority of the people of the state of Maryland who all want a statewide functioning medical marijuana program. The executive’s reasons for moving to ban medical marijuana from Anne Arundel are the same old rhetorical outdated nonsense. He rants about marijuana being a gateway drug, and potentially causing economic stagnation and increased criminal activity. These arguments are tired and ill informed, and none have any relevance to the issue of marijuana for medical use. The executive wants to deny patients the ability to obtain something that has been proven without a doubt to make them feel better because he, and others of his generation and background have a personal vendetta against marijuana and its culture. Thankfully the legislation is likely to fail in the county council, but we will update the Blog when an actual vote occurs.
The Anne Arundel politician also sites the fact that medical marijuana will simply lead to legalized recreational marijuana, and he will not stand for that in “his” county. Again he offers not one logical and factually supported argument of why recreational marijuana would contribute to increased crime or economic stagnation. If the executive is worried about increased criminal activity from legalized drug use it really doesn’t show, as his very own Annapolis is lined with more bars per square mile than almost every other city in Maryland. Alcohol is celebrated and imbedded in the culture of our waterfront capital city (and every other city and town in the country), and yet empirical data shows is causes more death, illness, and violence than all other drugs combined. It’s legal because people enjoy it and it generates billions of dollars in commerce. Why does everything have to be good for you in order to be legal, and since when does the government know what is good for you anyway? One day marijuana will be legal as well for the same reasons, because people enjoy it and want to do it. Yet unlike alcohol it will not bring with it thousands of documented deaths per year, and it will not be a contributing factor to an even greater number of incidents of violence.
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.
Each year hundreds of innocent people are terrorized by law enforcement’s overuse of their SWAT teams to effectuate searches and arrest warrants. These potentially traumatizing incidents are rarely publicized unless things truly go awry. The public never hears about a SWAT team arresting the wrong person, or destroying a bystander’s property in a search, but those who experience this first hand will never forget. There is little or no legal recourse for those who have been unjustly damaged by a SWAT raid, as cops are typically immune if they are acting on a properly executed warrant. Even if the warrant turns out to be unlawful, the mere fact the cops acted on the reasonable belief that it was valid is enough to avoid liability. When law enforcement’s actions are so egregious as to warrant civil or criminal liability justice is often hard to achieve, as it usually comes down to a cop’s word against the claimant’s. And there are few lawyers willing to take on a case against the government with those odds.
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.
It almost seems like a crime in and of itself. A police officer arrests a person for suspicion of committing a drug offense. Then a few hours (hopefully not longer) later upon being released he or she finds out that the police have kept some of their property. Property that is entirely legal on its own. Typically it’s something small like a few bucks or a cell phone. But in some cases it could be thousands of dollars, a car, boat, or even a house. Time and time again the courts have upheld law enforcement’s right to confiscate a suspect’s property. It is widely understood, if not accepted, that a cop can take a person’s otherwise legal property if that officer believes it will be evidence in a criminal prosecution. Unfortunately this is hardly the only justification an officer needs to take a citizen’s stuff. For decades the law of civil forfeiture has driven defendant’s, their families, and criminal defense lawyers crazy. In a nutshell forfeiture gives police the right to confiscate property they believe is being used to further criminal activity. The definition is vague and general, and the standard of proof is low. Forfeiture is easily abused by law enforcement, and when it is, legally thievery is the result.
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.