Articles Posted in Maryland Legislature

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.

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.

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.

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.