Maryland Legislature

Published on: December 7, 2016

Maryland Court To Decide Key Marijuana Search Issue

As states move toward placing marijuana policy in the hands of voters and for the most part legalizing it, Maryland is still stuck in the dark ages where pot ties up court resources, and has lawmakers and lawyers up in arms. Medical marijuana has already invaded the civil courts, as multiple lawsuits over the grower licensing system are pending. And while we are seeing a significantly lower amount of marijuana cases prosecuted since possession under 10 grams became decriminalized, pot is still a common cause of litigation in criminal courts. Not only are there still numerous new cases filed each year for criminal possession, manufacturing and distribution of marijuana, but there are also a host of new legal issues involving law enforcement search and seizures.

When the legislature decriminalized simple possession it immediately created a grey area for probable cause searches under the Fourth Amendment. Normally a police officer is justified to search a person and his or her automobile if the officer gathers information that objectively leads to the conclusion that that a crime has likely occurred. This, save for a few minor twists, is probable cause in a nutshell. The Maryland decriminalization law left a major ambiguity in whether the discovery of a non-criminal amount of marijuana would justify a broader search of the suspect and his or her car. These broader searches usually turn up other evidence such as narcotics and firearms, which is why the issue is far reaching. We’re not just dealing with pot cases here. In fact, the Court of Appeals in Annapolis recently heard oral arguments on three cases where officers conducted Fourth Amendment searches based solely on the odor of marijuana. The trial courts and the Special Court of Appeals all ruled in favor of the prosecution that the searches were valid, and now the highest court will issue their opinion in the next few weeks.

Defense lawyers and civil rights advocates have argued that smelling burnt or raw pot, or finding less than 10 grams of it without more does not rise to the level of evidence that a crime has occurred, and would not justify a broader search. Rather, an officer who smells or recovers a non-criminal amount of pot must issue a civil citation, confiscate the weed and move on. The government has argued that no amount of marijuana is legal in Maryland, and therefore police are authorized to search for and seize anything unlawful. The government has emphasized that a civil offense is still an offense, and the fine for simple possession is used to punish unlawful behavior. An assistant attorney general also argued that presence of the drug is enough evidence to provide officers with probable cause that more will be found, an argument does not seem to have any sort of factual basis.

Continue reading →

Published on: November 16, 2016

State Docs Not Jumping Aboard Medical Marijuana

By Benjamin Herbst

Medical marijuana has had a tough time catching on in Maryland as roadblocks have sprung up each step of the way. First the legislature failed to craft a legitimate medical cannabis program, and a year later when a real program arrived they failed to adequately fund a commission to draft its rules. Then the underfunded and inexperienced commission drastically miscalculated the number of expected grower and distributor applications, which lead to massive delays in the awarding of licenses. When the licenses were finally awarded three potential growers sued for unjust denial of their applications, and their cases are pending in court. Many of these roadblocks were predictable, and could have been avoided with greater cooperation among politicians and more resources dedicated to the launching the program. However the latest roadblock was not expected and could end up disrupting the medical marijuana program if and when it finally gets rolling.

A public records request revealed that only 172 Maryland doctors have signed up to potentially prescribe medical marijuana, which translates to about 1 percent of the 16,000 docs practicing medicine in the state. State officials are concerned that the lack of prescribing doctors could cause a serious bottleneck in the process of getting medical pot to the patient. We will certainly have enough growers, distributors and buyers, but the chain is not complete without the doctors writing the scripts. Potential patients could be forced to wait weeks or even months to see a doctor, and the huge numbers game could cause these doctors to fly through screenings at a pace similar to the pill mills that lawmakers and medical boards are trying to eliminate. Officials at MedChi fear that the end result will be the medical marijuana program becoming a façade for recreational use, as doctors with long lines of patients will be ill prepared to distinguish those with a medical need from those who simply want to enjoy high quality pot.

Once the program gets going there will likely be more doctors jumping on board. The free market will work itself out and doctors will eventually see the positives in running a lucrative and legitimate business that does not involve being on call at all hours of the night. An influx of new doctors who are more open to alternative types of medicine will also be more likely to stand behind the benefits of marijuana and less hesitant to prescribe it. A lack of doctors is not likely to be the downfall of the state’s already troubled medical marijuana program, as legalization will eventually be the kill shot for medical pot. Patients who benefit from ingesting cannabis may have to jump through hoops and wait in long lines for a year or two in order to legally obtain relief, but the day is coming when a trip to the dispensary and a valid ID is all it will take for access to all forms of cannabis. The federal government may be slow to change its designation of marijuana as a schedule 1 controlled substance, but the new administration will let the states decide their own pot policies. The people have spoken in influential states such as California and Massachusetts and it’s only a matter of time before the issue goes to a vote in Maryland.

Continue reading →

Published on: November 10, 2016

Changes Ahead For Unjust Maryland Bail System

By Benjamin Herbst

Despite years of scrutiny and two legislative task force inquiries the Maryland cash bail system has remained untouched. Thousands of defendants sit in jails statewide for months on end awaiting trial simply because they cannot afford to post bail. Many end up being released after their cases are dismissed, and others remain until accepting a guilty plea to time served or probation. In some cases the bails set by court commissioners or judges are exorbitantly high and in other cases the defendants simply cannot scrape together any amount of cash or collateral for a bail bondsman. The bail bond industry has been raking in profits for decades by preying off the desperate desire of defendants to get out of jail, and the industry’s hefty contributions to lawmakers have largely shielded it from reproach. But within the last month two influential members of the state’s legal community have spoken out against the current cash bail system, and their words have already translated to real change in the district and circuit criminal courts.

In mid October the newly elected Attorney General sent a memo to five state lawmakers declaring that judges and court commissioners must consider the defendant’s finances when determining an appropriate bail. The memo goes on to say that if bail is too high for the defendant the Court of Appeals in Annapolis would likely find it unlawful, and further states that an amount too high for the defendant to post would be excessive and a violation of Eighth Amendment of the United States Constitution. While the Attorney General’s memo was advisory and did not establish any type of rule of law, the Chief Judge of the District Court of Maryland took notice and sent a memo of his own. This memo instructs other District Court judges to treat monetary bail as a means to insure the defendant’s return to court, and not as a means to assure the public safety. Defense attorneys have been making this argument for years to court commissioners and judges across the state with little success. Too often our state judges use high bail amounts as a means to keep a defendant in custody pending his or her trial. These excessive bails are punitive and unconstitutional, but have become status quo in Maryland courts.

Excessive bails are set by judges and court commissioners all over the state, but this epidemic is particularly out of control in Baltimore City and to a lesser extent Baltimore County. Defendants arrested on drug charges such as possession with intent to distribute are often held on six-figure bail amounts, and end up paying thousands to bail bondsmen who lure customers with 1% down payment plans. It is not only drug charges that result in outrageous bail amounts, but also gun charges and alleged violent offenses where there is little objective evidence of guilt. The roots of the problem are the judges and commissioners that have been approaching bail hearings entirely wrong for years; they read the charges and set a bail amount solely on the alleged facts in the statement of probable cause. It becomes lost that defendants are to be presumed innocent at every step of the judicial process, including at a bail hearing. But this finally appears to be changing as the Chief Judge’s memorandum is starting to show its influence in court. Defendants that do not pose a threat to the community and are not a legitimate flight risk are being released on their own recognizance. This falls in line with the least onerous means to assure the return of the defendant to court. Some defendants who are determined to be serious dangers to the community are being held in custody, but the judges are now putting their findings on the record, as instructed by the Chief Judge.

Continue reading →

Published on: October 17, 2016

Maryland Sporting Slowest Medical Marijuana Program In U.S.

By Benjamin Herbst

Just shy of ten years ago the Maryland legislature voted to legalize statewide casino gambling. The governor signed the gambling bill into law shortly thereafter, and three years later the first casino opened its doors for business in Cecil County. The five operational casinos in Maryland have generated over a billion dollars in revenue since 2010, and come December this number will increase dramatically with the opening of the massive MGM National Harbor Casino in Prince George’s County. Most would consider the casino program a success as thousands of jobs have been created to go along with the millions in tax revenue. While it took decades to pass legalized gambling, the process of turning a signed bill into an open casino progressed relatively smoothly, and was night and day compared to the state medical marijuana program’s progression from bill to pot shop.

The Blog has been extremely critical of the state medical marijuana commission moving at a snail’s pace to award licenses to grow and sell medical pot, but some of the blame should also fall on lawmakers. In 2007 when gambling became legal the legislature added four full-time members to the Maryland Lottery Commission to oversee the process of awarding casino licenses. The members were given a 2.3 million dollar budget, and were able to use this money to hire industry experts to help hammer out the licensing process. In contrast, the medical marijuana commission consisted of volunteer members and a $125,000 yearly budget. The committee members were not experts, and had no firsthand knowledge of how to create a medical marijuana program. There were doctors, lawyers and police officers but nobody even resembling a marijuana producer or distributor. Their paltry budget made it nearly impossible to hire experts from the private sector or from other states with existing programs, and the result is a medical pot program that has taken longer to get off the ground than the 25 other programs in the country.

The failure of lawmakers to appropriately equip the current commission stems from their creation of the bust that was the 2013 medical marijuana law. Lawmakers created the commission to oversee the original 2013 medical pot law, which only permitted the program to function through public and private academic institutions. The 2013 law focused on studying the effects of medical marijuana through the legal treatment of patients with cannabis, and relied on universities risking loss of their federal funding to research a theory that has already been proven (medical marijuana works). There were predictably no takers and a year later lawmakers created a legitimate program that would be run by private businesses, thus shifting the focus of the program from research to profit. The problem was that existing medical marijuana commission did not receive the complete overhaul it needed to account for this 180-degree change. Regulating numerous businesses that stand to make millions is an entire different animal than regulating a few universities that aren’t in it for the money.

Continue reading →

Published on: September 22, 2016

Marijuana Grower Files Lawsuit Against Maryland

By Benjamin Herbst

Even before the medical marijuana commission began the selection process for awarding grower and distributor licenses it was hypothesized that some losing applicants would sue over the unfair process. According to newly drafted regulations, hundreds of qualified applicants ready and able to provide patients with medical cannabis would never get their chance. By drastically limiting the number of licenses, the commission thought it would put the state in a better position to regulate the program, but all it really did was ensure that numerous highly qualified candidates would be shutout. And with tens of millions of dollars at stake it was extremely likely that some of these qualified applicants would not just accept losing, but rather take their fight to the courts. Well, this week the hypothesis rang true as a losing company that planned to grow legal pot in Washington County filed a lawsuit against the Medical Marijuana Commission and the Department of Health and Mental Hygiene. The company filed suit in the Circuit Court for Baltimore City, and served it on the Attorney General’s Office soon thereafter.

The plaintiff is the same company that we wrote about in our last Blog post, which was originally awarded a license to grow pot but then stripped of it in favor of a Prince George’s County grower just 48 hours later in the interest of “geographical diversity”. If lawsuits against the commission and the DHMH were highly probable at outset of this flawed process, the commissioner’s suspicious change of heart in July made them a mathematical certainty. There was simply no way that the two companies who lost their golden tickets in the eleventh hour would stand down and not take the state to court. In addition to filing suit, the aforementioned company already began to wage a public battle against the process with lawyers and a well known ex NFL player going on camera to bash the unfair process. The former Raven offensive tackle turned medical cannabis investor has been outspoken about the NFL’s archaic policies toward marijuana for a few years, and is well versed relaying his opinions to the media.

The other company that was shut out after the commission’s flip flop has yet to file their lawsuit, though at this point it seems like a foregone conclusion. These lawsuits will probably delay the entire medical marijuana program yet again, but don’t blame the profit seeking growers and their lawyers. Lawmakers took years to pass legitimate medical cannabis legislation, and the commission had months to decide on regulations for the program. Both had dozens of already existing state programs to look at for guidance, but they valued creating a uniquely Maryland program over mimicking one of the many already successful platforms. The patients in need of alternative treatments to narcotic drugs and other prescription medications are the one’s who have suffered, and now it looks as if the relief is even further away. The company who filed the lawsuit has stated publicly that that it does not wish for its litigation to hold up the program’s progress, though delays seems inescapable. Latest predictions have medical marijuana being available in the summer of 2017 but timeliness is not something we have come to expect.

Continue reading →

Published on: September 19, 2016

More Issues For Medical Marijuana

By Benjamin Herbst

First, state politicians passed a completely ineffective medical marijuana law that unsurprisingly had zero takers. Then a year later when a legitimate medical marijuana program became state law, the commission in charge of writing the policy dragged its feet for months. After going well beyond the allotted time frame for which to craft the regulations of the program, the newly created commission began to accept applications. But as had been the case for the last three years, the commission delayed the process yet again by drastically underestimating the length of time it would take to review the applications. Finally, after two years the commission began awarding licenses to legally grow pot to the 15 (a completely arbitrary number) most qualified candidates. With the licenses issued it was finally time to get to work and plant the first seeds that would ultimately be used to legally treat patients with cannabis for the first time in Maryland history. This was exciting stuff indeed, but lest the reader think that this story has a happy ending we would remind you that nothing related to medical marijuana has come easy in our great state, and awarding the licenses now seems like the beginning of a long battle rather than the end of one.

The medical marijuana commission has taken a ton of heat for not awarding grow licenses to minority owned candidates. This issue has grabbed most of the headlines and has minority leaders up in arms about the process, but it is not the commission’s only highly criticized move of the summer. According to public records the five-member commission chose to award licenses to the top 15 rated candidates, as rated by an independent application reviewer, toward the end of July. Then a week later the members went back on their decision and dropped the last two to make the cut in favor of lower ranked candidates. Apparently one commissioner, a Prince George’s County law enforcement officer, persuaded the other four members to award a license to a PG County applicant instead of a Washington County operation that was ranked higher and had already been selected. A Frederick County applicant was also dropped in favor of a lower ranked Worcester County operation. The dropped applicants were outraged when they caught wind of this change of heart, and rightly so.

While state regulators included geographical diversity as a key factor in awarding the licenses it was never intended to shut out otherwise qualified candidates. But this is exactly what happened when less qualified applicants received licenses solely based on their location. The point of hiring an independent application evaluator was to take any sort of subjectivity and bias out of the process. But it’s easy to see that objectivity goes out the window when a commissioner who has spent his career working in Prince George’s County convinces the other members to select a less qualified candidate from his home county. Even if there were only good intentions the sudden change of heart gives off a strong feeling of impropriety, which is something the commission can ill afford at this time.

Continue reading →

Published on: May 25, 2016

More Delays For Medical Marijuana

By Benjamin Herbst

Maryland is quickly approaching the notorious distinction of slowest state to implement legalized medical marijuana, and after two years we are still nowhere close seeing the first state dispensaries open their doors. The lawmakers who supported medical marijuana are frustrated, the investment groups who have millions tied up are frustrated, and most importantly the patients who need treatment are frustrated. And to make matters worse, the commission that was established to oversee the program has offered little public explanation for the delays. Back in December we published an article about the commission being overwhelmed by the number of grower and distributor applications, which doomed the January 2016 target date for awarding licenses. The commission, which went without a leader for four months after the executive director resigned in December, did not offer a revised date last winter and they are not offering one now. The only thing we do know is that the firm who is evaluating and ranking the grower and distributor licenses has been retained for an extra four months, and will be paid more than $2 million when it’s all said and done. The firm is supposed to finish ranking the estimated 900 applications by this July, but then the commission must still debate over who will actually receive the licenses.

With so much riding on the application rankings and the ultimate decisions by the commission, there is bound to be heated disputes over the process. The experts hired to review the applications have been kept secret, and have signed affidavits denying any relation to the prospective growers and distributors whose names have been redacted from the applications. But despite these precautions there have still been allegations of secret meetings between state officials and applicants, which has prompted other applicants to call for the process to be more transparent. There are fears that those investors whose applications are denied will file suit and challenge the commission’s decisions in court, thus further delaying the process. With all the money at stake and the mounting frustration it seems like multiple lawsuits over the selection process are inevitable.

In addition to the selection process being under scrutiny, there was also a recent controversial decision by the commission to limit the number of processor applications to 15. There was already a cap of 15 on grower licenses, but there was no such limitation on who could be licensed to process the plant material into other forms such as edibles and oils. This decision was apparently reached with little debate, and once again there was no detailed explanation made available to the public. Now some growers may face the additional expense of outsourcing for their processing needs, and the product may be harder to track after an additional party is involved in production.

Continue reading →

Published on: April 24, 2016

Tougher Alcohol Laws Coming This Fall

By Benjamin Herbst

Two years ago Maryland lawmakers devoted much of their attention toward marijuana policy, and the media followed suit with daily stories updating the progress of decriminalization and medical pot. Last year was considerably quieter with respect to criminal legislation, but there were still significant changes made to the criminal expungement and shielding process, as well as to drug paraphernalia laws. This year the Justice Reinvestment Act grabbed most of the criminal legislation headlines, and it will continue to do so as it is implemented. Despite all the headlines surrounding the Act, it was not the only significant criminal bill to pass the General Assembly. Lawmakers also took a concerted effort to strengthen some of the state alcohol laws including passing a highly publicized DUI bill named after a Montgomery County police officer killed by a drunk driver. This law will lengthen driver license suspensions for DUI and DWI offenders, and also make engine interlock devices mandatory in certain cases. The legislature did not just target drunk driving, but went after once of its causes as well.

It is actually much easier for teenagers to obtain marijuana and illegal drugs than it is to obtain alcohol. Alcohol is larger and harder to conceal, and because it’s legal it’s actually regulated more tightly. There is simply no black market to buy and sell liquor, so kids often have trouble obtaining it. When they do it is usually from an older friend or relative, or in some cases from a parent. Lawmakers and lobbyists believe that if you discourage an adult from furnishing alcohol to a minor you can as a result cut down on the number of teen DUI cases. While it is currently illegal for an adult to provide booze to a teenager, the penalties are far from drastic; there is a maximum $2,500 fine for a first offense and a $5,000 fine for a second or subsequent offense. This means consequences are not often on the mind of an adult, which is something that the legislature feels is long overdue for a change.

Senate Bill 564 easily passed in both chambers and is a sure bet to become law in October. It increases the maximum penalty for providing alcohol to underage drinkers under 10-121 of the criminal code from a fine to a significant jail sentence of a year for a first offender, and two years for repeat offenders. When the bill becomes law it will likely create news headlines, and the state and local government will have little trouble getting the message out. This specific law does not apply to a licensee, or an employee of a licensee such as a bartender, as there are other regulations for bars, restaurants and liquor stores. The law applies to anyone else caught knowingly and willfully providing booze to a minor. The words knowingly and willfully are elements that the state would be required to prove in any prosecution for this offense, so it is not a strict liability crime, but come October it will be buyer (or giver) beware when it comes to alcohol.

Continue reading →

Published on: April 11, 2016

Lawmakers Look To Expand Domestic Violence Protection

By Benjamin Herbst

Today marks the final day of the 2016 General Assembly’s legislative session, and there is still much left to be decided on the criminal law front. We wrote extensively about the Justice Reinvestment Act, which has grabbed headlines for much of the last month. But there are other criminal law bills that will likely go into effect this fall, and these bills deserve some attention as well. One such bill was a measure originally taken by the House that looked to expand protections for victims of domestic violence. Currently a victim of domestic violence may petition the court for a protective order if he or she alleges that some form of abuse has taken place. Under the Maryland statute, abuse is now defined as an act that causes bodily injury or places the victim in fear of imminent bodily harm. Abuse also includes the crimes of rape, false imprisonment and stalking. Lawmakers from the House sought to expand the definition of abuse by adding harassment and malicious destruction of property but this measure failed to gain traction and was shut down after an unfavorable report by the judiciary. But now the bill has been revived in the form of an amendment to another Senate domestic violence bill, and it appears to be gaining steam.

Opponents of the amendment take issue with harassment being defined as a form of abuse. This is likely due to the broad definition of harassment, which is defined as maliciously engaging in a course conduct that alarms or seriously annoys another. No physical harm is necessary, and there is no exact definition of what a course of conduct actually means. This is a crime that while serious, is often the subject of false accusations because little objective proof is required to bring the charges; the word of the alleged victim is usually enough it initiate a case. While false accusations of harassment rarely stand up in court, they can have drastic effects on the accused if a temporary protective order is sought. Temporary protective orders can have immediate collateral consequences that can occur before the accused has his or her day in court, and this is the main reason while some lawmakers are hesitant to expand the definition of abuse to include harassment. But it appears that those in favor of expanding the abuse definition will be on the winning side of this debate.

The Blog will provide a final summary of the criminal law bills that will be heading to the governor’s desk this summer, and we will post a follow up article after all the dust settles. For now though, we expect that in October smoking marijuana in public will be a crime once again, and minimum mandatory prison sentences for drug felonies will come only at the discretion of the trial judge. Violation of probation procedures are also headed for drastic changes that will benefit defendants, and many prison inmates are looking at shorter sentences. As always, feel free to contact The Herbst Firm with any questions about these legal issues, as well as if you or a loved one has a criminal matter that calls for experienced representation. Benjamin Herbst handles all types of domestic violence cases including assault, harassment, and stalking, and is available at 410-207-2598.

Continue reading →

Published on: April 4, 2016

Justice Reinvestment Act Advancing In Annapolis

By Benjamin Herbst

The Justice Reinvestment Act is advancing in the House after the Judiciary Committee approved it by a wide margin last week. The bill is heading toward a full House vote, but lawmakers will likely be required to compromise on a few key issues before the bill ultimately gains approval from the General Assembly. The Senate and House versions differ slightly, and these differences must be hammered out before the bill is presented to the governor. The House version includes a racketeering provision designed to target gang related drug dealers, eliminates jail sentences for driving on a suspended license, and unlike the Senate version does not attempt to lengthen the maximum sentences for second degree murder and kidnapping. The overall tenor of the bill though is shared by both chambers of the Maryland Legislature; the House and the Senate share a strong desire to reduce the prison population and reinvest savings toward crime prevention through education and treatment. In our last post we outlined one of the four avenues lawmakers will use to achieve their stated goal and in this post we’ll touch on the other three.

Lowering maximum sentences for numerous non-violent offenses as we previously discussed is a step in the right direction, but alone will not reduce the number of prison inmates. To supplement lower maximum sentences the bill also focuses on modifying the parole process, streamlining violation of probation procedures, and eliminating mandatory minimum sentences for many drug violations. When a judge sentences a defendant to state prison time in a case not involving a minimum mandatory sentence he or she will not actually spend the entire sentence in prison. Maryland is a parole state, meaning that after serving a certain amount of the sentence (sometimes as low as 25%) almost all defendants are eligible for release under certain conditions. But the parole process can be defined as arbitrary and haphazard, and many times defendants who are of no danger and have been sufficiently punished remain in prison, while others are released too early. The bill attempts to implement a more refined and logical parole process in an attempt to find an appropriate actual sentence served for each different defendant. Under the Act all defendants will undergo a risk and assessment analysis promptly after sentencing. A larger array of educational and reentry programs will be offered once in custody, and the potential for monthly sentence deductions will be expanded. The goal is to keep offenders in custody for no longer than necessary, and the Act represents a major move toward this goal.

The Act also takes unprecedented measures to streamline procedure of probation violations. Hundreds if not thousands of defendants are sent to prison or back to county jail each year for technical probation violations. These technical violations can include missing and appointment, changing an address without approval, or not completing a drug class. Technical violations do not include new arrests or absconding from probation. Under the bill, defendant can be sentenced up to 15 days for a first technical violation of probation, 30 for a second, and 45 for a third violation. Fourth or non-technical violations may result in the defendant serving to the entire balance of the sentence. A judge may depart from these sentencing guidelines at anytime if he or she makes a finding that the defendant poses a risk to the public, or a victim or witness. If these probation violation changes are implemented both the prison system and the court system would reap the probable benefits of less inmates and lower caseloads.

Continue reading →