By David Daggett

I was recently asked what should have been a very simple question regarding marijuana laws in Maryland and I must admit that I was stumped as to the answer. There has been so much marijuana legislation bandied about over the last few legislative sessions that I couldn’t recall what was real and what was a “pipe dream.” Other than the possession of under 10 grams being decriminalized, everything else was somewhat of a haze. As such, I thought I’d take this opportunity to go over the current state of the law regarding marijuana, paraphernalia and its use or possession in public places and vehicles.

Possession of CDS Paraphernalia

CR § 5-619 – According to subsection (c)(1) of § CR 5-619, the prohibition against possessing drug paraphernalia does not apply to that paraphernalia related to the personal use or possession of marijuana. In other words, possessing a pipe, baggie, clip, bong, bowl, water pipe, vapes, rolling papers, blunt, film canister or hookah for personal use/possession of marijuana is not a crime.

According to subsection (d) however, it is still a crime to manufacture, sell, deliver, or possess with intent to manufacture, sell or deliver marijuana paraphernalia with the knowledge that the paraphernalia will be used to ingest or inhale or otherwise introduce into the human body a controlled dangerous substance. While a first offense is a $500 fine, each subsequent violation carries two years and/or $2,000. That penalty jumps significantly if the person selling or distributing the paraphernalia is at least 18 years old and delivers to a minor who is at least three years younger than the person.

Possession of Marijuana

CR § 5-601 – No matter how it is spun, marijuana – and its active ingredient, tetrahydrocannabinol – are still Schedule I controlled dangerous substances and as such, are still contraband and subject to seizure. The possession of 10 grams or more for personal use is a misdemeanor and subject to imprisonment not exceeding 1 year or a $1,000 fine, or both. The next time I hear of a defendant getting 12 months for simple possession will be the first time. Manufacturing, distributing or possessing with the intent to distribute marijuana is still a felony…at least at this time.

Possession of Less Than 10 Grams of Marijuana

CR § 5-601.1 – The possession of less than 10 grams of marijuana is a civil offense, with a first finding of guilt subjecting the possessor to a $100 fine. A second offense may result in a $250 fine and a third or subsequent offense is punishable by up to a $500 fine.

The provisions making possession of less than 10 grams of marijuana a civil offense do not affect the laws relating to operating a vehicle or vessel while under the influence of or impaired by a controlled dangerous substance. See subsection (d) of CR § 5-601.1.

Medical Marijuana

Currently, there is no legal medical cannabis available to patients in Maryland. While growers, processors and dispensaries have been applying in droves to become licensed, no actual final licenses to grow, process or dispense medical cannabis have been issued. The Maryland Medical Cannabis Commission has announced the names of 102 dispensary entities who have been awarded license pre-approvals from a total of 811 applications submitted. My condolences to those 709 rejected applicants, who now must go out and get a real job. In addition, written certifications for medical cannabis from physicians are not yet valid in the State of Maryland. No patient identification cards are available. The only legal and valid medical marijuana ID cards (if it gets to that point) will be issued by the Commission. These cards will only be available through the Commission’ patient registry, which is not yet open for business.

But in the famous words of Johnny Cash, “I hear that train a-coming. It’s rollin’ round the bend.”

So, while Maryland does not currently recognize medical marijuana, CR §5-601(c)(3) is the subsection of Maryland law that currently provides the closest approximation of a medical marijuana defense. To do so the defendant must provide evidence of a “debilitating medical condition” that has been diagnosed by a physician. In addition, they must show that the medical condition is resistant to conventional medicine and that marijuana is likely to provide relief from said condition. The defendant must also notify the State’s Attorney of their intent to assert this defense. If the Court determines that there is proper evidence of medical necessity, then the Court shall dismiss the charge.

It should be noted that this defense may not be used if the defendant was using the marijuana in a public place or if in possession of greater than 1 ounce. This defense does also not work in a DWI case.

Smoking Marijuana in a Public Place

CR § 5-601(c)(4) – The smoking of marijuana in a public place is a civil offense punishable by a fine not exceeding $500. It is interesting that the statute includes only the word “smoking” and not “ingesting”, “inhaling”, or “otherwise introducing into the human body.” That leaves the door open for consuming all kinds of pot-infused products in public.

Driving While Impaired by a Controlled Dangerous Substance

TR § 21-902(d) – As marijuana is a Schedule I drug and cannot be dispensed by prescription, the correct charge for a person driving while impaired by marijuana is TR §21-902(d). This is true even if the person is impaired by a combination of marijuana and alcohol. If you have evidence that the driver is impaired by marijuana, even if there is evidence of both alcohol and marijuana in their system, the (d) charge – which carries a one year penalty – is still the proper charge. If not, all a person stoned on marijuana would have to do is drink two beers just before driving, get up to a 0.04 BAC, becoming even more impaired, and then argue that it is a “combination” of the two, thereby subject to only a 60 day penalty. That’s nonsensical. Of course, if their BAC is above 0.08, that is per se under the influence of alcohol, which carries the same one year penalty as does the (d) charge. This same logic would control in a DWI Homicide or Life-Threatening Injury case.

The same is true no matter what the controlled dangerous substance, so long as the person is not entitled to use the controlled dangerous substance (by prescription.) Heroin, cocaine, marijuana and a number of other controlled substances cannot be used under any circumstance, thus making a driver impaired by those substances subject to the CDS (d) charge.

The TR §21-902(c) charge is appropriate if the driver had a valid prescription to use the drug/s but became impaired (either through use of the drug or combination of drugs and alcohol) and as a result, could not drive the vehicle safely. It is up to the defense to assert that the person was unaware that the usage would make him incapable of safely driving the vehicle.

If the prescription had expired and the person was no longer in need of the medication, the prescription was forged, or another person was taking the medication or had purchased the medication illegally, the correct charge is the (d) charge, whether or not alcohol played a part in causing the impairment. The pertinent language in subsection (d) is ‘if the person is not entitled to use the controlled dangerous substance under the laws of this State.”

Consumption in a Motor Vehicle

CR § 10-125 – Open Container in Passenger Vehicle
TR § 21-903 – Consumption of Alcoholic Beverages While Driving on Highway

CR § 10-125 authorizes a $25 fine for an occupant of a motor vehicle who possesses an open container or consumes an alcoholic beverage in the passenger compartment of a motor vehicle on a highway. There are exceptions for a passenger in a bus, taxi, limousine or the living quarters of a motor home or RV.

TR § 21-903 authorizes a $530 fine and 1 point for a driver consuming an alcoholic beverage in a passenger area of a motor vehicle on a highway. It could be just me, but I’m having a hard time imagining a situation in which a driver of a motor vehicle can be anywhere but in the passenger area of a motor vehicle.

Both of these statutes have been around for a while and are generally well known by the general public. Unfortunately, the same rules do not apply to the use or consumption of marijuana in a motor vehicle, despite the best efforts of some Maryland prosecutors and legislators during the 2016 legislative session. So while there is no specific prohibition against smoking marijuana in a vehicle, marijuana is still considered contraband and the Court of Special Appeals has determined that the odor of marijuana is still probable cause to search a vehicle. See Bowling v. State, 227 Md. App. 440 (2016) and the April, 2016 Blog.

If a law enforcement officer were to observe a driver or passenger in a vehicle smoking marijuana, that alone should probably be enough to justify stopping and searching the vehicle. I used the word “smoking,” because, in practicality, it is much easier to observe the smoking of marijuana in a vehicle as opposed to “consuming” marijuana infused edibles, liquids or concentrates. Speaking of which…

Concentrates of Marijuana

Unfortunately, the decriminalization of under 10 grams does not seem to exempt concentrates of marijuana. Falling under the umbrella of cannabis concentrates are any products produced through an extraction process. Using solvents such as butane, CO2, water and ethanol, raw THC is extracted from the plants, producing products that contain up to 90% THC. THC being the active ingredient of the marijuana plant. Traditional marijuana typically possesses from 5% – 15% THC.

Maryland’s 10 gram cut-off does not seem to differentiate between the traditional green, leafy, plant matter everyone recognizes and the highly potent THC levels present in hash, hash oil, kief, wax, shatter and products with other catchy names. The problem is that 9.9 grams of marijuana concentrate goes a lot farther than does 9.9 grams of traditional marijuana. Marijuana and Tetrahydrocannabinol (THC) are both listed separately under Schedule I, subsection (d) (Hallucinogens) so arguments have been made that, when recovering under 10 grams of concentrates, you might be able to charge as possession of tetrahydrocannabinol. The problem is the definition of marijuana found in CR § 5-101(r):

Marijuana means: all parts of any plant of the genus Cannabis, whether or not the plant is growing; the seeds of the plant, the resin extracted from the plant; and each compound, manufactured product, salt, derivative, mixture, or preparation of the plant, its seeds, or its resins.

Marijuana does not include: the mature stalks of the plant; fiber produced from the mature stalks; oil or cake made from the seeds of the plant; and except for resin, any other compound, manufactured product, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake; or the sterilized seed of the plant that is incapable of germination.

As most concentrates are produced from resin, it would appear that any compound, manufactured product or preparation of resin would be included in the definition of marijuana, and thus subject to the 10 gram limit. Without a clearer definition from the legislature, it is hard to imagine our appellate courts buying into the tetrahydrocannabinol/concentrates argument, unless you can show an intent to distribute. But I’ve been wrong before.

Conclusion

There you have it. Maryland’s marijuana laws in a very small nutshell, at least as they exist in December of 2016. Stay tuned, because things are liable to change come October 2017.

AS ALWAYS, PLEASE CONSULT WITH YOUR LOCAL STATE’S ATTORNEY’S OFFICE WITH ANY SPECIFIC QUESTIONS REGARDING THE SUBJECT MATTER PRESENTED HEREIN.

Have a safe and Merry Christmas, a happy holiday season and a safe and productive new year. Be careful out there!

Finally, special congratulations go out to the 2016 Walkersville High School football team for capping off a perfect 14 – 0 season with a victory in the 2A Championship game at Navy – Marine Corp Stadium.