Articles Posted in Marijuana

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marijuana-1281540_1280-300x225The last few months have been a relatively quiet time regarding medical marijuana news stories in Maryland.  The program seems to be running smoothly and there have been no major incidents at state licensed grow houses and dispensaries such as break-ins or missing product.  The baseless concerns about the possibility of kids and vagabonds hanging out in dispensary parking lots has obviously not come to fruition, and general crime involving medical marijuana has been pretty much nonexistent.  Wait times at dispensaries has been manageable and the supply chain of flower is steady.  There are still some gripes about the inexplicable absence of edibles and other forms of the medicine, but overall the program’s first year is going well.

No news is good news for the (still) controversial medical marijuana program, so when you see the words medical marijuana in the Sun or the Post these days it’s likely to report a problem.  There appears to be a pretty big problem for an Anne Arundel County grower that was one of the first to open for business in Maryland.  Three employees of this particular grow house apparently sent sworn statements to the General Assembly, which accuse the grower of using illegal pesticides on their product in order to eliminate mold and pests. All three of the former employees were at the company last summer when they were allegedly told to spray at least one infested crop with pesticides that often were given code names by supervisors.  This practice apparently continued for months until the employees took their concerns to the in-house compliance officer and subsequently left their jobs.  Two of the three left back in April, while the third stayed on until June, all the while allegedly spraying the code named pesticides whenever told.

The company has categorically denied the use of pesticides, which were all illegal when the three employees said they were used.  A recent tweak in the law now allows the temporary use of minimum risk pesticides, but this tweak is irrelevant to the claims of foul play by the employees.  At least one dispensary from Queen Anne’s County is not buying the grow house’s denial, as their patients reportedly complained of burning eyes and throats after using their products.  Owners of this dispensary have already stopped purchasing from the Anne Arundel grower and others may join in the future.  The scandalous nature of this story is enhanced by the fact that one of the co-owners of the grow house is a prominent supporter of the governor, and even served on his transition team.  This owner was allegedly informed of the pesticide use at two meetings back in April, but he has not commented on the allegations.

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prison-300x201The national prison population continues to decline, and for the first time in almost fifteen years the total number of inmates dipped below 1.5 million.  Last year Maryland lead the entire nation with a dramatic 10 percent reduction in prisoners, which brought the state inmate population down almost 2 thousand to a total of around 18 thousand.  While the simplest explanation for the decline is the passage of the Justice Reinvestment Act, a closer look reveals a variety of factors at play.

The Justice Reinvestment Act or JRA was a groundbreaking and massive piece of legislation that sought to reduce money and manpower dedicated to jailing defendants, and to divert these resources to treating and rehabilitating convicted defendants.  The JRA eliminated harsh mandatory sentences for repeat drug offenders convicted of non-violent offenses such as possession with intent to distribute narcotics.  The maximum penalty for possession of CDS not marijuana was also lowered to one year, which eliminated the possibility of a prison sentence for drug possession.  While most state correctional inmates are serving the original sentence handed down by the judge, a large portion are doing time for violating their probation. Lawmakers became aware that the sentences handed down for probation violations were getting out of control, and used the JRA to do something about it.

Each day dozens of defendants plea out to large suspended sentences in order to be released from jail, and many end up back in court on a violation.  Some of these violations are extremely minor, and could be avoided by more patient probation officers.  In the past defendants faced years in prison for extremely minor violations, but since the JRA went into effect there are now limits on the sentences handed down for these so called technical violations.  The limits are not binding on the judge, but are certainly persuasive when it comes to sentencing a probationer for a positive drug test, failing to complete treatment or not paying restitution.

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thirteen-bags-of-marijuana-found-in-taxi-cabLegalizing 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.

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weed4-300x194This 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.

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weed4-300x194Maryland already has some of the toughest gun laws in the country, and now the medical marijuana program may contribute to even tighter restrictions on gun ownership in the state. The Attorney General recently went on record stating his office would no longer sit back and let the states implement marijuana policy without the threat of federal government interference. This doesn’t necessarily mean (we hope) that the DEA is plotting to raid recreational and medical marijuana grow houses and dispensaries across the country, but there is certainly some cause for concern. Here in Maryland the medical marijuana program just became functional after years of work by thousands of people who put in time and millions of dollars for the little green plant to become available with a doctor’s approval. The program is not going anywhere, so patients and investors probably need not fear the worst. But there may have to be some sort of effort to keep the feds at bay, and a firearms crackdown could serve this purpose.

In order to appease the justice department, the Maryland State Police may become more involved in policing long standing federal policy that users of illegal drugs are prohibited from purchasing or receiving guns. The gun control act under 18 U.S.C 921 lays out certain prohibitions for receiving a firearm, and a violation of this federal statute could be punishable by up to 10 years in prison and a whopping $250,000 fine. Each person who purchases a firearm in Maryland is required to fill out a federal firearms transaction record, which is monitored by the ATF. One of the questions on the form asks whether the gun purchaser is an unlawful user of marijuana, narcotics, or any other controlled substances, and then in bold type states that “the use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside”. A person who answers yes to this question is unequivocally barred from purchasing a gun, and a Maryland medical marijuana card will do nothing to prevent the feds from filing charges.

It is difficult to enforce the provision of the gun control act that bars illegal drug users from purchasing handguns for obvious reasons. Gun shops are not administering polygraph tests to prospective buyers, and the ATF cannot show up at a recent gun purchaser’s door to administer a drug test. But in Maryland all medical marijuana patients are required to sign a release allowing the state health department to disclose the identity of cardholders to the state police. This would give the state police all the ammunition it needs to assist the feds in enforcing the federal gun control act. The worry is that state and local law enforcement may start arresting medical marijuana patients who purchase guns in order to set an example, and to appease the justice department now that its leader has taken a public stance against weed. For the near future Maryland residents will have to choose between purchasing or receiving a firearm and enrolling in the medical marijuana program. Even card holders who have yet to make their first purchase of medical pot should worry when buying a firearm, as the mere fact of their enrollment in the program could lead to major criminal liability. After all the progress we have made in last decade with respect to marijuana policy, the AG’s recent statements are a major step in the wrong direction. The only real solution is for Congress to get together and scrap federal laws making marijuana a controlled substance. We are confident this will happen eventually, but waiting on lawmakers to right a wrong is a frustrating proposition to say the least.

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weed4-300x194Almost five years ago Maryland residents began hearing talk that a state sponsored medical marijuana program was on the horizon. Despite numerous states already having established successful medical cannabis programs, our elected officials decided to pave their own way and craft a program that was unique to Maryland. These lawmakers eventually passed a severely underwhelming medical cannabis bill that only allowed academic institutions to administer the program. To the surprise of approximately nobody there weren’t any takers of this ridiculous platform requiring universities to dedicate time and money to study something that they already knew the answer (marijuana helps people). After a wasted year lawmakers once again convened and passed laws establishing an actual functioning program that would be run by the private sector and heavily policed by the state. A commission was formed to craft rules and regulations, and eventually to set up procedure for grower and dispensary applications.

On paper everything seemed in place, but actually building the program from the ground up proved more difficult for all parties involved (despite the abundance of information and resources from other states). The commission was underfunded and appointed members lacked expertise and experience, which led to delays and disgruntled applicants. Fast-forward to today and all the medical marijuana investors are still waiting to make their first buck from the program, and most will never recoup their losses. Now though, the day is finally imminent when the first legal marijuana transaction will take place.

The founder of a dispensary in Frederick was recently on record stating he believes his shop will begin selling marijuana by the first week in December, which is hard to believe for those that have been following the progress (or lack thereof) of the program. On the other hand, the day has to come eventually so why not be optimistic about at early holiday season? While the dispensary founder was cautious to put a guarantee on this statement he did add that his staff of ten is ready to serve the patients who are undoubtedly growing impatient. Owners of another dispensary in Salisbury are also confident of a 2017 opening, though this Wicomico County shop is not expecting a grand opening next week.

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marijuana-1281540_1280-300x225Medical marijuana grow facilities across Maryland have been up and running for weeks, yet as of now these growers are still not able to sell their product to the distributors that will ultimately provide to patients. One Anne Arundel County grower has already harvested a batch of pot for testing purposes and is primed to ramp up production when the time comes, but when is the time actually coming? This is a question four years in the making, and each time an answer appears on the horizon new hurdles must be cleared. While it is unlikely that the entire program is in jeopardy, the coming weeks will certainly bring a few sleepless nights for the workers who put in hundreds of hours and the investors who put up millions in order to make medical marijuana a reality here in Maryland.

There are at least three current issues threatening smooth operation of the state’s medical cannabis program, with two being on the state and local level and one on the federal level. The first issue is where to put all the dispensaries. The locations of the grow facilities have been set for months, and are scattered around the state in discrete industrial locations. These facilities are not open to the public, and will do their best to be out of sight and out of mind. The dispensaries are a different story, as they must be in areas that are accessible for the registered patients to pick up their medicine. The problem is that many residents in areas of proposed dispensaries are speaking out as to their disapproval of having medical pot shops in their neighborhoods. While these complaints lack a any sort of factual and rational basis (for example some citizens are concerned that dispensaries will bring crime and loitering riff raff) they are causing a stir that is being heard by state and local politicians. The program cannot function properly without numerous dispensaries to handle the high demand from patients.  A limited amount of dispensaries will severely disrupt the flow of the product from the grower to the patient, and will render the program relatively useless. The growers need the dispensaries as much as the dispensaries need the growers, so the hope is that all the zoning issues are sorted out quickly.

Another state based issue threatening the program is a recent decision by a Baltimore City Circuit Court judge that the case involving the disgruntled growers that were denied licenses will proceed to trial. The state had filed a motion to dismiss, but not surprisingly the judge ruled that it was a case left for the fact finder (judge or jury) to decide. A trial date has not been set, but the medical cannabis program will be allowed to operate while the case is pending.

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weed4-300x194After enduring numerous delays and costly blunders the state medical marijuana program is now in the final stages of preparation. Over the last few months most of the news headlines concerning medical pot were focused on the potential growers. These grow companies raised millions of dollars apiece and their investors included prominent and powerful state residents. Needless to say there was a lot at stake when the commission hired a Towson University group to choose the best fifteen, and it was hardly a surprise when those that didn’t make the cut took their fight to the media and the courts. Despite pending litigation by a couple of disgruntled grow companies the other fifteen pre-approved growers are moving forward with their plans to plant their first seeds. Many of these multimillion-dollar companies are still awaiting final licenses, but there do not appear to be any imminent hurdles on the growing side of the Maryland medical cannabis operation. However, there are some new issues popping up on the dispensary side.

There has not been a great deal of talk about the hundred plus companies that have been preliminarily approved to sell medical marijuana to patients in need. This is partly due to the simple fact of timing; there was no point in dwelling on the details of dispensing until it was certain there would be a product to dispense. But now that the growers are in place the attention has shifted to the shops that will soon open for business throughout the state, and not all of the attention is positive. Residents in the area of a potential Baltimore County dispensary expressed concern over the location of a one future shop, and politicians responded by imposing new restrictions that could jeopardize the location of this business. A similar pattern of events has taken place in Anne Arundel County, Queen Anne’s County and Baltimore City. Many of the residents who have complained about the location of dispensaries support the medical marijuana program as a whole, but they just don’t want the stores in their neighborhood. The problem is that dispensaries have to go somewhere, and you can’t just make patients drive out to the boonies or into high crime areas to buy their medication.

As with most complaints about medical or recreational marijuana the latest concerns over the location of dispensaries are naïve and ignorant. The detractors assume that pot shops will bring in riff raff and crime to their neighborhoods, though the only support to this argument is the baseless stigma surrounding marijuana. Anyone who has traveled to areas around the country where pot is legal can attest to the fact that the dispensaries are highly sophisticated and secure operations, and their clientele just want to get in, buy their product and leave. You rarely, if ever, see anyone loitering around a dispensary, and the storefronts are clean and professional. Contrast this with local liquor stores that actually do bring in the riff raff, and are prime targets for robberies inside and outside of the store. Once the shops are open for business the stigma should start to erode, though realistically it will take a generation before marijuana is accepted not only as an effective medical product, but also as a safer recreational alternative to alcohol. As for dispensary locations, we do not feel this will ultimately cause additional delays to the program though the Blog will post an article in the future if this sentiment changes.

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marijuana-1281540_1280-300x225A recent Maryland Court of Appeals order likely prevented months of further delays to the medical marijuana program, and now registered patients may have access to cannabis by the end of the summer. The high court order blocked a Baltimore City judge from conducting a hearing about whether to stop the state medical cannabis commission from issuing more final grow licenses. Only one of the fifteen approved growers currently has a final license that allows the legal commencement of the cultivation process. The other fourteen were not able to secure a final license under the Baltimore City Circuit Court judge’s temporary restraining order, which was requested by minority owned grow companies that were not one of the fifteen to receive preliminary licenses to operate. The restraining order was supposed to expire on the date of the hearing, but now there will be no hearing and the order has expired.

The Court of Appeals did not release a full opinion on the matter, but rather stayed the restraining order portion of the lawsuit that is challenging whether the licensing process took race into account as required by law. The disgruntled growers requested the restraining order after arguing they would suffer greater harm should the medical marijuana program be allowed to proceed before their lawsuit is resolved. The Baltimore judge had barred the fourteen growers awaiting final licenses from participating in the restraining order hearing, which raised issues of fairness and standing, and may have prompted the Court of Appeals to issue the emergency order. Another issue the high court likely considered was the amount of money the licensed growers invested and stood to lose if the growing process was halted indefinitely. Lawyers argued that the companies who received preliminary licenses invested over $150 million in final preparation to begin growing and distributing.

Over the last four years most of the news headlines pertaining to medical marijuana here in Maryland have focused on incompetence, delays and corruption. News of the recent order by the Court of Appeals appears to buck this trend, and we could finally be approaching the home stretch where the first dose of medical cannabis reaches a patient in need. Estimates of the program officially becoming active in late summer are cautiously optimistic, but at this point there does not appear to be any impending issues that could threaten this timeline. There is always the risk that the federal government could somehow get involved, though this appears unlikely. The state’s highest court has spoken rather loudly that it believes medical marijuana should proceed without further delay. Whether the program could abruptly be halted sometime again in the future is another question, and one that will constantly be hanging over the heads of the licensed growers, distributors and patients. It has been argued that the licensing process was unconstitutional at its core, and this issue will be resolved in court or by way of negotiated settlement. A settlement however would likely have to involve the legislature granting additional license to the aggrieved parties, which is a long shot and would have legal issues of its own. For now though the medical cannabis program steams ahead and the Blog will continue to follow any more potential hiccups.

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potgrow1-300x225Medical marijuana growers throughout Maryland are putting the finishing touches on their multi million-dollar greenhouses, and after 4 years of waiting some are prepared to start planting or processing powerful strands of pot within a matter of weeks. But enthusiasm within the walls of the 23 state licensed grow and processing facilities is somewhat tempered as numerous impediments to commencing operations remain. The latest impediment comes in the form of an emergency motion filed in the Circuit Court for Baltimore City, which requests a judge to issue a temporary restraining order preventing the state cannabis commission from issuing final grow licenses. One of the companies that did not receive a preliminary grow license filed the motion on the grounds that the commission ignored a portion of the law that requires actively seeking racial and ethnic diversity throughout the licensing process. Lawyers learned of this omission during ongoing depositions as part of the discovery process of pending litigation against the state. This request for a temporary restraining order comes on the heels of the governor issuing an executive order requesting a study whether minority companies face disadvantages in the medical marijuana industry. In addition, it still remains a possibility that lawmakers may be recalled to Annapolis for a special legislative session to address racial diversity concerns with respect to the 15 awarded grow licenses.

As if the restraining order motion and the governor’s inquiry into the fairness of the process weren’t enough, the Maryland Medical Cannabis Commission is now under fire for possibly circumventing public contract bidding regulations. State officials with the Office of Legislative Audits have been critical of how the commission awarded the contract to evaluate grower and distributor licenses to an economic studies group at Towson University. It turns out that Towson charged 60 percent more per application that had originally been budgeted for, and the price to review the 512 applications came to a whopping $2.6 million. Auditors clearly believe that the commission spent too much of the state’s money, and it probably did. However at the time the commission was severely inexperienced and underfunded, and ill equipped to handle hundreds more applications than expected. There was understandably tons of pressure to get the straggling medical marijuana program off the ground, and the commission likely made a decision to have the applications reviewed by a competent institution as quickly as possible.

Towson has yet to receive payment on the $2.6 million bill but they are expecting the state to pick up the entire tab. The bottom line is that the university did the work and whatever excess costs were incurred should really be attributed to lawmakers. The process to evaluate and rank the applications was extremely complicated, and placing an arbitrary limit of 15 licenses was short sighted and illogical. In addition, the commission was not afforded adequate resources to do its job, as commissioners were volunteers from the state who did not receive specialized training. Taxpayers would have been better served by a commission made up of a paid, full-time staff with experience implementing one of the many medical marijuana programs in the country.