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Maryland Decriminalizes Possession of Drug Paraphernalia

On October 1, 2014, legislation in Maryland took effect that reduced the sentence for possession of less than 10 grams of marijuana to a civil offense, punishable by a fine not exceeding $100.00 for a first offense.  Civil penalties do not carry criminal record repercussions – people who are fined in this manner may continue to answer “no” when a prospective employer asks if they have been convicted of any misdemeanors or drug crimes.  You can read more about that change in the law here.  That legislative change represented a departure from previous law, which made such possession a misdemeanor punishable by one year incarceration or a fine of up to $1,000.00, or both.  Misdemeanor charges under the older law resulted in many people acquiring criminal charges on their records that were readily viewable by prospective employers, which had negative effects on many citizens in Maryland.

As we wrote in our previous article, the new law had some related consequences that were not immediately apparent.  For example, even though possession of less than 10 grams of marijuana is a civil offense, the legislature did not change the penalty for possession of drug paraphernalia, such as a scale, grinder, or pipe.   Possession of those items was a misdemeanor punishable by a fine of up to $500.00 for a first violation.  That meant that, under the old law, a State’s Attorney could still stick a criminal defendant with a misdemeanor if the defendant was found with both marijuana and an object used to smoke it.

 The legislature recently passed, over Governor Larry Hogan’s veto, Senate Bill 517, which remedies the problem with convictions for paraphernalia in cases of possession of marijuana.  You can read the text of the bill here.  The new statute explicitly exempts paraphernalia used in conjunction with marijuana from the paraphernalia statute.  The bill modifies Maryland Crim. Law § 5-619 to state that “[t]his subsection does not apply to the use or possession of drug paraphernalia involving the use or possession of marijuana.”

The effect of the law is to negate criminal penalties for possession of items such as scales, grinders, rolling papers, pipes, and bongs when they are found in connection with marijuana.  Under the statute, possession of these items in relation to marijuana is no longer criminally punishable, by fine or otherwise. 

The Maryland General Assembly also included in SB 517 a provision that downgrades smoking marijuana in public to a civil fine.  Under the new law, possession of a controlled dangerous substance “involving the smoking of marijuana in a public place is a civil offense punishable by a fine not exceeding $500.00.”  Note that the fine for smoking marijuana in public is $500.00, while the fine for possession of marijuana, standing alone, is $100.00.

It is possible that the State’s Attorney will once again try to thwart the will of the legislature by charging the possession of paraphernalia in an alternate manner, similar to the experience of charges under the possession statute.  For example, it is common for the State’s Attorney to charge a person with distribution of marijuana, or with possession of marijuana with intent to distribute pursuant to Md. Crim. Law §5-602.  Those charges are felonies punishable by five years incarceration, a fine of up to $15,000.00, or both.  They may be charged and proven even if the defendant possessed less than 10 grams of marijuana.

In the case of paraphernalia, the State’s Attorney may charge the defendant with possession of “equipment to produce controlled dangerous substance” pursuant to Md. Crim. Law §5-603, which is also a felony punishable by five years incarceration, a fine of up to $15,000.00, or both.   Md. Crim. Law §5-603 states that:

“Except as otherwise provided in this title, a person may not manufacture a controlled dangerous substance, or manufacture, distribute, or possess a machine, equipment, instrument, implement, device, or a combination of them that is adapted to produce a controlled dangerous substance under circumstances that reasonably indicate an intent to use it to produce, sell, or dispense a controlled dangerous substance in violation of this title.”

In many instances, the same items that are alleged to be paraphernalia may be argued, by the State, to be equipment adapted to the production of a controlled dangerous substance, particularly scales, grinders, and excess plastic baggies. 

This effectively allows the State to “upgrade” a civil offense for possession of marijuana to a felony, and to upgrade possession of paraphernalia from a non-criminal act to a felony.  Now, you may argue that scales and grinders are necessary articles for the use and purchase of marijuana, not its production.  In the case of possession with intent to distribute, you might argue that possession of less than 10 grams demonstrates that the marijuana was for personal use.  Those are great arguments, and they may even prevail, but they will probably not lead to the State dismissing the charges against you.  What you have to remember is that the burden may be on the State to prove its case beyond a reasonable doubt, but the burden will be on you to have an attorney defend you against the State’s charges, regardless of whether the State’s allegations are meritorious or not.

There are some gray areas in the new laws.  In the case of the “smoking in public” statute, it should be noted that the law specifies smoking as the exempted act.  It is not clear whether the use of a vaporizer or other device that does not operate by burning would constitute “smoking” under the statute.  Similarly, the use of marijuana-infused edibles would not seem to fall under the new law, and would be punishable only as possession.  As noted above, distribution and possession with intent to distribute marijuana remain felonies.

In the case of the paraphernalia law, it should be noted that the legislature did not negate criminal liability for possession of paraphernalia in relation to substances other than marijuana, and decriminalized paraphernalia only for “use and possession” of marijuana.  Possession of paraphernalia for the purposes of manufacturing or distributing marijuana may still be charged as a misdemeanor.

Although the General Assembly has taken significant steps to decrease the penalties associated with marijuana use, some challenges still remain, particularly with regard to the charging of criminal offenses involving marijuana and paraphernalia possession.  If you or someone you know are arrested for possession of marijuana or paraphernalia, contact Mudd, Mudd & Fitzgerald, P.A.

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