- posted: Jan. 28, 2016
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. 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. These charges 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, there are a few additional factors to consider about the new law. Even though possession of less than 10 grams of marijuana is a civil offense, the legislature did not change the penalty for possession of paraphernalia (such as a scale, grinder, or pipe), which was a misdemeanor punishable by a fine of up to $500.00 for a first violation. That meant that a State’s Attorney could still stick a criminal defendant with a misdemeanor if the defendant was found with both marijuana and some item adapted for the use of marijuana.
The legislature recently passed, over Governor Larry Hogan’s veto, House Bill 105, which remedies the problem with convictions for paraphernalia in cases of possession of less than 10 ounces of marijuana. You can read the text of the bill here. The recently-enacted law regarding paraphernalia tracks the language of the previous law on marijuana possession. In a case involving the use or possession of less than 10 ounces of marijuana, possession of paraphernalia is punishable by a civil fine of not more than $100.00 for a first offense. The law requires mandatory drug education classes for defendants who are less than 21 years old, or who are 21 years old or more and are convicted of a third offense, which is also consistent with the penalty for possession of marijuana less than 10 grams.
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 small amounts of marijuana. Instead, possession of such items will be punished by a civil fine. 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.
However, it is likely 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, both of which are felonies punishable by five years incarceration, a fine of up to $15,000.00, or both. These crimes 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. The law 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 and grinders. This effectively allows the State to “upgrade” a civil offense to a felony. Now, you may argue that scales and grinders are necessary articles for the use and purchase of marijuana, not its production. That’s a great argument, and it may even prevail, but it 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.
The Maryland General Assembly also included in HB 105 a provision that creates a new misdemeanor: Md. Crim. Law §5-601.2, which prohibits smoking marijuana (even less than ten grams) in public places, including privately-owned shopping centers and malls. The law also prohibits smoking marijuana in parking areas adjacent to such areas, and in parked vehicles at those locations. The penalty is a misdemeanor with a fine of up to $100.00. What this means is that you can possess less than 10 grams of marijuana in a public place and only face a civil fine. However, if you smoke marijuana in a public place, you will still be subject to a criminal charge.
There are some gray areas in the new laws. In the case of the paraphernalia statute, the State may be able to argue that the new civil fine language does not apply if a conviction is eventually obtained for a charge other than possession of marijuana. The law states that “a first violation of this section involving the use or possession of less than 10 grams of marijuana is a civil offense punishable by a fine not exceeding $100.00.” If the state obtains a conviction for distribution of marijuana because the defendant passed a pipe to his friend, does the relaxed sentencing for paraphernalia apply, or does the violation no longer “involve the possession of less than 10 grams of marijuana?” In the case of the “smoking in public” statute, it should be noted that the law specifies smoking as the prohibited act. It is not clear whether the use of a vaporizer or bong would constitute criminal behavior under the statute. Similarly, the use of marijuana-infused edibles would not seem to be prohibited.
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.