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Questions linger on eve of marijuana decriminalization enactment

Despite contradictions and unanswered questions plaguing Maryland's marijuana decriminalization law, scheduled to take effect on Wednesday, police plan to do what they can to enforce the new regulations, and prosecutors hope the coming legislative session will provide clarification.

Senate Bill 364, signed into law by Gov. Martin O'Malley in April, makes the possession of less than 10 grams of marijuana, weighed independently of packaging, a civil offense punishable by fine, according to the Department of Legislative Services fiscal and policy note.

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However, possession of drug paraphernalia — including bags, rolling paper and bongs — remains criminal, meaning violators can still receive a criminal citation, and any amount of marijuana, still considered a controlled dangerous substance, will be confiscated.

Whether police and prosecutors will focus on the criminal or civil element of marijuana possession depends on the policy in each county.

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The law also provides for escalating fines for repeat offenders and requires that three-time offenders appear in court as well as attend a drug education program, according to the fiscal and policy note.

On the eve of the implementation of the system, however, there is no clear method for tracking repeat offenders because civil citations cannot be maintained in the same databases as criminal offenses.

Prosecutors: Law hastily passed

Prosecutors have been quick to point out the inherent contradiction in decriminalizing personal-use quantities of marijuana while leaving paraphernalia possession a crime.

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"It's very rare, if not nonexistent, that you would find loose marijuana without some kind of paraphernalia," said Carroll County Deputy State's Attorney Edward Coyne.

Many complaints from the Maryland State's Attorneys' Association stem from the hasty passage of the bill without adequate discussion, according to Frederick County State's Attorney Charlie Smith.

MSAA tracked the law when it was introduced and recommended waiting to observe consequences in states like Colorado and Washington, where recreational use of marijuana was legalized, Smith said.

The bill was not expected to pass, but rather would be sent to a task force to study possible consequences, Smith said. However, the bill was sent to the floor and all amendments rejected the Saturday before the legislative session ended.

Baltimore County State's Attorney Scott Shellenberger said that the MSAA plans to be much more involved with any future marijuana legislation.

The MSAA expects the legislature to address decriminalizing paraphernalia next.

"We firmly believe the legislature will also change paraphernalia to make that also civil," Smith said.

States that have legalized the recreational use of marijuana have written specific provisions outlawing the use of marijuana in public, Coyne said. Maryland currently does not have such a law on the books.

Coyne said he hopes that was an oversight and not intentional on the part of the General Assembly.

"I would hope that's not what they wanted," he said.

Coyne also said that he fears misconceptions as the new law takes effect, particularly if the public does not understand the difference between "decriminalized" and "legalized."

"It's still not legal to possess," Coyne said.

Coyne also emphasized that other aspects of controlled dangerous substance law still apply to possession of marijuana as well, including the intent to distribute, which can be proven even if the defendant has less than 10 grams of marijuana. Indicators such as the way the drug is packaged could potentially show intent to distribute, according to Coyne.

Howard County Deputy State's Attorney Mary V. Murphy said any significant change in the law will leave questions, but people are looking closely at areas of the legislation ripe for further review.

"It's something that I anticipate will be tweaked," she said.

Smith said another concern is Maryland's "drugged driving" law, which specifically prohibits driving while under the influence of a controlled dangerous substance, such as marijuana.

The law currently does not include a "per se" charge that would allow an officer who detects any quantity of controlled dangerous substance in a driver's system to arrest the driver, according to Smith. The law also doesn't require that the driver submit to a blood test to determine if they were driving under the influence of a drug.

Clearing up these questions will be a goal of the MSAA in the coming legislative session, which begins on Jan. 14.

"We anticipate getting some of this done," Smith said.

Plans for enforcement differ

In Carroll County, the state's attorney has recommended that law enforcement focus on the criminal element of possession of less than 10 grams of marijuana and write criminal citations for paraphernalia only, largely ignoring the civil citation element, Coyne said.

"We do criminal prosecutions and there's still a criminal aspect," he said.

No extra equipment, such as scales, will be issued to assist in enforcement, Coyne said, but police should be able to identify 10 grams of marijuana based on their training, knowledge and experience.

Coyne said the purpose of this policy is to keep things "as status quo as possible" for law enforcement.

As long as police are enforcing the criminal law, very little current procedure should change, Coyne said. The smell of raw or burnt marijuana will still give police cause to search a person or a vehicle.

Maryland State Police leadership recently made their statewide policy recommendation, according to spokesman Greg Shipley, and are instructing troopers to write civil citations when appropriate and not to write a criminal citation for paraphernalia unless additional laws are broken.

For example, Shipley said that if an individual has less than 10 grams of marijuana, drug paraphernalia and an illegal weapon, they will be charged with both the paraphernalia and weapon crimes.

Coyne said that he is aware of the State Police policy and the fact that it is not in line with his office's recommendation for enforcement.

"While we respect their policy, we're recommending something different," he said.

Coyne said that the State Police have to coordinate for a statewide agency, which covers more progressive jurisdictions, such as Baltimore City.

"It makes sense for a state agency to have a uniform statewide policy," he said.

Lt. Patrick McCrory, commander for the Maryland State Police Westminster Barrack, said that the state's attorney announced their policy prior to the State Police announcing one, but he will be following his agency's recommendation.

"I'm not going to go rogue from the rest of the State Police," he said.

The Carroll County Sheriff's Office will follow the state's attorney's recommendation to focus on the criminal paraphernalia rather than on issuing civil citations for possession of less than 10 grams of paraphernalia, according to Cpl. Jonathan Light.

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"It very slightly affects our operations," Light said of the new law.

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Because the current law differentiates between possession of less than 10 grams and possession of 10 grams or more, police are accustomed to determining approximate weight in the field.

In Baltimore County, Shellenberger said police have been instructed to write civil citations if they find what they believe to be 10 grams of marijuana or less — or anything close.

"We are telling them to err on the side of caution," he said.

If police believe an individual is in possession of more than 10 grams, they are to arrest the individual and have the exact amount determined by the crime lab, Shellenberger said.

"I'm trying to enforce the law but also the spirit of the law," he said.

Frederick County plans similar enforcement with police instructed to follow the law and write civil citations for possession of less than 10 grams of marijuana, Smith said.

Howard County law enforcement will also enforce the law as written, issuing civil citations when appropriate, according to Murphy.

No plan for tracking of repeat offenders

Legislators created a system of increasing penalties for civil offenders, but did not provide a set plan for tracking repeat offenders, according to the bill's fiscal and policy note.

Because the offense is not criminal, it cannot be entered into the Maryland Judiciary Case Search website or the Criminal Justice Information System, according to Coyne.

"It's still questionable whether there is any way to track civil citations," he said.

The fiscal and policy note for the bill said that the state can anticipate a one-time expenditure of approximately $127,735 to modify CJIS to comply with the policy against civil citations being entered into public record databases.

"The bill does not specify how a police officer issuing a citation will be able to determine whether a person who is older than age 21 must appear in court for a third or subsequent violation," the note said. "However, this analysis assumes that the Judiciary can develop a system to comply with the bill."

Writing a citation for a second or third offense must be done by the law enforcement officer in the field, according to Terri Bolling, spokeswoman for the Maryland Judiciary.

The court does not have the authority to alter the charges after the fact if it is determined that the defendant had previous citations on their record, Bolling said. Amending the charges could only be done by the state's attorney's office for the jurisdiction.

Currently, there are no plans for the judiciary to request resources or funding for implementation of a tracking system, Bolling said.

Light said the Carroll County Sheriff's Office has been told that there will be a way for police to check for previous citations, but there is no word on when that process may be in place.

However, Shipley said a plan is in place for State Police troopers to be able to check through a secure database whether someone has prior citations.

"There is a process that has been set up that we're telling our troopers to use," he said.

Reach staff writer Heather Cobun at 410-857-7898 or email heather.cobun@carrollcountytimes.com.

In summary

Maryland's marijuana decriminalization bill goes into effect on Oct. 1.

The law makes possession of less than 10 grams of marijuana a civil offense but leaves possession of drug paraphernalia a crime.

The Carroll County State's Attorney's Office has a different policy on enforcement compared to surrounding counties and the Maryland State Police, which has a barracks in Westminster.

There is no definite system in place for all agencies to track repeat offenders to make sure they pay escalating fines or appear in court for a third offense.

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