Limits On The Constitutional Amendment’s Legalization Of Marijuana And The Impact On Public Policy

By Frank Johnson
Deputy City Attorney, City of Gaithersburg

Roughly two-thirds of Maryland voters approved Question 4, which provides that after July 1, 2023, a person “who is at least 21 years old may use and possess” marijuana (legally referred to as “cannabis”), but Question 4 included a second section making legalization subject to the General Assembly’s passage of legislation providing for the “use, distribution, possession, regulation and taxation of cannabis within the state” in what will launch the cannabis industry in a major way. So, the amendment did not remove all restrictions on use, sale, and possession.

The legislation leading to Question 4 was included in House Bill 1 in the 2022 General Assembly, which also passed House Bill 837, entitled “Cannabis Reform. ” This bill took effect on January 1, 2023.

HB 837 established a “personal use amount” of up to 1.5 ounces of usable cannabis as of January 1, 2023, allowing a civil fine up to $100 for use or possession, until July 1, 2023, when that penalty would only be imposed for those who are less than 21 years old. The bill also established a “civil use” amount, between 1.5 and 2.5 ounces, providing a civil penalty of up to $250 after January 1, 2023, which would continue after July 1, 2023 –demonstrating that legalization would extend to possession of up to 1.5 ounces. Possession of more would result in a civil fine, and possession of more than the “civil use” amount of 2.5 ounces would constitute a criminal misdemeanor.

HB 837 also established a prohibition against manufacturing but allows an adult, of July 1, 2023, to cultivate up to two cannabis plants, if they are outside the public view and secure from unauthorized access. Otherwise, the existing process for distribution of cannabis for medical uses and licensed growers will remain in place. Indeed, HB 837 will continue the criminal violation of possession with intent to distribute; only “adult sharing,” consisting of the transfer or sharing of a “personal use amount” between two persons at least 21 years of age without remuneration, is permitted.

Persons who were convicted of possession can file for expungement as of January 1, 2023, upon completion of the sentence, and those convicted of possession with the intent to distribute may petition for expungement three years after satisfaction of the sentence. By July 2024, all cases in which possession was the only charge will need to be expunged by the Department of Public Safety and Correctional Services.

HB 837 incorporated cannabis and hemp into the smoking prohibitions under the Clean Indoor Air Act. Smoking cannabis will be prohibited in public and in passenger areas of vehicles on the highways, allowing civil fines of up to $25 for a violation.

HB 837 additionally required the Attorney General to issue an opinion on the impact of legalization “on the authority of police officers to conduct searches” of persons and vehicles based on the odor of cannabis, including possession with intent to distribute, growing, manufacturing, or driving under the influence. The opinion, at 107 O.A.G. 153, did not predict significant changes in holdings by the Supreme Court of Maryland allowing officers to search a vehicle based on the odor of cannabis.

While framed as a prediction, the opinion noted that Maryland in 2014 eliminated criminal penalties for the possession and use of “some amount” of cannabis, while driving under the influence, possession with the intent to distribute, and illegal distribution remained criminal violations, as they will under the new law as well. The opinion emphasized, however, that the odor from a vehicle would not justify a search of those occupying the vehicle.

Further, the opinion noted that partial legalization would call into question the existing officer authority to use canines trained to detect the odor to establish probable cause for a vehicle search, as such “canine sniffs” are not now “searches” because cannabis is still contraband. That will cease to be the case based on the amount of cannabis, however, indicating that “use of a police canine to sniff for cannabis may itself constitute a search” requiring probable cause.

House Bill 837 also provided for comprehensive studies and reports by the Cannabis Commission on use, incidents of impaired driving, and other problems, and an income tax subtraction modification for expenses paid by medical growers, processors, and dispensaries.