OCEAN CITY — Smoking marijuana in public places, including, for example, the beach or Boardwalk in Ocean City, could continue to be a criminal misdemeanor after Delegate Mary Beth Carozza last week was able to successfully attach an amendment to a House bill.
Last year, the Maryland General Assembly passed legislation that decriminalized simple possession of less than 10 grams of marijuana, making it an offense akin to a traffic citation. The bill, which took effect on Oct. 1, 2014, made the possession of less than 10 grams of marijuana a civil offense with a citation that can be paid without the threat of court appearances, jail time, probation and permanent marks on the offenders’ records.
However, the bill did not include language addressing the issue of possession or use of paraphernalia, which remained a misdemeanor with all of the penalties still attached including court appearances, possible jail time, probation and all of the other existing penalties. In essence, the possession of less than 10 grams of marijuana became a civil citation, while the possession of paraphernalia remained an arrestable offense.
Under the current legislation, a police officer can arrest an individual for possession or use of paraphernalia, but write a ticket for possession of the drug itself in small amounts. Last year’s bill was fraught with inconsistencies and confusion, and the General Assembly this year is considering new legislation attempting to clarify the issues.
For example, House Bill 105, introduced in this year’s session, would conform the penalties for possession and use of paraphernalia to the civil penalties for possession of less than 10 grams of marijuana passed last year. Before the full House could vote on the legislation, however, Carozza was able to successfully get an amendment attached that ensured it would be a misdemeanor to smoke marijuana in certain public places, including the beach and Boardwalk in Ocean City.
“We want our Boardwalk, our parks and our public space to be family friendly,” she said. “My amendment is common sense and protects the public. If it’s a misdemeanor to drink alcohol in public, then it should be a misdemeanor to smoke pot in public. It should not be more lenient to smoke marijuana in public than it is to drink in certain public places.”
With the amendment in place, the House voted 90-48 last Friday to pass the legislation. The bill now heads to the Senate where it will have to be reconciled with a similar bill introduced in that chamber. It remains uncertain if Carozza’s amendment will survive the final version approved by both chambers.
According to its fiscal note, House Bill 105 is intended to bring the use or possession with intent to use or distribute paraphernalia involving the use or possession of less than 10 grams of marijuana into alignment with the penalties established simple possession last year. This gap has been cited as a source of confusion for citizens and law enforcement alike because individuals who may have benefitted from the decriminalization of less than 10 grams are still subject to the criminal penalties for the related paraphernalia charges.
Essentially, the amendment would preserve paraphernalia possession and use in a public place as a misdemeanor and not a civil citation and could allow law enforcement to continue to make arrests for lighting up on the beach or Boardwalk for example. At a January briefing before the Senate Judicial Proceedings Committee, law enforcement representatives cited the criminal paraphernalia laws as the only legal restriction that authorizes officers to effectively prohibit the use or possession of marijuana in public areas.
Attorney Brian Clark, who represents clients in simple possession cases in Ocean City and around the state, said this week the law passed last year created some confusion in that it decriminalized the possession of small amounts of marijuana, but fell short of addressing the issue of actually smoking weed in public.
“The reasoning behind Delegate Carozza’s amendment makes sense and many states who decriminalized small amounts of pot adopted the same law many years ago,” he said. “It’s a matter of the public being educated about the law if it passes and how the front line officers in Ocean City enforce it. Ocean City does arrest people now for consuming alcohol in public and some of those arrests lead to weapon or serious drug arrests when the person is searched after an arrest.”
Clark said the bill as amended would make it a criminal offense to possess or use paraphernalia for marijuana in public places although the definitions were a little vague.
“I assume the bill covers the beach in Ocean City as a public space,” he said. “Ocean City Police do make a sizable number of arrests or citations on the beach late at night. Every defense attorney has seen those cases. It’s unclear to me until we see the final bill whether this is an arrestable offense like other states do or is it still a criminal citation as in years past that requires a court appearance. But, it doesn’t mandate a formal arrest and booking at the police station.”
As for retaining possession or use of paraphernalia as a misdemeanor in terms of law enforcement, Clark said the jury is still out, so to speak. Law enforcement officials have said retaining the criminal charge for paraphernalia has left them with some recourse to prevent lighting up in public.
“For some, this bill may be seen as a tool to keep marijuana arrests too high, while many others will see this law as a perfect compromise to keep a lid on undesirable behavior,” he said. “Needless to say, I don’t think this is the last change in our marijuana laws if approved. At some point, a balance must be achieved.”
Another House bill would make it a criminal offense to possess or use marijuana in a vehicle, except a locked trunk. The bill, if passed, would still make it a civil citation to possess 10 grams or less, but would make it a misdemeanor to have marijuana out in plain view in a vehicle.
“Many states that have decriminalized possession of small amounts of marijuana have retained criminal penalties for possession or use in a car or other public areas like schools etc.,” he said. “It also sends a message to deter those from driving under the influence or after ingesting marijuana. It could have a big impact on visitors to Ocean City if enforced by the OCPD, due to the large number of these pot possession cases that occur inside a vehicle. I can see the public being confused, but it likely would be October before it takes effect if passed.”