Wacky Weed

From a theoretical perspective, the two most fascinating areas of law relate to DUI/DWI and marijuana. My fascination with DUI Law revolves around the bizarre dichotomy where it is one of the most aggressively prosecuted crimes, while at the same time being completely legal to drink and drive a little bit. Wouldn’t it be much more rational to completely prohibit any drinking and driving – especially when the number one constant related to alcohol is that its use, in and of itself, reduces the ability to act rationally? I spend day in and day out in court – often having to bite my tongue when I hear the triers of fact pondering how a DUI could possibly happen – when I truly believe it’s by legislative design (i.e. if it were legal to steal a little bit there would be more thefts). This is, however, a subject for an entirely different article (and a topic of which I have written extensively).

The second most fascinating area are legalities related to marijuana. It pains me to see people being locked in cages for the use of a plant that needs no processing. It seems unconscionable to me that anyone could lose their life, liberty, and pursuit of happiness for picking a bud off a plant and putting it in his/her pocket. As if that is not bizarre enough, there are people being put in cages for using a substance that is flat out legal in 8 states including Washington DC; 28 other states permit the medical use of marijuana. I am intellectually allergic to inconsistency and I firmly believe the law should be devoid of it. Aside from the obvious problem with people being jailed in Maryland for a substance that is legal miles south in the nation’s capital; there are a plethora of nuanced inconsistencies related to marijuana law in Maryland that must be unpacked and exposed. This article is aimed at unpacking some of the oddities to help people better understand what to avoid, what their kids should avoid, and what to watch for at the ballot boxes in the coming years.

First, despite a plethora of scientific literate to the contrary, marijuana has been and continues to be a schedule 1 drug. Schedule 1 drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse. With that being our starting point, it is important to know that in 2010, Maryland had the fifth-highest overall arrest rate for marijuana possession in the United States, with 409 arrest per 100,000 residents. (The national rate is 256 per 100,000 people). In that year, marijuana arrests made up 49.9% of all drug-possession arrests in the state. In Maryland, blacks were 2.9 times more likely than whites to be arrested for marijuana possession (Wikipedia contributors. “Cannabis.” Wikipedia, The Free Encyclopedia).

In April 2014, Governor Martin O’Malley signed a law decriminalizing the possession of 10 grams or less of marijuana. The measure made such possession a civil infraction, similar to that of a traffic ticket and it took effect on October 1, 2014. Under the law, people under the age of 21 “who are accused of having less than 10 grams will have to pay a fine and attend a drug education program.” Bizarrely, with this changed, paraphernalia remained a “must appear” crime with a potential for a $500 fine. Thus, 1 gram of marijuana was a civil fine, but the bag that it was held in resulted in a citation that required a court appearance. Crazy, right? O’Malley’s plan made it so the only way to legally get a civil fine was to be caught with less than 10 grams of marijuana directly in your hand or in a bag made of weed itself, which as of the day I’m writing this, I am not sure exists. (If it gets invented, because of this article, I hope to get 10%. Ha!) This is a prime example of the inconsistency that makes me ill. I think of them as traps, some believe this is legislative oversight. You be the judge.

In 2016, the Maryland General Assembly, controlled by democrats, passed SB 517 which decriminalized the possession of marijuana paraphernalia (such as the containers in which weed is housed, rolling papers, pipes and bongs) and decriminalized the smoking of marijuana in public; the measure makes both civil offenses punishable by a fine of up to $500. Republican Governor Larry Hogan vetoed the bill, but the Assembly overrode the veto.

In early 2016 I breathed a proverbial sigh of relief, thinking (foolishly) the issues were resolved for the time being; however, in late 2016 a few cases shined a new light on some majorly bizarre inconsistencies. Is it a new trap? You decide.

Remember from above: a Schedule 1 drugs are defined as drugs with no currently accepted medical use and a high potential for abuse. Marijuana is clearly on that list. The psycho-active ingredient in marijuana likely responsible for this designation is Tetrahydrocannabinol (THC). Interesting, Tetrahydrocannabinol (THC) is also listed completely separately as an independent Schedule 1 drug. This slight distinction allows the State to prosecute a single gram of marijuana derivative (THC) as a non-marijuana crime punishable with jail time, despite the 2016 legislative decriminalization. Herein lays the problem: with marijuana mania sweeping the nation via the states that have legalized recreational pot, tons of companies are finding ways to extract the THC from weed to allow people to use the substance without the carcinogenic ills of smoking. This narrowing down of the substance, for people in Maryland, can lead to hard jail even at quantities that are decriminalized when dealing with the classic green leafy buds.

The Annotated Code of Maryland CR 5-101(r)(1) clearly defines the resin of the plant or any “manufactured product [or] derivative” of the resin of the plant to be defined in the Code as “marijuana.” The Code does not make a distinction between THC and Tetrahydrocannabinol, as these terms are used to define the same substance. The only existing distinction is the substances of “Marijuana” and “Tetrahydrocannabinol” are separately described as distinct Schedule 1 substances under CR 5-402(d)(1), establishing the idea that these two substances are in fact treated differently for the purposes of criminal sanctions. The fact that CR 5-101(r)(1) mentions derivatives and manufactured products would seem to end this argument. THC is the derivative/resin and thus it is marijuana; however, CR 5-402(d)(1)’s bifurcation of marijuana and THC leaves the door wide open for the State to pick and choose how they want to prosecute. This is inconstant which historically, in law, has opened the floodgates of mistreatment of those being prosecuted.

Many people don’t even know what is out there when it comes to marijuana derivations. I myself had to do a fair amount of research to understand the leaps and bounds taken in recent years in the marijuana industry. Here are the substances out there that could easily be considered pure THC and thus jailable (CAGEABLE) even at a weight of less than 1 tiny gram:

  • Wax – dry and crumbly
  • Budder – wetter than wax and whipped into a peanut butter-like texture
  • Oil – runny and viscous, like olive oil
  • Sugar – looks like wet sugar
  • Shatter – glass-like texture that shatters into shards when broken
  • Snap-and-pull – similar appearance to shatter, but tacky and stretchy; also called “sap”

Given the many different forms and consistencies that are considered pure and/or close to pure THC, can you see the potential for problems? The current laws are not explicitly clear; in fact, they are purple-hazy at best because of the split of marijuana and THC. With marijuana being legislatively decriminalized in 2016, this loophole allows for selective interpretation in the terminology, enabling the law to be argued either way. So it doesn’t seem to matter how you wax, budder, oil, sugar, shatter or snap-and-pull – it’s a wildcard; may the odds be ever in your favor.