Possession of Marijuana and Non-Marijuana

Maryland has a wide variety of laws that regulate and prohibit the possession of controlled dangerous substances including, but not limited to, marijuana, cocaine, heroin, opiates, and prescription medications such as suboxone, hydrocodone, oxycontin, and methadone.   What crimes and punishments apply to a particular incident of “possession” depends on very specific facts and circumstances.  Therefore, anyone considering using and possessing a controlled substance in Maryland should seek legal counsel for a formal opinion before engaging in any questionable conduct with drugs or controlled substances.   Generally speaking, possessing 10 grams or more of marijuana is punishable with up to 6 months of incarceration and a fine of up to $500.   The possession of less than 10 grams of marijuana is illegal in Maryland, punishable as civil offense with fines of $100 for a first offense, $250 for a second offense, and $500 for a third offense.   Moreover, the courts and law enforcement retain records for these civil infractions to help determine who is a repeat offender.   Possession of any controlled dangerous substance (i.e., cocaine, heroin, opiates, prescription medications without a prescription) is similarly punishable with graduated sanctions:

First offense: one year in jail, a $5,000 fine or both;

Second or third offense: 18 months in jail, a $5,000 fine or both;

Fourth or subsequent offense: 2 years in prison, a $5,000 fine or both.

A “controlled dangerous substance” is any chemical listed on five lists or “schedules” contained in §§ 5-401 through 5-406 of Maryland Criminal Law article, as well as any chemical on the corresponding federal schedules.  Certain chemicals and compounds used to manufacture controlled dangerous substances are also prohibited in Maryland as “controlled dangerous substances.”   For simplicity purposes, Maryland courts distinguish many possession offenses into two categories: marijuana offenses and non-marijuana offenses.   Certain waxes, oils, cake, shatter, and other extracts made from marijuana are considered to be non-marijuana and not eligible for the lesser marijuana penalties of 6 months in jail and a $500 fine.   This is because the Maryland criminal code specifically excludes from the definition of marijuana, “except for resin, any other compound, manufactured product, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake.” 

In certain circumstances, if a defendant can show that his or her possession of marijuana was for a medical necessity, the judge is supposed to dismiss the possession of marijuana charge.  Similarly, it can be a defense, in certain circumstances, if someone over the age of 21 was possessing marijuana for the purpose of providing it to someone suffering from what qualifies as a “debilitating medical condition.”  Smoking marijuana in public is a civil offense punishable with a fine of up to $500 in addition to any other penalties for possessing the marijuana and its paraphernalia.

In Maryland, it is a felony to distribute or possess with intent to distribute a controlled dangerous substance, including marijuana.   “Distribute” in Maryland means to deliver or convey the drug to another person, even if not in return for any kind of payment.   Thus, giving marijuana or another illegal drug to a friend can still subject an individual to felony prosecution for distribution.   Whether or not someone will be charged and prosecuted for “possession with intent to distribute” a controlled dangerous substance depends on the specific facts of a given situation.   Some of those factors include: is there evidence the defendant was using the drug; is the quantity of the drug typically greater than an amount usually kept for personal use; is the drug packaged in a manner that looks like it was prepared for distribution; are tools of distribution present, such as empty baggies and scales; are there large amounts of cash found near the drug or on the defendant.   A person found guilty of distribution or possession with intent to distribute a non-narcotic drug (i.e. marijuana) is subject to a maximum penalty of five years in prison and a $15,000 fine.   A defendant convicted for a first offense of distribution or possession with intent to distribute a narcotic drug (i.e. cocaine, opiates) is subject to a maximum penalty of 20 years in prison and a $15,000 fine.  

In defending against a charge for violating Maryland’s controlled substances laws, there are many issues to consider.   Since such a case almost always involves a “seizure” of the drugs and/or the defendant consideration must always be given to whether or not the police violated the defendant’s rights against illegal search and seizure as guaranteed by the Fourth Amendment of the United States Constitution and Article 21 of the Maryland Declaration of Rights.  If the police acted illegally, or overstepped what the bounds of what they are permitted to do, the drugs and other important information could be suppressed from use by the government at a trial.   Suppressing evidence seized pursuant to a search warrant issued by judge can be more difficult, and requires a very technical examination of the evidence used to get the warrant, as well as the manner in which the warrant was executed.   Another common issue focuses on the evidence, or lack of evidence, linking the alleged contraband to the defendant.  Similarly, the government has to prove that the drug they are presenting in court as the illegal drug, is the drug that was actually found on or near the defendant.    This is sometimes referred to as the “chain of custody.”   The government often needs to bring to court, every officer or technician who handled the drugs to establish an accurate chain of custody. If there is a link in the chain missing, the case might get dismissed.   And of course, the government is required to prove that the evidence recovered by the police is the substance that was listed in the charges – a task that is sometimes difficult and subject to doubt.

Even if the evidence is strong against a particular defendant, an experienced attorney can seek out options for a favorable resolution.  For example, more prosecutor offices and courts are willing, depending on the circumstances, to consider dismissing a charge, or removing the conviction from the defendant’s record if the defendant engages in a successful course of treatment.  Sometimes, treatment can be negotiated as option instead of jail time in more serious cases.  If you or a loved one are facing drug charges, or in danger of receiving drug charges, consider calling our office for a consultation with one of our attorneys.