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Possession of Under 10 Grams of Marijuana

Advocates for the legalization of marijuana claimed victory in 2014 when Maryland decriminalized the possession of less than 10 grams of marijuana. Since then, possession of less than 10 grams of marijuana in Maryland has been prosecuted as a civil offense, punishable with a fine of up to $100 for a first offense, $250 for a second offense, and $500 for a third offense. This new law eliminated some potentially unfair practices. For example, the change in the law prevents officers from arresting all the occupants of a vehicle or house when only small amounts of marijuana are found. The new law also prevents someone found with trace amounts of marijuana from being prosecuted and punished to the same extent as someone found with a gallon-size bag of marijuana.

However, the new law has a number of disadvantages. Since possession of under 10 grams is a civil offense, defendants are not entitled to the state and federal constitutional rights that are normally required in criminal proceedings. For example, if you want to contest the charge, you are not automatically given a court date; you have to request one. If you do not request a trial date, or fail to appear for a trial date, a judge will enter a verdict of guilty and impose the maximum fine. Additionally, the courts no longer require the suspected marijuana to be tested and confirmed as being marijuana, as is required in a criminal case. The respondent can have a judgment and fine imposed against him or her based merely on the officer’s testimony and personal opinion that the officer believes the substance to be marijuana. Furthermore, the State no longer needs to present evidence of guilt “beyond a reasonable doubt,” the standard used in criminal cases. Instead, the standard of proof for this civil violation is “preponderance of the evidence” which is similar to “more likely than not” – a much lower standard. And if you want an attorney, the offense no longer is eligible for representation by the Public Defender’s Office. You have to hire an attorney or represent yourself if you cannot afford one.

Moreover, the new law has given the public a false sense of security that there are no adverse consequences to just paying the fine, or that possession of small amounts of marijuana are legal in Maryland. People who do not contest the charge are then sometimes later confronted with a job application that asks (usually under the penalties of perjury): “Have you ever been found guilty of any offense involving the possession of a controlled dangerous substance?”The answer is “yes” becausepossession of small amounts of marijuana is still illegal in Maryland (with some limited exceptions) and paying or not contesting the civil citation is still a plea or finding of guilt. Many employers do not want to hire anyone with a history of possession or use of marijuana. For example, some insurance companies who insure businesses that hire drivers or are otherwise involved in high risk work will often not allow businesses to hire people with a history of marijuana use.

Getting such a citation expunged can also be difficult. The statute regarding these civil violations includes a section that requires the court records of the charge to be kept “confidential”. But this provision does not expunge the court records and it makes only the court records – not the law enforcement records – confidential. The court records are kept confidential only if certain conditions are met regarding the final disposition of the case. Getting the court records and police records expunged can also be difficult because an under 10 grams citation does not exactly fit within the list of enumerated cases that can be expunged. For example, the statute that allows for certain minor convictions to be expunged (CP § 10-110) allows for cases involving possession of marijuana over ten grams to be expunged (CR § 5-601), but it does not list the statute for possession of under 10 grams of marijuana (CR § 5-601). Therefore, if you receive such a citation, you may want to have the assistance of one of our attorneys, especially if you are currently in, or may enter a profession, that will look unfavorably on employees who may use or possess marijuana.

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