With new marijuana law, defense attorneys figure drop in clients is ahead
By: Danny Jacobs Daily Record Legal Affairs Writer October 1, 2014
Del. Curt Anderson was walking out of his home near Morgan State University on Tuesday morning when he was stopped by two students.
“I want to shake your hand,” one said.
“Why is that?” the Democratic lawmaker asked.
“Because tomorrow is Oct. 1 and marijuana is legal,” the student said.
Anderson, who is also a criminal defense attorney, corrected the student: The new law does not legalize marijuana in Maryland; it only makes possessing less than 10 grams punishable by a civil citation rather than a criminal penalty. The fines range from $100 for a first offense to $500 for a third.
But Anderson said besides Tuesday’s interaction, he has not received any questions about the new law, a fact he attributed to its being widely publicized. Other criminal defense lawyers agreed.
“People that smoke marijuana are so attuned about what the law is that I don’t think they have any questions,” said Andrew V. Jezic, of the Law Offices of Jezic & Moyse, LLC in Wheaton. “They don’t ask; they tell me about it.”
As police and prosecutors continue to work out how to best enforce the law, however, criminal defense lawyers say it brings up new issues they will have to consider when representing clients in marijuana cases — that is, if they have clients in the first place.
“People will think, ‘We don’t need a criminal attorney to deal with this.’ And, frankly, they don’t,” said Thomas Maronick Jr., a solo practitioner with offices in Baltimore and Ocean City. “It’s a sea change in what we’re used to. So much of criminal defense law is tangentially or directly related to marijuana.”
Maronick handles around 30 marijuana cases per month, a number he expects to drop by half under the new law.
“It’s a huge blow for everyone in defense,” he said.
Andrew I. Alperstein, of Alperstein & Diener P.A. in Baltimore, agreed. The firm handles at least 100 marijuana possession cases per year, a number he anticipates will drop close to zero with the new law.
“People charged with criminal offense are told you have a right to a lawyer,” he said.
Peter Ayers Wimbrow III, president of the Maryland Criminal Defense Attorneys’ Association, said he has heard “some grumbling” from members about the new law costing them business but noted marijuana possession laws have been weakened significantly since he first began practicing more than 40 years ago.
A bigger concern to Wimbrow, Maronick and other criminal defense lawyers is how the new law will impact defendants’ Fourth Amendment rights against unlawful searches and seizures. The law gives police the right to issue a citation for probable cause if they believe a person has less than 10 grams of marijuana.
The Governor’s Office of Crime Control and Prevention, in conjunction with the Maryland State’s Attorneys’ Association, scheduled regional sessions across the state to train officers on issues relevant to the law, including probable cause, burden of proof and evidentiary concerns.
Most criminal defense attorneys interviewed, however, said the law’s implementation will not be complete until Maryland’s appellate courts weigh in.
“My strong suspicion is [law enforcement officials] are going to say, ‘Just proceed as planned until a court says to do otherwise,’” Alperstein said.
Among the hypothetical scenarios mentioned in interviews: If the smell of marijuana prompts an officer to pull a car over, is a search permissible if all that officer sees is a marijuana cigarette? If a person in a hotel room admits to smoking marijuana, do the officers have a right to do anything beyond an open and obvious search? And what about K-9 searches?
“Nobody can ask that dog if it’s alerting to less than 10 grams of marijuana or a kilo of cocaine,” Alperstein said.
Maronick said: “It’s going to open up a tremendous amount of challenges to searches.”
Jezic said he believes a challenge to the law will go through the state appellate courts all the way to the Supreme Court, where the justices will hold a police search is constitutional once marijuana is detected.
“If you smell marijuana, it might just be 11 grams,” said Jezic.
Another issue for defendants is whether being issued a citation for marijuana possession would be considered a probation violation. Criminal defense lawyers said the citation is similar to a speeding ticket, which is not considered a violation of probation. On the other hand, probation contracts often state a defendant cannot use illegal drugs.
“I think it will be dependent on the judge, but as far as I’m concerned, it’s still illegal,” said David H. Moyse, Jezic’s colleague.
The state’s criminal defense lawyers’ association did not take a position on the marijuana law, but Wimbrow said he hopes the issues raised by lawyers get addressed either by lawmakers or the courts.
“It’s certainly important to recognize the questions are out there,” he said.