Earlier this year, Attorney General Jeff Sessions created pandemonium within the medical marijuana industry when he announced that the Trump administration would be reversing an Obama-era low priority enforcement approach to any cannabis-related activity. Now dispensary owners in states where medical marijuana has been made legal, such as in Maryland, don’t know what to do going forward and state lawmakers don’t have answers for them. Is medical marijuana a crime? Can they get arrested for selling it? Can patients be arrested for possessing it? Will the fledgling, thriving Maryland medical marijuana industry have to shutter because of new policy that may come from the White House? To be honest, we aren’t sure of the answers to those questions just yet either. But we’ll do our best in this blog post and future posts to relay the most up-to-date information. Read on and make sure to stay tuned for updates to this post!
Let’s take it back, now y’all.
Before we get to answering some of the questions we posed above, let’s take some time for a quick history lesson on the rollercoaster ride that has been the medical marijuana industry.
In the late 90’s and early 2000’s states began legalizing medical marijuana with California, Oregon and Alaska being among the first to do so. At the time marijuana was a Class 1 controlled substance, making the use or sale of it for any reason a crime. This still holds true today. With states beginning to legalize it, but the federal government still classifying it as a crime, authorities are in a sticky situation. Unsure of what to do, they turned to the higher ups of the government for answers. Enter: General Bill McCaffrey, Director of the Office of National Drug Control Policy (ONDCP) under President Bill Clinton. McCaffrey, known as the Drug Czar of the Clinton administration, led the battle cry against “legal” marijuana use, resulting in several high-profile indictments in the late 90’s.
Hostilities against the medical marijuana community continued to grow with the election of George W. Bush as president in 2001. Raids on legal dispensaries grew significantly during his first term. In 2005, as Dubya’s second term began, the Supreme Court ruled that federal powers trump states’ rights in regards to legal medical marijuana, seemingly putting a stopper on the growing industry.
However, in 2009, as newly-elected President Barack Obama began his first term, deputy attorney general, David Ogden, released a memo that indicated small-scale dispensaries in states where medical marijuana use had previously been deemed legal would become a low-enforcement policy of the new administration. Even so, the administration executed dozens of dispensary raids within Obama’s first term, to the ire of legalization proponents. With his second term came the release of a second memo, this one from deputy attorney general James Cole. Cole’s memo was a bit more comprehensive than Ogden’s; it directed authorities to treat all dispensaries operating in clear compliance of state laws as a low-enforcement priority. While still not the clear-cut vote of support from the president’s administration, this new memo gave dispensaries a little more confidence in their operations and significantly less vulnerability. Meanwhile, in Maryland, Governor Martin O’Malley signed legislation that established a medical marijuana program in the state. The legislation was signed in May 2013, but the medical marijuana program didn’t become fully operational until December 2017. By that time, 39 other states and the District of Columbia had legalized marijuana either for medicinal or recreational purposes.
The Status Quo is ‘Trump’ed
Surprisingly, after insisting during his campaign that he was 100% for the legalization of medical marijuana, Donald Trump picked Jeff Sessions, a vocal opponent of marijuana legalization, as the new Attorney General of the United States. The election of Sessions stirred up new concern in the medical marijuana industry, reintroducing fears of federal government crack-downs on dispensaries for the first time in over a decade. The administration stayed virtually mum on the issue for a full year; it wasn’t until January 2018 that Sessions finally issued a comment on the matter, stating that the Trump administration would be rescinding Obama-era policy that allowed states to legalize marijuana, bringing us full circle, facing the same conundrum of the late 90’s.
So, now what?
Despite the current administration’s opposition to legalized marijuana, the sale and use of medical marijuana became legal in Maryland in December 2017. Even though the federal government still classifies it as a crime and will potentially be reinstating crack downs and raids, those in the medical cannabis industry have some protection through a provision called the Rohrabacher-Blumenauer Amendment. This “rider” is tucked into spending bills and prevents the Department of Justice and Drug Enforcement Agency from spending any federal dollars to prosecute medical marijuana businesses in states where medical marijuana has been made legal. After the last government shutdown in early February, congress passed a six-week long continuing resolution that would continue to temporarily fund the Rohrabacher-Blumenauer Amendment – among other things – until March 23, 2018.
In these uncertain times, the best thing you can do as a patient is to be sure you are following the medical marijuana laws in your state, to the letter. Maryland law requires medical marijuana users to register online with the Maryland Medical Cannabis Commission. You will need to submit a government-issued photo ID (i.e. driver’s license), proof of address, a clear recent photo and the last four digits of your Social Security Number. For minors, a parent or legal guardian older than 21 must register with the commission as a caregiver before registering the underage patient.
After registering online with the commission, the patient must then obtain written certification from an approved provider who is also registered with the commission. The provider will need the patient’s commission-issued Patient ID number to issue the certification. Patients can also purchase ID cards for $50 from the commission, but one is not required to buy medical marijuana. For full details on the process to legally obtain medical marijuana in Maryland, click here.
Because the federal government still classifies marijuana use as illegal, patients cannot travel to other states with medical marijuana that was legally obtained in Maryland. If a patient is stopped by law enforcement in Maryland and is carrying medical marijuana, they are not legally required to consent to a search of their vehicle, nor do they have to disclose that they are in possession of medical marijuana. If medical cannabis is found during a search, the patient should present their commission-issued patient ID card if they have one, or direct law enforcement to the Maryland Medical Cannabis Commission’s online database of registered patients. Unless instructed otherwise by a physician, a patient can be in possession of up to 120 grams of medical marijuana (roughly 4oz) or up to 36 grams of THC (the active ingredient in marijuana). It goes without saying that driving under the influence of marijuana is a really bad idea; not only that, it’s also a crime. So…don’t do it.
All medical marijuana must be obtained through a commission-approved provider; doctors and patients are not permitted to grow their own medical marijuana, even if they’ve been approved to use it by the commission. Medical marijuana is not transferrable. If you legally obtained yours by registering with the commission and buying from a commission-approved provider, you cannot give your medical marijuana to anyone else.
If you need a hand…
As we said earlier, things are a little murky right now when it comes to the legality of medical marijuana. We’ll do our best to update this post with information as it becomes available; hopefully as policy evolves and is refined, the picture will become a little clearer for all those involved. In the meantime, if you find yourself facing criminal charges because of marijuana use, give us a call and we’ll be happy to help you sort it out. You can reach us Monday through Friday at (410) 535-6100 or shoot us an email at firstname.lastname@example.org.
This blog post that is published by Ferrante & Dill is only available for informational purposes and should not be considered legal advice. By viewing these blog posts, the reader understands there is no attorney-client relationship between the blog publisher and the reader. The blog post should not be used as a substitute for legal advice from a licensed professional attorney, and we recommend readers to consult their own legal counsel on any specific legal questions concerning a specific situation.