The legalization of marijuana and marijuana-related products on July 1 will change a lot around the state of Maryland. But even as laws are changing, using marijuana the wrong way will still have consequences.
Public safety leaders are warning people not to get the wrong impression about what is and isn’t allowed, even though one of the new laws taking effect limits what police can consider to search a vehicle for criminal conduct.
Starting July 1, the odor of marijuana will no longer be enough of a reason for a police officer to stop a person or vehicle and conduct a search — a measure that got pushback from law enforcement agencies when lawmakers were debating the measure.
“That is a big concern,” said Darren Popkin, the executive director of the Maryland Chiefs of Police and Maryland Sheriffs’ Association.
Members of his organization voiced their concerns before the Maryland General Assembly.
“In a time where crime is increasing and some violent crime statistics are increasing here in Maryland, we didn’t want any barriers put up for that,” he said. “But it did pass and, as always, Maryland’s law enforcement will adjust to it.”
He added, “But time will tell.”
Debating the smell test
The law was sponsored by several Democrats in Annapolis, including Del. Charlotte Crutchfield of Montgomery County.
“Because cannabis was illegal, the smell of it gave officers the probable cause they needed to conduct a search,” Crutchfield told lawmakers debating the bill earlier this year.
Even under the new laws, the odor of marijuana can be among other factors used by law enforcement to conduct a stop, especially when it comes to impaired driving.
“The passage of this bill will not impede law enforcement’s ability to investigate incidents of impaired driving,” Crutchfield said in March.
Highlighting studies that show racial disparities in marijuana-related traffic stops, she said police in Maryland are four times as likely to subject Black drivers and their vehicles to warrantless searches than white drivers.
“This bill would eliminate opportunities for officers to abuse the discretion afforded to them in these situations and reduce opportunities for racial profiling on the road,” Crutchfield said.
The odor of marijuana could still be used against someone if there are other indications of a potential crime, including indications of impaired driving.
“We’ve looked toward the other states to see [if there has] been an increase in impaired driving arrests after the legalization went into effect in those states,” said Popkin.
He said the answer, after talking with police in other states that have long-established retail markets, is a firm yes.
“There has been significant increase in impaired driving in the states that marijuana became legalized,” said Popkin. “So it is an expectation that it’s going to most likely occur here in Maryland. I can’t imagine us being an exception to that.”
Changes to field sobriety tests
Amy Berning, a research psychologist with the National Highway Traffic Safety Administration, said surveys conducted in recent years suggest the number of people getting behind the wheel who can test positive for marijuana has, in fact, gone up. But she also warned against drawing too many conclusions from that.
“Being positive for a substance doesn’t mean impaired,” Berning said. “Overall, this is a serious concern for us.”
For now, however, there’s a lack of good data.
“Some states might not test for marijuana in a fatal crash,” she said. “Some states might test for it but only in certain situations. Some states might have tested for it three years ago, but not tested for it now. And with all those different events happening, we can’t actually say whether the actual percentage of people being drug positive in a crash has gone up or whether the testing has gone up.”
If someone is pulled over on the suspicion of impaired driving, “the difficult part of it is the testing processes,” Popkin said.
Breathalyzers can be used to determine how much alcohol someone has consumed, but there’s no similar technology for THC, the active ingredient in marijuana. But that doesn’t mean there’s not a strategy.
Maryland State Police said three additional tests have been added to the Maryland State Police Standard Field Sobriety Testing that aim to help determine any impairment by either marijuana or other substances.
A spokeswoman for MSP, Elena Russo, explained those three tests:
- Troopers are looking for a lack of convergence, which is the inability of an individual to cross their eyes, as part of the testing
- Troopers will also be conducting Modified Romberg Balance Tests, which is a time-estimation test that measures a persons sense of balance
- The last test is the finger to nose test, in which the individual touches the tip of their nose with the tip of their index finger all while having their head tilted back and their eyes shut
“Maryland State Police are constantly encouraging people to plan ahead when they’re drinking and driving. And this really is no different,” Russo said.
She said telltale signs of impairment, whether from drugs or alcohol, can often be similar.
“In terms of what our troopers see on the road, they observe a driver, maybe swerving in and out of traffic, driving aggressively or maybe driving too slow and dangerously — those are signs indicative of impairment or distraction,” Russo said.
She said there’s particular concern that someone might try a cannabis product for the first time, underestimating its potential impact, and then get behind the wheel.
“People will react differently to alcohol, just like they’ll react differently to cannabis,” Russo said. “And it’s up to the police officer who is conducting that traffic stop to determine whether you’re impaired and what you may be consuming to cause that impairment.”
She added, “We are trying to drive home this message that if you’re consuming cannabis products to plan ahead and do not drive. Have transportation set up for you if you have to go anywhere, but absolutely do not get behind that wheel.”
Federal laws that make marijuana illegal still apply to commercial truck drivers. If someone with a commercial driver’s license is involved in a crash and later tests positive for marijuana, it could jeopardize their license, and thus, their job, even if they aren’t considered impaired at the time of the crash and even if they live in a state where marijuana is considered legal.
Expungements of crimes?
New marijuana laws are also aimed at making the expungement of certain drug-related crimes easier. The state has one more year to expunge criminal records for those whose only charge was simple possession of marijuana. That could impact hundreds of thousands of Marylanders charged with that, and only that, in recent years.
Possession of larger amounts of marijuana, even at the level where it’s considered “possession with intent to distribute,” will also see an opportunity for expedited expungement compared to previous wait times. Currently, someone with a criminal record has to wait four years before applying for expungement.
The new wait time will be three years. In addition, you can ask the state to expunge possession charges from your record even if you were charged with other crimes, too — something that typically has not been allowed before.
Will marijuana-related crimes go away?
The short answer, according to law enforcement, is no.
For one, cannabis products can’t be used in public. You’re not supposed to consume while walking down the street, hanging out in a public park or even sitting in the passenger seat of a vehicle while someone else drives. As is the case with drinking alcohol in public, you can be cited.
Likewise, the creation of a legal retail market might not mean the underground drug market will go away.
In other states where it’s already legalized, “the illegal market undercuts the cost of what an actual store [charges] where you would buy it,” Popkin said. “So that market does not go away, and we’ll still have to continue the enforcement efforts on that. Violence does tend to follow marijuana and the drug trade involving those people who want to continue that with … selling of illegal marijuana.
“We are finding that guns and drugs tend to go together, when it comes to the illegal market,” he said. “So law enforcement will continue the enforcement efforts, because otherwise we don’t want an increase in violent crime because of the passage of a new law.”
