EXPLANATION: CAPITALS INDICATE MAT TER ADDED TO EXISTING LAW.
[Brackets] indicate matter deleted from existing law.
*sb0784*
SENATE BILL 784
E1 2lr1984
HB 488/21 – JUD CF 2lr2926
By: Senator Carter
Introduced and read first time: February 7, 2022
Assigned to: Judicial Proceedings
A BILL ENTITLED
AN ACT concerning 1
Criminal Law – Use or Possession of a Controlled Dangerous Substance – De 2
Minimis Quantity 3
FOR the purpose of making certain violations relating to the use or possession of certain 4
de minimis quantities of certain controlled dangerous substances a civil offense 5
rather than a misdemeanor; altering a certain provision of law to require a court to 6
order a person who commits a certain violation, regardless of the age of the person, 7
to attend a certain drug education program, refer the person to an assessment for 8
substance use disorder or a mental health assessment, and refer the person to 9
substance use treatment or mental health treatment under certain circumstances; 10
requiring that a certain case proceed in drug court under certain circumstances; and 11
generally relating to use or possession of a controlled dangerous substance. 12
BY repealing and reenacting, with amendments, 13
Article – Criminal Law 14
Section 5–601 and 5–601.1 15
Annotated Code of Maryland 16
(2021 Replacement Volume and 2021 Supplement) 17
SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 18
That the Laws of Maryland read as follows: 19
Article – Criminal Law 20
5–601. 21
(a) IN THIS SECTION , “DE MINIMIS QUANTITY OF A CONTROLLED 22
DANGEROUS SUBSTANCE” MEANS LESS THAN : 23
(1) 10 GRAMS OF MARIJUANA ; 24 2 SENATE BILL 784
(2) 2 GRAMS OF COCAINE ; 1
(3) 1.5 GRAMS OF COCAINE BASE, COMMONLY KNOWN AS “CRACK”; 2
(4) 1 GRAM OF HEROIN ; 3
(5) 1 GRAM OR 5 TABLETS OF 3, 4
4–METHYLENEDIOXYMETHAM PHETAMINE (MDMA); 5
(6) 40 USER UNITS OF LYSERGI C ACID DIETHYLAMIDE (LSD); 6
(7) 40 USER UNITS OF METHAD ONE; 7
(8) 2 GRAMS OF METHAMPHETA MINE; OR 8
(9) 40 TABLETS OF OXYCODONE . 9
(B) Except as otherwise provided in this title, a person may not: 10
(1) possess or administer to another a controlled dangerous substance, 11
unless obtained directly or by prescription or order from an authorized provider acting in 12
the course of professional practice; or 13
(2) obtain or attempt to obtain a controlled dangerous substance, or 14
procure or attempt to procure the administration of a controlled dangerous substance by: 15
(i) fraud, deceit, misrepresentation, or subterfuge; 16
(ii) the counterfeiting or alteration of a prescription or a written 17
order; 18
(iii) the concealment of a material fact; 19
(iv) the use of a false name or address; 20
(v) falsely assuming the title of or representing to be a 21
manufacturer, distributor, or authorized provider; or 22
(vi) making, issuing, or presenting a false or counterfeit prescription 23
or written order. 24
[(b)] (C) Information that is communicated to a physician in an effort to obtain 25
a controlled dangerous substance in violation of this section is not a privileged 26
communication. 27 SENATE BILL 784 3
[(c)] (D) (1) Except as provided in paragraphs (2), (3), and (4) of this 1
subsection, a person who violates this section is guilty of a misdemeanor and on conviction 2
is subject to: 3
(i) for a first conviction, imprisonment not exceeding 1 year or a fine 4
not exceeding $5,000 or both; 5
(ii) for a second or third conviction, imprisonment not exceeding 18 6
months or a fine not exceeding $5,000 or both; or 7
(iii) for a fourth or subsequent conviction, imprisonment not 8
exceeding 2 years or a fine not exceeding $5,000 or both. 9
(2) (i) Except as provided in subparagraph (ii) of this paragraph, a 10
person whose violation of this section involves the use or possession of marijuana is guilty 11
of the misdemeanor of possession of marijuana and is subject to imprisonment not 12
exceeding 6 months or a fine not exceeding $1,000 or both. 13
(ii) 1. A first finding of guilt under this section involving the use 14
or possession of [less than 10 grams of marijuana] A DE MINIMIS QUANTIT Y OF A 15
CONTROLLED DANGEROUS SUBSTANCE is a civil offense punishable by a fine not 16
exceeding $100. 17
2. A second finding of guilt under this section involving the 18
use or possession of [less than 10 grams of marijuana] A DE MINIMIS QUANTIT Y OF A 19
CONTROLLED DANGEROUS SUBSTANCE is a civil offense punishable by a fine not 20
exceeding [$250] $150. 21
3. A third or subsequent finding of guilt under this section 22
involving the use or possession of less than 10 grams of marijuana is a civil offense 23
punishable by a fine not exceeding [$500] $200. 24
4. A. In addition to a fine, a court shall order a person 25
[under the age of 21 years] who commits a violation punishable under subsubparagraph 1, 26
2, or 3 of this subparagraph to attend a drug education program approved by the Maryland 27
Department of Health, refer the person to an assessment for substance [abuse] USE 28
disorder OR A MENTAL HEALTH A SSESSMENT, and refer the person to substance [abuse] 29
USE treatment OR MENTAL HEALTH TRE ATMENT, if necessary. 30
B. [In addition to a fine, a court shall order a person at least 31
21 years old who commits a violation punishable under subsubparagraph 3 of this 32
subparagraph to attend a drug education program approved by the Maryland Department 33
of Health, refer the person to an assessment for substance abuse disorder, and refer the 34
person to substance abuse treatment, if necessary. 35
4 SENATE BILL 784
C.] A court that orders a person to a drug education program 1
or substance [abuse] USE OR MENTAL HEALTH assessment or treatment under this 2
subsubparagraph may hold the case sub curia pending receipt of proof of completion of the 3
program, assessment, or treatment. 4
(3) (i) 1. In this paragraph the following words have the meanings 5
indicated. 6
2. “Bona fide physician–patient relationship” means a 7
relationship in which the physician has ongoing responsibility for the assessment, care, and 8
treatment of a patient’s medical condition. 9
3. “Caregiver” means an individual designated by a patient 10
with a debilitating medical condition to provide physical or medical assistance to the 11
patient, including assisting with the medical use of marijuana, who: 12
A. is a resident of the State; 13
B. is at least 21 years old; 14
C. is an immediate family member, a spouse, or a domestic 15
partner of the patient; 16
D. has not been convicted of a crime of violence as defined in 17
§ 14–101 of this article; 18
E. has not been convicted of a violation of a State or federal 19
controlled dangerous substances law; 20
F. has not been convicted of a crime of moral turpitude; 21
G. has been designated as caregiver by the patient in writing 22
that has been placed in the patient’s medical record prior to arrest; 23
H. is the only individual designated by the patient to serve as 24
caregiver; and 25
I. is not serving as caregiver for any other patient. 26
4. “Debilitating medical condition” means a chronic or 27
debilitating disease or medical condition or the treatment of a chronic or debilitating 28
disease or medical condition that produces one or more of the following, as documented by 29
a physician with whom the patient has a bona fide physician–patient relationship: 30
A. cachexia or wasting syndrome; 31
B. severe or chronic pain; 32 SENATE BILL 784 5
C. severe nausea; 1
D. seizures; 2
E. severe and persistent muscle spasms; or 3
F. any other condition that is severe and resistant to 4
conventional medicine. 5
(ii) 1. In a prosecution for the use or possession of marijuana, the 6
defendant may introduce and the court shall consider as a mitigating factor any evidence 7
of medical necessity. 8
2. Notwithstanding paragraph (2) of this subsection, if the 9
court finds that the person used or possessed marijuana because of medical necessity, the 10
court shall dismiss the charge. 11
(iii) 1. In a prosecution for the use or possession of marijuana 12
under this section, it is an affirmative defense that the defendant used or possessed 13
marijuana because: 14
A. the defendant has a debilitating medical condition that 15
has been diagnosed by a physician with whom the defendant has a bona fide 16
physician–patient relationship; 17
B. the debilitating medical condition is severe and resistant 18
to conventional medicine; and 19
C. marijuana is likely to provide the defendant with 20
therapeutic or palliative relief from the debilitating medical condition. 21
2. A. In a prosecution for the possession of marijuana 22
under this section, it is an affirmative defense that the defendant possessed marijuana 23
because the marijuana was intended for medical use by an individual with a debilitating 24
medical condition for whom the defendant is a caregiver. 25
B. A defendant may not assert the affirmative defense under 26
this subsubparagraph unless the defendant notifies the State’s Attorney of the defendant’s 27
intention to assert the affirmative defense and provides the State’s Attorney with all 28
documentation in support of the affirmative defense in accordance with the rules of 29
discovery provided in Maryland Rules 4–262 and 4–263. 30
3. An affirmative defense under this subparagraph may not 31
be used if the defendant was: 32
A. using marijuana in a public place or assisting the 33 6 SENATE BILL 784
individual for whom the defendant is a caregiver in using the marijuana in a public place; 1
or 2
B. in possession of more than 1 ounce of marijuana. 3
(4) A violation of this section involving the smoking of marijuana in a 4
public place is a civil offense punishable by a fine not exceeding $500. 5
[(d)] (E) The provisions of subsection [(c)(2)(ii)] (D)(2)(II) of this section making 6
the possession of [marijuana] A DE MIMINIS QUANTIT Y OF A CONTROLLED DA NGEROUS 7
SUBSTANCE a civil offense may not be construed to affect the laws relating to: 8
(1) operating a vehicle or vessel while under the influence of or while 9
impaired by a controlled dangerous substance; or 10
(2) seizure and forfeiture. 11
[(e)] (F) (1) (i) Before imposing a sentence under subsection [(c)] (D) of 12
this section, the court may order the Maryland Department of Health or a certified and 13
licensed designee to conduct an assessment of the defendant for substance use disorder and 14
determine whether the defendant is in need of and may benefit from drug treatment. 15
(ii) If an assessment for substance use disorder is requested by the 16
defendant and the court denies the request, the court shall state on the record the basis for 17
the denial. 18
(2) On receiving an order under paragraph (1) of this subsection, the 19
Maryland Department of Health, or the designee, shall conduct an assessment of the 20
defendant for substance use disorder and provide the results to the court, the defendant or 21
the defendant’s attorney, and the State identifying the defendant’s drug treatment needs. 22
(3) The court shall consider the results of an assessment performed under 23
paragraph (2) of this subsection when imposing the defendant’s sentence and: 24
(i) except as provided in subparagraph (ii) of this paragraph, the 25
court shall suspend the execution of the sentence and order probation and, if the 26
assessment shows that the defendant is in need of substance [abuse] USE treatment, 27
require the Maryland Department of Health or the designee to provide the medically 28
appropriate level of treatment as identified in the assessment; or 29
(ii) the court may impose a term of imprisonment under subsection 30
[(c)] (D) of this section and order the Division of Correction or local correctional facility to 31
facilitate the medically appropriate level of treatment for the defendant as identified in the 32
assessment. 33
5–601.1. 34 SENATE BILL 784 7
(a) IN THIS SECTION , “DE MINIMIS QUANTITY OF A CONTROLLED 1
DANGEROUS SUBSTANCE ” HAS THE MEANING STAT ED IN § 5–601 OF THIS SUBTITLE. 2
(B) A police officer shall issue a citation to a person who the police officer has 3
probable cause to believe has committed a violation of § 5–601 of this part involving the use 4
or possession of [less than 10 grams of marijuana] A DE MINIMIS QUANTIT Y OF A 5
CONTROLLED DANGEROUS SUBSTANCE. 6
[(b)] (C) (1) A violation of § 5–601 of this part involving the use or possession 7
of [less than 10 grams of marijuana] A DE MINIMIS QUANTIT Y OF A CONTROLLED 8
DANGEROUS SUBSTANCE is a civil offense. 9
(2) Adjudication of a violation under § 5–601 of this part involving the use 10
or possession of [less than 10 grams of marijuana] A DE MINIMIS QUANTIT Y OF A 11
CONTROLLED DANGEROUS SUBSTANCE: 12
(i) is not a criminal conviction for any purpose; and 13
(ii) does not impose any of the civil disabilities that may result from 14
a criminal conviction. 15
[(c)] (D) (1) A citation issued for a violation of § 5–601 of this part involving 16
the use or possession of [less than 10 grams of marijuana] A DE MINIMIS QUANTIT Y OF A 17
CONTROLLED DANGEROUS SUBSTANCE shall be signed by the police officer who issues 18
the citation and shall contain: 19
(i) the name, address, and date of birth of the person charged; 20
(ii) the date and time that the violation occurred; 21
(iii) the location at which the violation occurred; 22
(iv) the fine that may be imposed; 23
(v) a notice stating that prepayment of the fine is allowed, except as 24
provided in paragraph (2) of this subsection; and 25
(vi) a notice in boldface type that states that the person shall: 26
1. pay the full amount of the preset fine; or 27
2. request a trial date at the date, time, and place established 28
by the District Court by writ or trial notice. 29
(2) (i) If a citation for a violation of § 5–601 of this part involving the 30 8 SENATE BILL 784
use or possession of [less than 10 grams of marijuana] A DE MINIMIS QUANTIT Y OF A 1
CONTROLLED DANGEROUS SUBSTANCE is issued to a person under the age of 21 years, 2
the court shall summon the person for trial. 3
(ii) If the court finds that a person at least 21 years old who has been 4
issued a citation under this section has at least twice previously been found guilty under § 5
5–601 of this part involving the use or possession of [less than 10 grams of marijuana] A 6
DE MINIMIS QUANTITY OF A CONTROLLED DANGEROUS SUBSTANCE, the court shall 7
summon the person for trial. 8
[(d)] (E) The form of the citation shall be uniform throughout the State and shall 9
be prescribed by the District Court. 10
[(e)] (F) (1) The Chief Judge of the District Court shall establish a schedule 11
for the prepayment of the fine. 12
(2) Prepayment of a fine shall be considered a plea of guilty to a Code 13
violation. 14
(3) A person described in subsection [(c)(2)] (D)(2) of this section may not 15
prepay the fine. 16
[(f)] (G) (1) A person may request a trial by sending a request for trial to the 17
District Court in the jurisdiction where the citation was issued within 30 days of the 18
issuance of the citation. 19
(2) If a person other than a person described in subsection [(c)(2)] (D)(2) 20
of this section does not request a trial or prepay the fine within 30 days of the issuance of 21
the citation, the court may impose the maximum fine and costs against the person and find 22
the person is guilty of a Code violation for purposes of subsection [(c)(2)(ii)] (D)(2)(II) of 23
this section. 24
[(g)] (H) (1) The issuing jurisdiction shall forward a copy of the citation and 25
a request for trial to the District Court in the district having venue. 26
(2) THE CASE SHALL PROCEED IN DRU G COURT, IF THE 27
DISTRICT COURT IN THE DISTRICT HAVING VENUE HAS A DRUG COURT . 28
[(h)] (I) (1) The failure of a defendant to respond to a summons described in 29
subsection [(c)(2)] (D)(2) of this section shall be governed by § 5–212 of the Criminal 30
Procedure Article. 31
(2) If a person at least 21 years old fails to appear after having requested 32
a trial, the court may impose the maximum fine and costs against the person and find the 33
person is guilty of a Code violation for purposes of subsection [(c)(2)(ii)] (D)(2)(II) of this 34
section. 35 SENATE BILL 784 9
[(i)] (J) In any proceeding for a Code violation under § 5–601 of this part 1
involving the use or possession of [less than 10 grams of marijuana] A DE MINIM IS 2
QUANTITY OF A CONTRO LLED DANGEROUS SUBST ANCE: 3
(1) the State has the burden to prove the guilt of the defendant by a 4
preponderance of the evidence; 5
(2) the court shall apply the evidentiary standards as prescribed by law or 6
rule for the trial of a criminal case; 7
(3) the court shall ensure that the defendant has received a copy of the 8
charges against the defendant and that the defendant understands those charges; 9
(4) the defendant is entitled to cross–examine all witnesses who appear 10
against the defendant, to produce evidence or witnesses on behalf of the defendant, and to 11
testify on the defendant’s own behalf, if the defendant chooses to do so; 12
(5) the defendant is entitled to be represented by counsel of the defendant’s 13
choice and at the expense of the defendant; and 14
(6) the defendant may enter a plea of guilty or not guilty, and the verdict 15
of the court in the case shall be: 16
(i) guilty of a Code violation; 17
(ii) not guilty of a Code violation; or 18
(iii) probation before judgment, imposed by the court in the same 19
manner and to the same extent as is allowed by law in the trial of a criminal case. 20
[(j)] (K) (1) The defendant is liable for the costs of the proceedings in the 21
District Court. 22
(2) The court costs in a Code violation case under § 5–601 of this part 23
involving the use or possession of [less than 10 grams of marijuana] A DE MINIMIS 24
QUANTITY OF A CONTRO LLED DANGEROUS SUBST ANCE in which costs are imposed are 25
$5. 26
[(k)] (L) (1) The State’s Attorney for any county may prosecute a Code 27
violation under § 5–601 of this part involving the use or possession of [less than 10 grams 28
of marijuana] A DE MINIMIS QUANTIT Y OF A CONTROLLED DA NGEROUS SUBSTANCE 29
in the same manner as prosecution of a violation of the criminal laws of the State. 30
(2) In a Code violation case under § 5–601 of this part involving the use or 31
possession of [less than 10 grams of marijuana] A DE MINIMIS QUANTIT Y OF A 32 10 SENATE BILL 784
CONTROLLED DANGEROUS SUBSTANCE, the State’s Attorney may: 1
(i) enter a nolle prosequi or move to place the case on the stet docket; 2
and 3
(ii) exercise authority in the same manner as prescribed by law for 4
violation of the criminal laws of the State. 5
[(l)] (M) A person issued a citation for a violation of § 5–601 of this part involving 6
the use or possession of [less than 10 grams of marijuana] A DE MINIMIS QUANTIT Y OF A 7
CONTROLLED DANGEROUS SUBSTANCE who is under the age of 18 years shall be subject 8
to the procedures and dispositions provided in Title 3, Subtitle 8A of the Courts Article. 9
[(m)] (N) A citation for a violation of § 5–601 of this part involving the use or 10
possession of [less than 10 grams of marijuana] A DE MINIMIS QUANTIT Y OF A 11
CONTROLLED DANGERO US SUBSTANCE and the official record of a court regarding the 12
citation are not subject to public inspection and may not be included on the public website 13
maintained by the Maryland Judiciary if: 14
(1) the defendant has prepaid the fine; 15
(2) the defendant has pled guilty to or been found guilty of the Code 16
violation and has fully paid the fine and costs imposed for the violation; 17
(3) the defendant has received a probation before judgment and has fully 18
paid the fine and completed any terms imposed by the court; 19
(4) the case has been removed from the stet docket after the defendant fully 20
paid the fine and completed any terms imposed by the court; 21
(5) the State has entered a nolle prosequi; 22
(6) the defendant has been found not guilty of the charge; or 23
(7) the charge has been dismissed. 24
SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect 25
October 1, 2022. 26