Lawmakers may revisit issue of drivers smelling of marijuana

By LUCY HUBBARD 

ANNAPOLIS, Md. – When leaving a meeting at Prince George’s Community College Monday night, the Rev. Robert L. Screen and his wife were shocked when a car drove past them smelling so strongly of marijuana that they both noticed it even with their windows rolled up.

The couple had just left the MD Route 210 Traffic Safety Committee, an organization that Screen founded, when the car drove past. Screen carefully put some distance between him and the other car, as it sped off down the road.

“My wife and I were just taken aback and said, ‘This is the landscape of what we’re going to be dealing with for the future,’” Screen said.

Opponents of a law prohibiting police from using the odor of marijuana as probable cause to stop and search a vehicle or person said these problems are just as they predicted when the law went into effect July 1. Now some of those critics plan to return to the legislature in January to ask that it be changed. At the same time, police are trying to figure out exactly what they can do to marijuana-impaired drivers to keep them off the roads.

The Fines for Smoking in Public, Stops, and Searches law was approved during the final minutes of the 2023 session. Several Republicans wanted to explain their votes but House Speaker Adrienne A. Jones, D-Baltimore, seeing that the General Assembly session’s time was about to expire, pushed the vote through. Jones’ decision prompted an outburst from Del. Nicholaus R. Kipke, R-Anne Arundel, and caused most Republicans to walk off the House floor in protest.

The controversy over the law continues and on Nov. 14, when Maryland’s Joint Republican Caucus announced its 2024 Public Safety Agenda for the upcoming legislative session, included was a provision to overturn the smell search law.

House Minority Whip Jesse Pippy, R-Frederick, said the law limits officers’ ability to police impaired driving.

“When the smell of cannabis smoke is billowing out of a moving vehicle, it is very likely that that driver is under the influence,” Pippy said. “Prohibiting law enforcement from stopping said vehicle is like prohibiting an officer from stopping someone who’s chugging a beer while driving.”

But getting the Democratic majority General Assembly to overturn the provision will be difficult. It was approved because it addressed inequality in traffic stops, which disproportionately impact Black Marylanders.

Del. Jheanelle Wilkins, D-Montgomery, chair of Maryland’s Legislative Black Caucus, and a sponsor of the bill, HB1071, that became the marijuana smell law said the law is essential to protecting the constitutional rights of Marylanders and “it’s unfortunate that our Maryland Republicans will be advocating for warrantless searches of American residents.”

“Passage of HB1071 in 2023 was a top priority for the Legislative Black Caucus of Maryland,” Wilkins said. “And so we will vigorously defend this bill and push back against any effort to reverse or weaken it.”

According to the analysis of the bill at the time, Maryland traffic stop data dating back to 2018 revealed that Black drivers made up at least 60% of traffic stops, while representing just 29% of the state’s population. Black drivers in Maryland were also more than four times as likely to be subject to a warrantless vehicle search than white drivers.

“Cannabis is legal in the state, so someone simply smelling like cannabis, whether they’re just walking down the street or whether it’s the smell in their car, it should not trigger a warrantless search,” Wilkins said. “So, protecting Americans from unreasonable searches and seizures is really a foundational aspect of our constitution in our state.”

Another issue with conducting searches over the odor of marijuana is that hemp, which also derives from the cannabis plant but contains a negligible amount of the psychoactive ingredient THC, smells the same when it is burned. Hemp is not a controlled substance in the United States and is often used in CBD products.

Michael Beach, district public defender for Montgomery County, found while working as a public defender in multiple Maryland jurisdictions that in his experience “the use of the odor of marijuana to search vehicles was disproportionately utilized against Black and brown Marylanders.”

“And I would often only see the cases where they found something,” Beach said. “I can only imagine how many cases there would be where they found nothing and the driver had to suffer the indignity of having their car searched out in public in front of everybody on whatever road they’re on.”

According to Yanet Amanuel, public policy director for the American Civil Liberties Union of Maryland, police used the alleged scent of marijuana as a cover to racially profile Black and brown drivers.

“They’ll racially profile somebody and they’ll say, ‘Oh, I smell marijuana,’ and then suddenly…(they) are allowed to conduct a search,” Amanuel said. “And the thing is, you can’t take the odor to court and prove it, it’s just based on whatever the officer says.”

As of Dec. 8, there have been over 100 roadway fatalities, of 571 total road deaths, in Maryland this year where the driver was impaired, according to the Maryland Department of Transportation’s Crash Data Dashboard.  Maryland is projected to exceed 600 roadway deaths this year for the first time since 2007. Of the roadway fatalities recorded in 2023, nearly 18% were the result of crashes where a driver was impaired by alcohol or drugs.

As of Nov. 16, there have been 4,620 drug-related DUI citations statewide this year, according to law enforcement figures captured through E-Tix Software. It’s unclear how many were marijuana-related.

John Seng, founder of the Maryland Coalition for Roadway Safety, said the legalization of recreational marijuana creates new concerns over impaired driving in Maryland.

“I wished the Maryland General Assembly, when it was dealing with the pressure from the public to approve marijuana for recreational purposes, said not, ‘No,’ but, ‘Not now,’” Seng said. “Not now until we figure the science out so we can police marijuana use and vehicles.”

It is too early to see the change in fatal crashes caused by the legalization of recreational marijuana, Screen said.

“I think it’s an impending storm that has yet to reveal itself,” Screen said.

A 2022 study in the Journal of Studies on Alcohol and Drugs found that Colorado, Washington, Oregon, California and Nevada saw changes in the rate of injuries and fatalities due to car crashes after legalizing recreational marijuana and the start of retail sales. Across five states, there was a 5.8% increase in the rate of traffic crash injuries and a 4.1% increase in the rate of fatal crashes.

There are challenges in even determining marijuana intoxication among drivers. With drivers who are under the influence of alcohol, police can administer a Breathalyzer test, but there is no similar test for determining marijuana impairment. One option is a drug recognition expert – a police officer trained to recognize drug impairment.

“DRE may be requested and they will conduct additional testing sequences to determine…what category drug they may be impaired with,” said Ron Snyder, a spokesperson for the Maryland State Police.

Drug recognition experts have been a part of police departments in Maryland since 1990. There are nearly 190 DREs in Maryland in over 30 agencies. According to the International Association of Chiefs of Police, the agency that coordinates the National Drug Evaluation and Classification Program, there is a 12- step process to determine drug impairment. The process includes interviewing the suspect and the arresting officer, sobriety tests analyzing suspects’ movement and eye convergence, assessing the suspect’s behavior, checking suspects’ vital signs and a toxicological examination.

DREs can request a blood test to determine if the driver is under the influence of drugs. According to Snyder, a blood test is only mandatory if a driver has caused bodily injury or fatality, but refusing a test could mean a suspended license.

There is also no legal limit in Maryland for the amount of marijuana in a drivers’ blood, as there is with alcohol, and the substance is detectable longer, making charges difficult.

“(Marijuana) can also be stored in the fatty deposits and released later,” Belgin Palaz, an assistant public defender in the forensics division said. “And so…the struggle right now hopefully for the legislature…is how do you assess potential impairment given the way that our bodies process delta-9 THC?”

Wilkins said the law should not impact police officers’ ability to police impaired driving.

“When it comes to the DUI issues that people might be concerned about, if someone’s driving erratically and there’s a smell of cannabis, then this law would not apply,” Wilkins said. “I want to be clear, this bill is saying that cannabis alone does not equate to a warrantless search.”

Critics of the law say it also impacts other crime-fighting measures. Pippy cited concerns about the number of illegal guns that were uncovered during traffic stops where the odor of cannabis was the pretext to a search.

“It is more than the safety of the motoring public that is at stake, now that vehicles cannot be stopped and searched due to the smell of cannabis,” Pippy said. “This prohibition also makes it more difficult to get illegal guns off the streets.”

Wilkins disagreed.

“(The law is) based only on the smell of cannabis. That doesn’t prevent a police officer who witnesses criminal activity from doing their job,” Wilkins said. “But what they cannot do is just smell cannabis and, based on that odor, conduct a warrantless search.”