A marijuana arrest today can be accompanied by a wide range of penalties, depending on the jurisdiction, state to state and even city to city. As marijuana laws evolve on a state by state basis, so too does the confusion around marijuana's legal status and marijuana-related arrests. An experienced marijuana defense lawyer can help you navigate the court system and answer any questions you have about your arrest as it relates to marijuana. At Leaf Legal, P.C., we provide smart, aggressive criminal defense to persons arrested for marijuana.
Marijuana Arrests: Federal v. State
Though some states have legalized marijuana for medicinal purposes and/or recreational purposes while federally it remains illegal. If you consume marijuana in any of its forms or derivatives, whether for medicinal or recreational purposes, you should know the difference between federal and state laws and the conditions that could find you arrested -- even if you thought you were consuming, possessing, manufacturing, or distributing marijuana legally.
Federal Marijuana Laws v. State Cannabis Laws
Federal law bans marijuana in any of its forms and for any of its purposes as a Schedule I drug, defined by the 1970 Controlled Substances Act. As a Schedule I drug, the U.S. government deems marijuana as a drug with high potential for abuse with no medical value.
Under the Obama Administration (2008-2016), a relaxed marijuana enforcement policy was implemented. Through what is known as the Cole Memorandum, the Justice Department basically paved the way for states to determine respective legal approaches to the marijuana industry without fear the federal government would intervene.
That federal policy changed when Attorney General Sessions issued a memo on January 4, 2018, rescinding Obama Administration policies on marijuana enforcement. Now, the federal government can pursue action against businesses and organizations in the marijuana industry, even if these same businesses comply with state law. The Sessions memo authorizes federal prosecutors to determine what to prosecute in each state, including states where it is legal for medicinal or recreational purposes. If you are arrested by a federal agency, then you could face criminal charges. The following chart identifies marijuana federal laws and associated penalties.
|
Offense |
Class |
Incarceration |
Max. Fine (individuals) |
Simple Possession, 21 U.S.C.A. §844 |
|||
|
Any amount (first offense) |
misdemeanor |
Up to 1 year |
$ 1,000 |
|
Any amount (second offense) |
misdemeanor |
15 days* - 2 years |
$ 2,500 |
|
Any amount (subsequent offense) |
misdemeanor or felony |
90 days* - 3 years |
$ 5,000 |
Manufacture and Delivery of Marijuana, 21 U.S.C. §841 |
|||
|
Less than 50 plants/kg |
felony |
Up to 5 years |
$ 250,000 |
|
50 - 99 plants/kg |
felony |
Up to 20 years |
$ 1,000,000 |
|
100 - 999 plants/kg |
felony |
5 to 40 years |
$ 500,000 |
|
1000 plants/kg or more |
felony |
10 years to life |
$ 1,000,000 |
Penalties for Marijuana Paraphernalia, 21 U.S.C. §863 |
|||
|
Sale of paraphernalia |
felony |
3 years |
N/A |
Unlike the federal government, states are increasingly tolerant of decriminalization or legalization of marijuana to some extent. Of course, the laws vary widely state to state, especially with respect to specific details of its legality and associated penalties. If you live in one of the 34 states -- including Washington, D.C. -- where it is legal for medicinal and/or recreational purposes, there are still limits to what is permissible. On top of that, with the rescission of the Cole Memorandum, if you encounter law enforcement and are in possession of marijuana, you can be charged, even though the quantity and purpose of possession were legal in accordance with state law.
For persons who are in state programs for medicinal marijuana purposes, there is some protection from law enforcement. The 2014 Rohrabacher-Blumenauer Amendment to the federal budget protects states with legal medical marijuana laws from prosecution by the Department of Justice, but this amendment must be approved on an annual basis simultaneous to the annual budget.
When is state or federal law enforced?
According to the U.S. Constitution supremacy clause (Article VI), federal legislation has priority over state legislation when the two do not agree. It can be a complex relationship, but it essentially comes down to whether or not federal prosecutors will pursue your case if you are arrested and charged with a marijuana crime.
How do you get arrested in a state where marijuana is legal?
Whether or not marijuana is legal or decriminalized in your state, you still run the risk of being charged with a marijuana-related offense no matter your location so long as the law enforcement agent you encounter decides to arrest you. There is particular risk of arrest if you consume marijuana and are federally employed or if you are in possession of marijuana on federal property (e.g., national park) within a state where marijuana is legal.
Potential Defenses to Marijuana Charges
If you are arrested and charged with a marijuana offense, there could be defenses available to you. These defenses include:
- Illegal Stop or Search. Law enforcement must have a constitutional basis for stopping you on the street or pulling you over for a traffic stop. If not, then any evidence found flowing from that illegal stop and/or search can generally be suppressed by motion. According to the Supreme Court decision Rodriguez v. United States, dog sniffing to detect drugs at a traffic stop is also illegal if reasonable suspicion of a crime was not present.
- Illegal Surveillance. Similar to an illegal stop or search, law enforcement must possess a legal purpose to surveil you, and absent it, your criminal defense lawyer will argue charges should be dropped.
- Invalid Search Warrant. If the search warrant was invalid, then evidence flowing from it can be suppressed. Reasons for invalidity include absence of probable cause, incomplete or otherwise false information, unreliable informant, the police officer(s) exceeding the scope of the warrant, or untimely execution of the warrant.
- Lack of Possession. The prosecutor must prove that you were either in actual or constructive possession of the marijuana. Two strategies that work well here include unwitting possession, i.e., you were unaware of possession, or fleeting possession, i.e., you never had dominion and control over the marijuana.
- Legal Possession of Marijuana. If you were in possession of marijuana legally for medical purposes, then the prosecutor should not be able to pursue a charge against you so long as the 2014 Rohrabacher-Blumenauer Amendment is in effect.
Even if none of these defenses are applicable, an experienced criminal defense attorney will put forth a strategy to counter and weaken the prosecutor's case against you. Remember: in a socio-economic environment increasingly growing tolerant and supportive of the marijuana industry, the prosecutor must satisfy all elements of the crime before a judge or jury can find you guilty beyond a reasonable doubt. And your defense lawyer aims to use various legal tools to create that reasonable doubt.
Contact Leaf Legal, P.C. Today
Getting arrested for marijuana-related crimes today can be confusing. The marijuana legal team at Leaf Legal, P.C. can help you fight current criminal charges. Contact us online or call today at 212-933-9420 to request a free consultation and learn more.