Marijuana Possession: Laws & Penalties

According to government reports, marijuana is the most commonly used illegal drug in America and over 80 million Americans have tried it. Despite its popularity, there is nowhere in the United States where it is ‘legal’ to possess marijuana. Some states have passed medical marijuana laws permitting possession under certain circumstances, and some state laws have decriminalized marijuana, typically making possession of small amounts punishable by fines or treated as infractions. But in all states, it is still a violation of federal law – which classifies marijuana as a controlled substance -- to possess marijuana. This conflict may someday be resolved by federal legislation but for now, federal and state law are often at odds with each other, as discussed below.

Primary Factors Affecting Punishment

If you have been arrested for possession of marijuana, the key factors that will affect the outcome of your case are as follows:

State or Federal Jurisdiction. Were you arrested by federal or state law enforcement officials? If you were arrested for possession by state law enforcement, you will need to review your state’s laws. If you were arrested by federal law enforcement, most likely you were targeted for arrest because your possession was in connection with other violations such as drug trafficking, large scale grow operations, ties to criminal enterprises, or violent activities or unlawful possession of firearms. Under federal law, possession by itself is a misdemeanor punishable by up to one year in prison and up to $1,000 fine for first offense. When possession is tied with sale or other criminal enterprises federal penalties are much harsher and categorized as felonies. Federal prosecutors may also prosecute as marijuana crimes conduct that is legal under a state’s law. This is not common, but the rise in medical marijuana laws has prompted the federal government to periodically reevaluate its enforcement policies.

Decriminalization. Has your state decriminalized marijuana? Fourteen states have done so: Alaska, California, Colorado Connecticut, Maine, Massachusetts, Minnesota, Mississippi, Nebraska, Nevada, New York, North Carolina, Ohio, and Oregon. Decriminalization means that possession of a small quantity of marijuana for personal use is an infraction, a minor violation akin to a traffic ticket. Typically, violators are subject only to a small fine and first time offenders usually have no criminal record. In states that have decriminalized marijuana, offenders receive citations but they are not arrested unless they possess large amounts or are repeat offenders. In Alaska, which has the most liberal decriminalization laws, there is no penalty for possession of one ounce or less in a person’s residence.

How much? Punishment for marijuana possession typically varies according to the quantity of marijuana possessed. Possession of marijuana almost always constitutes a felony rather than a misdemeanor when the quantity is large enough to indicate that it is held for sale rather than for personal use. In almost all states, possession of amounts greater than one kilogram can result in felony offenses which carry a much more significant penalty. These felony charges can also include the growing, cultivation, manufacturing or sale of marijuana or marijuana drug paraphernalia.

Medical marijuana. Are you certified as part of a state medical marijuana program? Eighteen states have passed laws permitting possession of marijuana for medical purposes. These include: Alaska, Arizona, California, Colorado, Delaware, District of Columbia, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. Typically these state laws remove criminal penalties for possession to those people who have qualified and have written certification from a physician.

Other Factors Enhancing Punishment

Certain additional factors may affect the punishment for possession. These include

• Do you have a previous criminal record or is this a second or third offense for possession?
• Did you sell or give marijuana to minors, or were you arrested for possession near a school, public park or similar community locale? In some states, this may results in enhanced punishment.
• Was the arrest made in connection with a driving infraction? Many states have DUID (driving under the influence of drugs) laws that include marijuana. See Driving Under the Influence of Marijuana for more information.
• Was the possession for plants or harvested marijuana? State laws may differ as to punishment regarding possession of plants versus possession of cut marijuana.
• Did you have drug paraphernalia. State laws differ as to the legality of drug paraphernalia such as pipes, scales, bongs or other devices.

Marijuana Possession Penalties

For those charged with possession of under 1 kilogram of marijuana, not for resale or distribution, the misdemeanor marijuana possession charges are lowest for first offenders and then increase in their severity. In situations where the charge is based on sales of drug paraphernalia, the penalties can be increased to a felony if the item is sold to a minor child. Depending on the factors listed above, the penalties for possession can include:

• a fine (typically up to $2000)
• jail time (typically less than one year in jail)
• mandatory drug testing
• drug awareness classes
• probation
• electronic monitoring

Marijuana Possession Sentencing

Although possession of marijuana is typically not considered as serious as other types of drug or controlled substance charges, judges have sometimes imposed fairly stiff sentences even on first time offenders. As noted, the individual's age, prior convictions and overall standing in the community are typically taken into consideration as to what type of sentence is the most effective. For those that have a driver's license, suspension of the license can also occur and may be ordered by judges under specific situations. An attorney can assist in minimizing the sentence by working with the prosecuting attorney to plea bargain or agree to a treatment program rather than a conviction.

Marijuana Laws by State

Choose your state from the list below to find information about your states laws regarding marijuana use.

Get Legal Help For a Marijuana Possession Charge

Marijuana possession is a serious charge, even if it is at the misdemeanor level. With this type of conviction on your record, your ability to obtain employment under certain circumstances may be limited. Working with an experienced criminal defense attorney can provide options for lowering the charges or even arranging probation instead of jail time, with the option to later have your record expunged.