Marijuana possession, sale, and manufacture are regulated by both state and federal law. In Massachusetts, marijuana is classified as a class D substance, and until recently was completely illegal. (Mass. Gen. Laws Ann. § 31.) However, in November 2016 voters passed the Regulation and Taxation of Marijuana Act, effective December 15, 2016. This law decriminalized the possession and use of small amounts of marijuana. (Mass. Gen. Laws Chapter 10, Sections 76 and following.)

For information about charges and penalties for driving under the influence of marijuana in Massachusetts, see Driving Under the Influence of Marijuana in Massachusetts.

Possession of Small Amounts

Massachusetts’ 2016 law intends to regulate the production and distribution of marijuana in the same way it handles alcohol, for persons 21 years of age and older. Specifically, although marijuana may not be used in public, under the new law:

• Adults 21 years of age or older may possess one ounce of marijuana for their personal use when outside their residences, and up to ten ounces (must be in a locked space) inside their residences.
• These adults may grow up to six marijuana plants in an enclosed, locked space within their homes, and may keep the marijuana produced by these plants in their residences.
• It remains illegal to drive under the influence of marijuana, and marijuana cannot be carried in an open container in a vehicle’s passenger area.
• Employers are still at liberty to set and enforce current drug use policies.

Other aspects of the law include:

• A state commission will oversee a system of regulated stores, cultivation facilities, and testing facilities.
• Businesses must test products and follow packaging and labeling protocols.
• The state will tax sales, and localities may add additional taxes (they may also regulate the location of marijuana stores).

Penalties for Small Amount Possession

The 2016 law provides for a range of penalties:

• Cultivating plants that are visible from a public place (without the use of optical aids) or in an area not secured by a lock can result in a fine of no more than $300 and forfeiture of the marijuana.
• Possessing up to one ounce within one’s home but without securing it with a lock subjects the person to a penalty of up to $100 and forfeiture of the marijuana.
• Adults who cultivate more than six but less than 12 plants, or who possess in their residence between one and two ounces, are subject to a $100 penalty and forfeiture of the marijuana.
• Consuming marijuana in a public or otherwise prohibited place subjects the offender to a penalty of up to $100 (exceptions exist for medical marijuana use and any designated place of consumption).
• Having an open container of marijuana in the passenger area of a vehicle subjects the offender to a fine of up to $500.

Possession of Large Amounts

It is a crime to knowingly or intentionally possess large amounts of marijuana in Massachusetts—that is, amounts in excess of those permitted under the Regulation and Taxation of Marijuana Act. A violation is a misdemeanor, punishable with a fine of $500, up to six months in jail, or both. However, for first offenses, the judge will order the defendant to complete a period of probation in lieu of jail time or fines. Upon successful completion of probation, the charges against the defendant will be dropped, and the defendant’s record will be sealed (it won't be a public record). For second and subsequent offenses, the judge may, but is not obligated to impose probation in lieu of jail time or fines. (Mass. Gen. Laws Ann. § 34.)

Cultivation and Sale

It is illegal to knowingly cultivate marijuana plants or to sell marijuana in Massachusetts, unless the activity fall within the small amount exceptions explained above. Violations involving 50 or fewer pounds of marijuana are penalized according to whether the violation is a first or a subsequent offense. Amounts greater than 50 pounds are treated as trafficking crimes, and punished according to the guidelines described in the next section. (Mass. Gen. Laws Ann. § 32C.)

• First offense. Penalties for a first offense include a fine of up between $500 and $5,000, up to two years in prison, or both.
• Second or subsequent offense. For second offenses, the defendant will face a fine between $1,000 and $10,000, between one and two and a half years in prison, or both.

Trafficking

In Massachusetts, “trafficking” includes knowingly cultivating, selling, or bringing more than 50 pounds of marijuana from out of state. Trafficking is illegal, and penalties vary according to the amount of marijuana involved in the offense. (Mass. Gen. Laws Ann. § 32E.)

• Between 50 and 100 pounds. Penalties include a fine between $500 and $10,000, and a mandatory minimum prison sentence of one year (and up to 15 years), or both.
• Between 100 and 2,000 pounds. Penalties include a fine between $2,500 and $25,000, and a mandatory minimum prison sentence of three years (and up to 15 years), or both.
• Between 2,000 and 10,000 pounds. Penalties include a fine between $5,000 and $50,000, and a mandatory minimum prison sentence of five years (and up to 15 years), or both.
• 10,000 pounds or more. Penalties include a fine between $20,000 and $200,000, and a mandatory minimum prison sentence of ten years (and up to 15 years), or both.

Drug Paraphernalia

It is illegal in Massachusetts to possess, use, advertise, or sell drug paraphernalia to minors. Paraphernalia includes items used in growing, harvesting, processing, selling, storing, or using marijuana. Penalties include a fine of between $500 and $5,000, between one and two years in prison, or both.

Under the 2016 Act, adults who furnish paraphernalia to those over the age of 21 years are not guilty of a crime.

Does Massachusetts Impose a Stamp Tax on Marijuana?

Yes. A stamp tax is a tax imposed on certain types of transactions (such as the transfer of property) that requires a stamp to be purchased and attached either to the item sold or to an instrument documenting the transaction (such as a deed). The federal government imposes stamp taxes on deeds, the issue and transfer of stocks and bonds, and on playing cards.

In Massachusetts, those who buy, transport, or import marijuana into Massachusetts, and who are not covered by the 2016 Act, are required to pay a stamp tax and place the stamp (proof of payment) onto the contraband. However, because this level of possession of marijuana is illegal, people typically don’t pay the stamp tax. When you are convicted for possession, you will also be liable for payment of the unpaid taxes ($3.50 for each gram or portion of a gram). (Mass. Gen. Laws Ann. § 8.)

The Value of Local Legal Representation

If you have been charged with a marijuana-related offense, consult an experienced criminal defense attorney. While the penalties and consequences of a marijuana charge are governed by statutory law, only a local criminal defense attorney can tell you how cases like yours tend to be handled by prosecutors and judges in your courthouse.

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