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Cannabis Law

What Is Marijuana?

Marijuana is derived from the cannabis plant and is typically either smoked or eaten. Marijuana is a Schedule I drug according to the Federal Government. Therefore, any use, possession, or distribution is illegal under federal law. However, an increasing number of states have liberalized their marijuana laws and now permit certain types of marijuana use and distribution.

What are Federal Marijuana Laws?

Federal law makes all marijuana use and cultivation illegal. Importantly, federal law preempts state marijuana laws. This means that you can be prosecuted for federal marijuana crimes even if your state legalizes certain types of marijuana possession or distribution. Both the possession and distribution of marijuana are illegal under federal laws on marijuana, specifically, the Controlled Substances Act. Federal law makes it illegal to use, possess, grow and sell marijuana. There is no exception for the medical or so-called “recreational” use of marijuana in federal law. Possession of even a small amount of marijuana is a federal criminal offense. Simple possession with no intent to distribute is a misdemeanor, punishable by up to one year in prison and a fine of up to $1,000.

Almost all states and some municipalities have passed laws legalizing the medical and/or recreational use of marijuana use in recent years. Even growing and distributing marijuana is now legal under state law in certain states. However, if there is a conflict between federal and state law, federal law always prevails.

The medicinal use of marijuana is legal in almost all states in the U.S. today, although marijuana CBD oil, and cannabis oil are all still illegal in the State of Nebraska. Colorado may have the most liberal state laws regarding marijuana. In Colorado, it is legal to possess and use marijuana for medical and recreational purposes. It is legal to transport up to 2 ounces and legal to have as many as six plants growing in one's garden for personal use, more if a person is a commercially licensed grower.

Generally federal law enforcement authorities do not prosecute medical or even recreational marijuana use as long as people adhere to the law of the state in which they live and do not sell marijuana across state lines.

In August of 2013, during the second term of President Obama, the Department of Justice released a memo which stated that the federal government essentially would not interfere with states in which laws had been passed to legalize marijuana to be used for whatever purpose, medical or otherwise.

During the Trump administration, former Attorney General Jeff Sessions had indicated that the federal government would pursue people in violation of federal laws regarding marijuana. As long as the laws are in place, the possibility exists that the federal government could choose to begin enforcing them.

What Amount of Marijuana Do I Have to Carry to be in Violation of Federal Law?

Possession of any amount of marijuana is a misdemeanor offense under federal laws. The question of how much marijuana is a felony only comes into play when a person grows or sells marijuana, but is not relevant when possession is charged.

Following is a list of penalties based on offense per the U.S. sentencing guidelines used by judges to determine the punishment for any amount of marijuana possessed:

  • For a first offense: misdemeanor, up to a year in jail and up to $1,000 in fines;
  • For a second offense: misdemeanor, up to 2 years in jail (with a mandatory minimum of 15 days) and up to $2,500 in fines; and
  • Third offense or more: misdemeanor or felony, up to 3 years in jail, with a mandatory minimum of 90 days, and up to $5,000 in fines.

So what is a mandatory minimum? Mandatory minimums are sentencing laws passed by Congress, which, as the name suggests, require a judge to impose a minimum jail sentence even if a judge were to determine that no jail time is warranted in a particular case.
This means that even if a judge should want to avoid jail time for a particular defendant based on the circumstances of their case, they have no choice but to impose the minimum sentence. Additionally, a person typically cannot seek parole before serving the mandatory minimum sentence.

What are the Legal Consequences of Marijuana Possession?

As noted above, marijuana possession charges are misdemeanors under federal law, however marijuana sentencing for possession involves both jail terms and fines. A first conviction for possession of any amount of marijuana is a misdemeanor punishable by up to a year in jail and up to $1,000 in fines.

A second offense is punishable by a minimum, mandatory sentence of at least 15 days in jail, but a sentence of up to 2 years in jail is possible. Whatever the jail time imposed, fines of up to $2,500 are also possible.

A third offense of possession of any amount of marijuana is punishable by imposition of a mandatory, minimum sentence of 90 days in jail and possibly as long as 3 years in jail, as well as a fine of up to $5,000.

What about Selling and Growing Marijuana?

Growing and selling marijuana is frowned upon by federal law. As one might expect, the penalties for selling or growing marijuana are more strict than the penalties for simple possession. The punishments for selling and cultivating marijuana are as follows:

  • Less than 50 plants (cultivating) or 50 kg (selling): a federal felony, up to five years in jail and up to $250,000 in fines;
  • 50-99 plants or kilograms: a federal felony, up to 20 years in jail and up to $1,000,000 in fines;
  • 100-999 plants or kilograms: a federal felony, 5-40 years in jail and up to $500,000 in fines; and
  • 1,000 or more plants or kilograms: a federal felony, 10 years to life in jail and up to $1,000,000 in fines.

Sales to a minor or within 1,000 feet of a school, youth center, or other protected areas result in doubling of the above penalties. Also, repeat offenders are subject to increased penalties and mandatory minimums.

People convicted of selling marijuana paraphernalia are subject to a penalty of 3 years in jail. Simply possessing paraphernalia is not a crime; however, those caught with paraphernalia are subject to a charge of possession of marijuana, once the paraphernalia items are tested for marijuana residue.

Defenses to Marijuana Possession

Your lawyer may be able to argue:

  • The substance was not actually marijuana: This one may seem like a no-brainer, but the defendant must actually have marijuana to be accused of its possession.
  • Lack of knowledge: The defendant must know that marijuana was under the defendant's control.
  • Lack of control: The defendant had control over the marijuana, either because the drug was in the defendant's physical possession, or the drugs were within the defendant's  constructive presence; the drugs were inside the room with defendant or the defendant had another person holding the drugs for defendant.
  • Medical use: A permit and a doctor's written note are essential.

Every criminal case is different. However, your defense lawyer can tailor his or her arguments to your situation.

Defenses to Marijuana Sales

If you are facing cultivation or distribution charges, your lawyer may be able to argue:

  • The substance was not actually marijuana: Like possession, defendant must actually be carrying marijuana for the sales of the drug to be a crime. However, depending on the laws of your state, a prosecutor may be able to establish intent to distribute or the sale of marijuana even if the defendant is selling what they believe to be marijuana or if the marijuana is not currently in the defendant's possession, but in some other location.
  • No possession: Possession is intertwined with sales of an illegal drug. Selling a drug often means having possession of the drug.
  • Lack of Intent: The defendant must have the intent to sell the drug. This can be established by circumstantial evidence, such as the presence of cash.
  • Medical Use: This defense will not work if you are not licensed to distribute marijuana; note that it is the distributor's intent that is measured, not the users.

Make sure you give your criminal defense lawyer accurate and detailed information about your arrest and activities. This will help the lawyer build the strongest possible defenses in your case.

What If My State Allows Recreational or Medicinal Marijuana?

When it comes to a conflict between federal and state law, federal law prevails. Therefore, while the state in which a person lives might have made it legal to use, possess, grow or even sell marijuana, a person can still be arrested by federal agents and prosecuted under federal law.

As noted above, current federal policy is not to pursue the residents of those states and municipalities in which certain uses of marijuana, e.g. medical or recreational, or even growing and selling marijuana have been legalized as long as residents obey state law and do not distribute marijuana across state lines.

Of course, federal policy can change with changing administrations in the nation's capital, so people want to stay abreast of federal policy regarding marijuana use, possession, growing and distribution.

Would Medical Marijuana Be a Viable Defense?

Medicinal marijuana is marijuana that has been legally prescribed by a doctor for a legitimate medical reason. Similar to recreational marijuana, however, medical marijuana would not be a viable defense in a child custody case. Whether the use of marijuana is for medicinal or recreational purposes, will have no bearing on a court's decision. 

The same can be said of marijuana use even in states where it already has been legalized. The court will make its decision based on the factors discussed above and in accordance with the guidelines set out by the child's best interest standard.

The most important factor that a court will analyze is whether a parent's use of marijuana places the child in any sort of danger. Thus, even if a parent is legally prescribed medicinal marijuana for a legitimate medical condition, the parent must take the same precautions as they would with another potentially dangerous substance, such as pain medication. 

For example, they would need to make sure their marijuana was securely stored or out of their child's reach, and must use it responsibly or as their physician prescribed. Otherwise, it truly makes no difference to a court whether marijuana is legally prescribed or not when awarding child custody.

Is the Use of Marijuana by a Parent Considered Child Endangerment?

Child endangerment is a crime that may refer to when a parent puts their minor child in a situation where death or serious injury is likely to occur. Although the definition of child endangerment will vary based on individual state laws, all parents are responsible for making sure that their child is kept out of unreasonably dangerous situations. Thus, a court may penalize a parent for failing to protect their child and endangering them. 

Whether child endangerment may apply to marijuana use will depend on the facts surrounding each case. For example, a court will most likely deem that blowing marijuana smoke at a child or consistently smoking marijuana in the presence of a child would constitute child endangerment. This is similar to how courts will view parents who consume alcohol irresponsibly or store alcohol in a location that is easily accessible by the child.

In applying this rationale, then it is possible that marijuana use may be included as an activity that would qualify as child endangerment. Some other factors that a court may consider in deciding such cases are whether a child was injured and if the child had access to the drugs.

Do I Need a Lawyer for Help with Federal Marijuana Laws?

If you have been charged with a federal criminal offense in connection with marijuana, you should contact an experienced drug lawyer.

An experienced drug lawyer can give you reliable explanations of the possible punishment for the offense with which you have been charged. They can also negotiate a possible plea agreement with the federal prosecutor and prepare any possible defenses. You are most likely to get the best possible result in your case if you have an experienced drug lawyer representing your interests.

Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.