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Definition of Marijuana Law & Defenses

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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.

Federal Marijuana Prosecution

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.

If you are convicted of federal marijuana crimes, you may face significant jail time and financial penalties. And, federal sentencing guidelines include mandatory minimums for certain marijuana and drug offenses.

State Marijuana Prosecution

State marijuana laws vary dramatically. However, there has been a trend towards decriminalizing and regulating certain types of marijuana use. Currently:

  • 44 states have medical marijuana programs,
  • Eight states (and the District of Columbia) permit some recreational marijuana use, and
  • 13 states have decriminalized first-time possession offenses have been decriminalized (You will not face jail time for your first marijuana possession—as long as you were carrying a small amount and were not distributing it to others. Instead, a modest fine will be charged).

However, even if your marijuana use is legal under state law, you can still face criminal charges. For example, operating a vehicle under the influence of marijuana is illegal—even if you have a medical marijuana license.

And, more significant marijuana misdemeanors and felonies have stricter penalties. If convicted of selling or cultivating large amounts of marijuana, you may face prolonged incarceration and significant fines. If you have questions about your state’s current marijuana laws, contact an experienced criminal defense lawyer.

Are There Any Defenses I Could Use If I Am Accused of Possessing or Selling Marijuana?

If you are charged with marijuana crimes, you may have a variety of defenses. In addition to more traditional drug-related defenses, you may be able to offer your medical marijuana license as a defense. However, a medical marijuana license is never a defense under federal law. 

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.

Should I Hire an Attorney for Marijuana Issues?

If you have been accused of or arrested for possessing or selling marijuana, you should seriously consider hiring of a criminal defense attorney. Marijuana charges can carry serious penalties. The advice of a defense attorney may help you understand your rights and navigate the criminal justice system.

Photo of page author Leigh Ebrom

, LegalMatch Legal Writer

Last Modified: 06-07-2018 06:36 PM PDT

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