Defenses to Marijuana Possession and Sales

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 What Is the Legal Definition of Marijuana?

Marijuana is a common name for the cannabis plant, which contains hundreds of chemicals called cannabinoids.

The most well-known cannabinoid is tetrahydrocannabinol (THC), which is responsible for the psychoactive effects of marijuana, such as euphoria, relaxation, and altered perception. Marijuana can be smoked, vaporized, eaten, or brewed as a tea.

Legal Definition of Marijuana

The legal definition of marijuana varies by jurisdiction and context. In the United States, marijuana is a Schedule I substance under the federal Controlled Substances Act, which means that it has no accepted medical use and a high potential for abuse. However, some states have legalized marijuana for medical or recreational purposes, creating a conflict between state and federal laws.

According to the federal law, marijuana is defined as:

  • All parts of the plant Cannabis sativa L., whether growing or not;
  • The seeds thereof;
  • The resin extracted from any part of such plant:
    • Every compound;
    • Manufacture;
    • Salt;
    • Derivative;
    • Mixture;
    • Preparation of such plant;
    • Its seeds; or
    • Resin.

Such term does not include:

  • The mature stalks of such plant;
  • Fiber produced from such stalks;
  • Oil or cake made from the seeds of such plant:
    • Any other compound;
    • Manufacture;
    • Salt;
    • Derivative;
    • Mixture;
    • Preparation of such mature stalks (except the resin extracted therefrom);
    • Fiber;
    • Oil;
    • Cake; or
    • The sterilized seed of such plant which is incapable of germination.

This definition excludes hemp, which is a variety of cannabis that contains very low levels of THC and is used for industrial purposes. Hemp is regulated by the U.S. Department of Agriculture under the 2018 Farm Bill.

Synthetic Marijuana

Synthetic marijuana is a term used to describe products that mimic the effects of marijuana but are made from synthetic chemicals that are sprayed on plant material or sold as liquids. These products are often marketed as herbal incense, spice, K2, or potpourri and sold in convenience stores or online.

How Can a Criminal Defense Lawyer Help with Marijuana Issues?

If you are facing criminal charges related to marijuana possession, use, cultivation, distribution, or trafficking, you should consult a criminal defense lawyer who can help you understand your rights and options.

A criminal defense lawyer can:

  • Review the facts and evidence of your case and identify any possible defenses or mitigating factors;
  • Challenge the legality or validity of any searches, seizures, arrests, or confessions that may have violated your constitutional rights;
  • Negotiate with the prosecutors for a plea bargain or a diversion program that may reduce your charges or penalties;
  • Represent you in court if your case goes to trial and advocate for your best interests;
  • Advise you on the consequences of a conviction on your record and your eligibility for expungement or sealing.

A criminal defense lawyer can also help you navigate the complex and conflicting laws regarding marijuana at the federal and state levels. Depending on where you live and what type of marijuana activity you are involved in, you may face different legal risks and challenges.

A criminal defense lawyer can help you comply with the applicable laws and regulations and avoid any potential pitfalls.

Is Marijuana Legal?

The legality of marijuana depends on where you are and what purpose you are using it for.

Some of the states that have legalized marijuana for recreational use are:

  • Alaska;
  • Arizona;
  • California;
  • Colorado;
  • District of Columbia;
  • Illinois;
  • Maine;
  • Massachusetts;
  • Michigan;
  • Montana;
  • Nevada;
  • New Jersey;
  • New Mexico;
  • New York;
  • Oregon;
  • Vermont;
  • Virginia;
  • Washington.

Some of the states that have legalized marijuana for medical use are:

  • Alabama;
  • Arkansas;
  • Connecticut;
  • Florida;
  • Hawaii;
  • Louisiana;
  • Maryland;
  • Minnesota;
  • North Dakota;
  • Oklahoma;
  • South Dakota.

Types of Criminal Charges for Marijuana

Depending on the jurisdiction and the amount and type of marijuana involved, a person may face different types of criminal charges for possessing, using, cultivating, or distributing marijuana. Some of the common types of charges are:

  • Possession: This is the charge for having marijuana on one’s person, property, or vehicle. The penalties may vary depending on the quantity, location, and prior convictions. Possession may be a misdemeanor or a felony and may result in fines, probation, community service, or jail time.
  • Cultivation: This is the charge for growing marijuana plants or producing marijuana products. The penalties may depend on the number of plants, the size of the operation, and the intent to sell or distribute. Cultivation may be a misdemeanor or a felony and may result in fines, forfeiture of property, or prison time.
  • Distribution: This is the charge for selling, delivering, transporting, or giving away marijuana to another person. The penalties may depend on the amount, the recipient, and the involvement in a larger network or organization. Distribution may be a misdemeanor or a felony and may result in fines, restitution, or prison time.
  • Trafficking: The charge for moving large quantities of marijuana across state or national borders or engaging in organized crime related to marijuana. The penalties may depend on the weight, the destination, and the level of participation. Trafficking is usually a felony and may result in hefty fines, asset seizure, or lengthy prison sentences.

Federal Marijuana Prosecution

Under federal law, the possession, distribution, or manufacture of marijuana is a crime. Additionally, the severity of potential penalties typically depends on the amount of marijuana involved and the specific nature of the offense. Marijuana misdemeanors and felonies include:

  • Possession: Simple possession (without the intent to distribute) of a small amount of marijuana is typically charged as a misdemeanor under federal law. For a first offense, this can result in up to one year in prison and a minimum fine of $1,000.
  • Cultivation and Distribution: Cultivating marijuana plants or selling any amount of marijuana is a more serious offense. Depending on the quantity involved, penalties can range from 5 years to life in prison and fines from $250,000 to $10 million for individuals. Higher fines apply to groups.
  • Intent to Distribute: Being caught in possession of a large amount of marijuana, or possessing marijuana along with items like scales, baggies, or other drug paraphernalia, can lead to charges of possession with intent to distribute, which is a felony under federal law.
  • Continuing Criminal Enterprise: If someone is engaged in a large-scale operation to cultivate, manufacture, or distribute marijuana, they could be charged with operating a continuing criminal enterprise, which carries a mandatory minimum sentence of 20 years to life and a fine of up to $2 million for individuals.

Federal laws apply everywhere in the United States, regardless of state laws. That means even if you live in a state where marijuana is legal for medical or recreational purposes, you can still technically be prosecuted under federal law.

State Marijuana Prosecution

State laws vary widely in how they classify and punish marijuana offenses. Some states have legalized marijuana for medical or recreational purposes, while others have decriminalized or reduced the penalties for small amounts of marijuana possession. However, some states still impose harsh penalties for any marijuana activity, especially for large quantities or sales.

Generally, state laws categorize marijuana offenses as either misdemeanors or felonies, depending on the amount and type of marijuana involved, the intent of the offender, and the prior criminal record of the offender. Misdemeanors are less serious offenses that usually carry a maximum penalty of one year in jail and a fine. Felonies are more serious offenses that usually carry a minimum penalty of one year in prison and a higher fine.

Possession

Possession of marijuana is the most common marijuana offense. It involves having marijuana on one’s person, property, or vehicle. The penalties for possession vary depending on the quantity, location, and prior convictions. Possession may be a misdemeanor or a felony and may result in fines, probation, community service, or jail time.

For example, in California, possession of up to one ounce (28 grams) of marijuana is legal for adults 21 and older,. However possessing more than one ounce is a misdemeanor punishable by up to six months in jail and a $500 fine.

In Texas, possession of up to two ounces (56 grams) of marijuana is a misdemeanor punishable by up to 180 days in jail and a $2,000 fine. However, possessing more than two ounces is a felony punishable by up to 99 years in prison and a $50,000 fine.

Cultivation

Cultivation of marijuana is the offense of growing marijuana plants or producing marijuana products. The penalties for cultivation depend on the number of plants, the size of the operation, and the intent to sell or distribute. Cultivation may be a misdemeanor or a felony and may result in fines, forfeiture of property, or prison time.

For example, in Colorado, cultivation of up to six plants (three flowering) is legal for adults 21 and older. Although, cultivating more than six plants is a felony punishable by up to 16 years in prison and a $750,000 fine. In Florida, cultivation of any amount of marijuana is a felony punishable by up to 15 years in prison and a $10,000 fine.

Distribution

Distribution of marijuana is the offense of selling, delivering, transporting, or giving away marijuana to another person. The penalties for distribution depend on the amount, the recipient, and the involvement in a larger network or organization. Distribution may be a misdemeanor or a felony and may result in fines, restitution, or prison time.

For example, in Oregon, distribution of up to one ounce (28 grams) of marijuana is legal for adults 21 and older. Although, distribution of more than one ounce is a misdemeanor punishable by up to six months in jail and a $2,500 fine.

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

There are some possible defenses that can be used to challenge or reduce marijuana charges at the state level. Some of the common defenses are:

  • Medical necessity: This defense applies when the defendant has a valid medical recommendation or card for using marijuana to treat a serious medical condition. This defense may not be available in states that do not have medical marijuana laws or that have strict limitations on qualifying conditions or forms of marijuana.
  • Compliance with state law: This defense applies when the defendant was acting in accordance with the state law that allows medical or recreational use of marijuana under certain conditions. This defense may not be available if the defendant violated any of the state regulations on quantity, age, location, or licensing.
  • Entrapment: This defense applies when the defendant was induced by law enforcement agents to commit an offense that they would not have otherwise committed. This defense may not be available if the defendant was predisposed to commit the offense or if there was no coercion or deception by law enforcement agents.
  • Fourth Amendment violation: This defense applies when the evidence of marijuana was obtained by law enforcement agents through an illegal search or seizure that violates the defendant’s constitutional rights. This defense may result in the suppression of the evidence or the dismissal of the charges.

Defenses to Marijuana Possession

Some states offer alternative sentencing options for certain marijuana offenders, especially first-time or nonviolent offenders. These marijuana sentencing alternatives may include:

  • Diversion programs: These are programs that allow the defendant to avoid a criminal conviction by completing certain requirements, such as drug education, counseling, community service, or drug testing. Upon successful completion of the program, the charges are dismissed or reduced.
  • Deferred adjudication: This is a type of probation that allows the defendant to plead guilty or no contest to the charges, but the court does not enter a judgment of conviction. Instead, the court defers the adjudication and imposes certain conditions, such as drug treatment, supervision, or fines.
    • If the defendant complies with the conditions, the charges are dismissed or reduced at the end of the probation period. If the defendant violates any of the conditions, the court can enter a judgment of conviction and impose the original sentence.
  • Drug courts: These are courts that handle drug-related cases and offer intensive supervision and treatment for drug offenders. The defendant must agree to participate in the drug court program and follow a strict regimen of drug testing, counseling, education, and sanctions.
    • If the defendant completes the program successfully, the charges are dismissed or reduced. If the defendant fails to complete the program or commits a new offense, the court can impose harsher penalties.

Defenses to Marijuana Sales

Marijuana sales are usually considered more serious offenses than possession or cultivation, and they may carry higher penalties and fewer defenses. However, some possible defenses to marijuana sales charges are:

  • Lack of intent: This defense applies when the defendant did not intend to sell or distribute marijuana but only possessed it for personal use or gave it away for free. This defense may require evidence of the quantity, packaging, or price of marijuana involved.
  • Duress: This defense applies when the defendant was forced or threatened by someone else to sell or distribute marijuana against their will. This defense may require evidence of the nature and source of the threat or coercion.
  • Mistake of fact: This defense applies when the defendant did not know or have reason to know that they were selling or distributing marijuana but thought it was something else. This defense may require evidence of how and where the defendant obtained the substance or why they believed it was not marijuana.

Cultivating Large Amounts of Marijuana

Cultivating large amounts of marijuana is usually illegal under state and federal laws unless it is done by licensed producers who comply with all the regulations and requirements for medical or recreational marijuana markets. Cultivating large amounts of marijuana without a license can result in felony charges of cultivation, trafficking, or conspiracy, which can carry severe penalties such as long prison terms and hefty fines.

However, some states allow individuals to cultivate small amounts of marijuana for personal use under certain conditions.

Should I Hire an Attorney for Marijuana Issues?

If you are facing any marijuana-related issues, such as criminal charges, license applications, business disputes, or civil lawsuits, you should hire an attorney who has experience in handling similar cases. A drug attorney can help you by:

  • Explaining your rights and options under state and federal laws;
  • Advising you on how to comply with all the rules and regulations for medical or recreational marijuana markets;
  • Representing you in court or before administrative agencies;
  • Negotiating with prosecutors, opposing parties, or regulators for a favorable outcome;
  • Protecting your interests and assets from legal risks or liabilities.

If you need legal assistance for your marijuana-related issue, you can search for a qualified drug lawyer in your area using LegalMatch today.

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