Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

Full Bio →

Reviewed by Jeffrey Johnson
Managing Editor & Insurance Lawyer

UPDATED: Jan 7, 2021

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Possession of marijuana involves the intentional or knowing possession of marijuana. Every state regulates marijuana to some degree with some being more lenient than others. Read more to understand the variations in how marijuana possession is charged, new offenses regarding possession, the defensive strategies, and the possible punishment ranges.

Overview of Possession of Marijuana

The first component of a possession of marijuana is an intentional or knowing act. Even though this seems like a fairly straightforward concept, intentional possession is probably the most contested aspect of a possession of marijuana charge. To prove knowing or intentional possession, the state must present evidence that links the marijuana with the defendant. The courts use what is called a factor test to determine intent. This means that the court will look to and evaluate several factors to decide if a defendant was in possession, such as the defendant’s proximity to the marijuana (also called wingspan factor), the presence of marijuana residue or odor on the defendant or inside his vehicle, any odd behavior displayed by the defendant, and marijuana paraphernalia on the defendant.

The second main component of a possession of marijuana charge is proving that the substance was actually marijuana. To avoid a possession of marijuana charge, many people began smoking synthetic versions of marijuana that could be legally purchased. Since then, the federal government has made the possession of alternate forms of marijuana illegal as well. Most states have followed suit and have made the possession of synthetic marijuana illegal. Because of the distinction between real and fake marijuana, more agencies are now sending marijuana to labs for official testing to prove with a scientific report that the substance is marijuana. Historically, a marijuana conviction could be supported in some states on the testimony by the officer that the substance was marijuana.

These two components comprise the basic definition of a possession of marijuana charge. However, some states require more to prove the charge. For example, many states will not prosecute a possession charge unless the quantity of marijuana constitutes a usable quantity. Even though a defendant may not face a charge for possession of marijuana, some jurisdictions will still charge a defendant with an alternate charge of possession of drug paraphernalia, which carries a misdemeanor range of punishment. How a possession of marijuana charge is pled or the possible defenses available will vary depending on the state’s position toward marijuana.

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What are possible defenses for marijuana possession charges?

In most states the main defensive theory is to prove that the marijuana found belonged to someone else, thereby, negating the intentional possession element. Some states do have regular programs for delivering medical marijuana. However, a medical marijuana defense will only work in a state that has approved marijuana for medicinal use. If a defendant travels to a non-medical marijuana state, the second state is not required to accept the other state’s medical marijuana defense. Similarly, even if a state has authorized or legalized the possession of marijuana, the federal government is not required to extend the same defenses to federal charges of possession of marijuana. Many defendants have been charged under federal statutes, even though they lived in states that made the same possession of marijuana permissible.

A secondary defensive theory is to dispute that the substance is marijuana or that the quantity is not high enough for possession. As mentioned earlier, some defendants switched to synthetic versions of marijuana and, for a while, proving the substance was not marijuana used to result in a not guilty verdict. However, since the federal government and most states have also added synthetic versions of marijuana to their lists of prohibited substances, proving that the substance is not marijuana is not as effective of a strategy as it used to be. Even though testing of the substance will not remove the charge, a change in the substance can result in a lesser charge. Some synthetic marijuana possession statutes are only misdemeanors, as opposed to felony grade offenses.

Disputing the weight of the marijuana can have the same effect. Possession of marijuana charges are based on the weight of the substance possessed and if a defendant can show that the quantity actually weighed less than the amount for which he is charged, then he could receive a lesser charge, and thus a lower punishment range.

What are the possible punishments for marijuana possession?

The punishment range for possession of marijuana increases as the quantity increases. If the quantity is not a usable quantity, then the offense may be reduced to a possession of drug paraphernalia charge, which is essentially a ticket offense, or punishment by a fine and court costs. For smaller, but usable, quantities, the level of offense is considered a misdemeanor offense. Misdemeanor possession of marijuana charges can range from 30 days to a year in a county or parish jail. The courts can also assess a fine, up to $2,000. If a defendant has a minimal criminal history, he or she may qualify for probation which will last from ninety days to two years, depending on the quantity of marijuana possessed and the defendant’s history.

Larger quantities of marijuana will result in felony level charges. Again, this will vary from state to state. Some will consider four ounces or more a lower level felony. Fifty pounds or more will incur a higher level felony possession of marijuana charge. Lower level felonies carry a punishment range of six months to two years. Higher level felony charges carry a punishment range of two years to twenty years in prison. Fines for either level of felony range from $500 to $10,000. A defendant placed on felony probation for possession of marijuana can be required to submit to random drug testing and long term drug counseling.

How can you get legal help?

The social attitudes towards marijuana are reflected by each state’s laws. Despite several state movements, marijuana is still illegal in all states (either by state or federal laws) and can result in a criminal conviction. Criminal convictions can impact federal aid (benefits, student loans) and employment opportunities. Before accepting any sentence or plea bargain, a defendant should consult with an experienced defense attorney to understand all of the options and defenses available.