NY Lawmakers Decriminalize Marijuana
With the passing of a new decriminalization measure, New York went from having one of the strictest marijuana laws in the country to one of the most lenient ones.
Governor Andrew Cuomo signed a law which reduces the penalty for possessing less than one ounce of marijuana to a $50 fine. The fine moves to $100 if the defendant has between one and two ounces. But in most other respects, New York’s marijuana laws did not change much. Smoking pot in public and growing pot at home are still illegal. It is also still illegal to drive under the influence of marijuana. So, an odor may still constitute probable cause.
Some observers see partial decriminalization as a bridge to full legalization, but we shall see.
Marijuana Offenses under the New Law
An ounce of marijuana is roughly fifty joints. So, if officers stumble upon your personal marijuana stash, the offense is nearly always a ticket, instead of a criminal offense.
The good news is, obviously, there is no risk of a criminal conviction in these circumstances. The bad news, however, is that these infractions are not criminal offenses. So, many of the normal Constitutional protections, like the right to be free from an unreasonable search, may not apply in these matters. Moreover, prosecutors might not need to prove the charges beyond a reasonable doubt.
Nevertheless, a New York criminal defense attorney can still effectively respond to these matters. And, if prosecutors require the defendant to appear in court, which they may do under the new law, defendants definitely need representation.
For example, prosecutors must still prove all the elements of possession. In addition to proximity, possession also includes:
- Control: When officers break up a pot party, they often arrest several people for possession. But in court, prosecutors must prove the defendant exercised control over the drugs. Unless officers saw the defendant hold the joint, this element is very hard to establish.
- Knowledge: This element comes up a lot in dwelling searches. If the defendant did not know about the marijuana in the cupboard, possession charges will not hold up in court.
Prosecutors must establish every element of possession beyond a reasonable doubt. That’s the highest burden of proof in New York law.
Resolving Marijuana Cases in New York
Partial decriminalization does not just decrease the penalties. It also makes it easier for a New York criminal defense attorney to successfully resolve these matters. Given the lower penalties, except in marijuana trafficking matters, many prosecutors are not as interested in POM (Possession of Marijuana) cases, even if their bosses allow them to bring charges.
Most jurisdictions have drug diversion programs. If the defendant is charged with simple possession and has no criminal record, prosecutors normally dismiss the case if the defendant performs community service and jumps through a few other hoops.
Additionally, if there is a defense, like the ones outlined above, many prosecutors will dismiss the charges altogether. Rather than fight to keep the case open, they would rather drop the matter and move onto something else they consider more important.
Significantly, partial decriminalization in New York means the end of marijuana arrests, at least for most possession cases. Receiving a citation is not the same thing as being arrested. So, a dismissal of charges takes care of the conviction record. And, there probably never was an arrest record to begin with.