Marijuana Legalization Up to 3 oz. or 24 Grams of Concentrate
On March 31, 2021, New York became the 15th state to legalize the recreational use of marijuana. However, the substance is still heavily regulated. New York has not established a complete legal framework for legal marijuana sales, and use or possession beyond certain legal limits remains a criminal offense. Also, possessing and selling marijuana remains illegal under federal law.
Legalization for Recreational Use
As long as you are at least 21 years old, you can legally possess up to 3 ounces (85 grams) of cannabis or 0.85 ounces (24 grams) of concentrated cannabis (“hash oil”). Minors under 21 may not possess any amount of marijuana.
Once New York implements the new regulations on home cultivation, you will be able to use your home to grow up to three mature and three immature cannabis plants per person (up to a maximum of 12 plants per household). You will be able to keep up to 5 pounds of marijuana in your home as long as you secure it properly. Since New York has not yet implemented these regulations, do not rush out immediately to establish a home greenhouse.
Where Can You Smoke?
Generally, you can smoke marijuana wherever you can smoke tobacco except for cars, schools, and workplaces. The authorities will punish smoking marijuana (including vaping) in a prohibited public location the same as smoking tobacco in public. Smoking marijuana while driving, however, is still a criminal offense.
The Odor of Marijuana Is No Longer Probable Cause
The odor of marijuana no longer constitutes probable cause for an officer to search your vehicle for marijuana. The smell of marijuana in combination with other evidence, however, can still constitute probable cause. Remember, however, that an officer does not have to search your car to charge you with driving while intoxicated.
Expungement of Criminal Records
One aspect of New York’s liberalization of marijuana laws is that it is retroactive. The criminal records of thousands of people charged with certain marijuana offenses will receive automatic expungements. Simply put, you don’t have to do anything, and New York will not notify you of the expungement.
Under an expungement, the government erases all records so that employers, landlords, and loan officers cannot discover your conviction. An expungement:
- will not appear on your criminal record or your RAP sheet;
- cannot be used to deny you housing, student loans, or employment; and
- cannot be accessed by the police.
Furthermore, you can legally conceal information about any expunged item on any application that may demand that information, such as a job application.
Types of Marijuana Offenses That Will Be Expunged
Importantly, not all marijuana offenses will automatically be expunged. For offenses that do not qualify, a motion must be filed with the Court where the conviction occurred to either vacate the conviction, dismiss or reduce the charges, or reduce the sentence.
The following types of charges, however, will automatically be expunged without filing any motions and without fees:
- PL 221.05 Unlawful Possession of Marijuana in the 2nd
- PL 221.10 Unlawful Possession of Marijuana in the 1st
- PL 221.15 Criminal Possession of Marijuana in the 4th
- PL 221.20 Criminal Possession of Marijuana in the 3rd
- PL 221.35 Criminal Sale of Marijuana in the Fifth
- PL 221.40 Criminal Saleof Marijuana in the Fourth
- PL 222.10 Restrictions on Cannabis Use
- PL 222.15 Personal cultivation and home possession
- PL 222.25 Unlawful Possession of Cannabis, and
- PL 222.45 Unlawful Sale of Cannabis.
The new expungement policy has important racial implications. In 2020, people of color made up well over 90 percent of marijuana-related arrests in New York. This is true despite the fact that marijuana use among whites is just as high as marijuana use among people of color.
Even after the legalization of the recreational use of marijuana, marijuana remains a highly regulated substance. New York still criminalizes many activities relating to the use of marijuana, and still imprisons certain marijuana offenders. Some of these penalties are described below.
Smoking and Driving
If you drive under the influence of marijuana, the police can charge you with Driving While Ability Impaired By Drugs (DWAI). Unlike alcohol, there is no minimum level of intoxication, below which it is OK to drive. Any THC in your body can justify the police charging you with DWAI. In fact, medical personnel can detect marijuana in the bloodstream of a heavy marijuana user for as long as a week.
Surprisingly, New York will not deduct points from your driver’s license for a DWAI. However, you will have to pay a significant fine and you will almost certainly spend at least a little time in jail. If you were driving with a minor under 15 in the car, however, the police can charge you with a felony even for a first offense.
Possession of More Than the Legally Permitted Amount
New York can still arrest you for possession of marijuana if you exceed the legal limits. Generally, a person is guilty of unlawful possession when the cannabis weighs more than three ounces or concentrated cannabis weighs more than twenty-four grams. The penalty increases depending on the weight of the product. However, the fine for unlawful possession cannot be more than $125. Keep in mind that the foregoing penalties do not apply to the 5-pound home storage allowance mentioned above.
- Possession of more than 16 ounces of cannabis: Upto a year in jail.
- Possession of more than 5 pounds is a felony: Up to four years in prison. Mandatory jail time applies to a second offense.
- Possession of more than 10 pounds is a felony. New York can imprison you for up to seven years.
Naturally, marijuana dispensaries are exempted from the foregoing restrictions.
Penalties for Distribution
Importantly, the law distinguishes between “transfer” and “sell.” The “transfer” of cannabis is free of charge and “sale” of cannabis to exchange or dispose of for compensation. If you are at least 21, you are free to transfer up to 3 ounces of marijuana or 24 grams of concentrate unless you transfer it to someone who is underage. If you sell or transfer it to someone less than 18 years old, you can face up to a year in jail.
The unlawful sale of cannabis can result in varying jail sentences depending on the amount sold. However, the fine for unlawfully selling cannabis cannot be more than $250. Keep in mind that the foregoing penalties do not apply to designated caregivers, practitioners, or employees of a registered organization.
- Sale of more than 3 ounces: Up to one year in prison.
- Sale of more than 16 ounces is a felony: Up to four years in prison.
- Sale of more than 5 pounds: Up to seven years in prison.
- Sale of more than 100 pounds: Up to fifteen years in prison.
The legalization of marijuana does not defeat private restrictions on its use because the owner of private property has the right to regulate its use on that property. Even public property can forbid the use of marijuana on the property. For example, a hospital may legally forbid the use of marijuana anywhere on its campus.
Federal Law and the Legalization of Marijuana
Ultimately, the use of marijuana is a legal gray area, even in states like New York that have legalized the recreational use of this substance. The reason is that at present, marijuana remains an illegal substance under the Federal Controlled Substances Act.
Federal law applies throughout the United States, including New York. Furthermore, when federal and state law conflict, the Supremacy Clause of the US Constitution dictates that federal law almost always prevails. The reason why there hasn’t been a big problem with legalization so far is that federal authorities have been voluntarily refraining from enforcing federal law. Theoretically, however, this could change at any moment.
The Proposed Waiver System
Legal scholars have suggested that the federal government should act soon to harmonize federal law with state law by creating a waiver system. Under such a system, states could “opt-out” of federal marijuana restrictions. This would mean that the state, individuals, and marijuana dispensaries would be shielded from either civil or criminal liability.
But even in states that opt-out, the federal system could still preserve some federal oversight. In consultation with state governments, they could provide the following guidance:
- regulate marijuana potency and allowable product types;
- create public health standards covering testing, marketing, and packaging;
- enact clear guidelines for banks to allow the marijuana industry to avoid a purely cash-based model;
- provide guidance to help law enforcement address continuing problems with illegal marijuana sale and use; and
- expand support for cannabis research to target products that are sold legally.
Clearly, it is in everyone’s best interest that the federal government act swiftly to resolve the conflict between federal law and state laws. Public support for legalizing marijuana is overwhelming. Accordingly, the federal government should change its laws to allow each state to make its own decision. More conservative states such as Alabama and Arkansas may never legalize marijuana. Meanwhile, people who live in places like California and New York should not have to live in legal limbo.
Now Is No Time to Hesitate
If you have been charged with a drug offense in New York state, now is no time to hesitate because deadlines are looming. Missing one of them, or responding at the last minute because you are unprepared, could result in an unjust punishment being imposed upon you.