What Should I Do If I'm Caught with Illegal Weed?
John Bussman is a criminal defense attorney in Orange County, California. He is an expert on marijuana law, a member of the NORML Legal Committee, and a longtime supporter of drug policy reform.
Q: I was caught red-handed in possession of marijuana (it’s still illegal in my state). What legal defenses might help me in court?
A great lawyer once told me that just because you did it doesn’t mean you’re guilty. That adage is especially true in the wild and wonderful world of cannabis defense.
While the issue of “possession” is often fairly open-and-shut, prosecutors around the country complain that it’s getting harder and harder for them to win convictions in marijuana cases. Popular distrust of law enforcement and shifting public opinions on legalization have changed the way the game is played.
Today, defendants who are caught red-handed in possession of illegal marijuana may stand a fighting chance in court by pursuing one of the following strategies. Of course, every case is different.
If you have pending criminal charges, you should immediately consult with a qualified, local attorney. He or she will have more insight into the nuances of your state laws and the facts of your specific case.
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The 4th Amendment to the US Constitution ensures the right to be free from “unreasonable” searches and seizures. The “reasonableness” of any search will necessarily depend on the unique facts and circumstances of each case. Search and seizure law is complicated. There are rules, then exceptions to the rules, then exemptions from the exceptions, etc. Believe me, it’s complicated.
The recent proliferation of body-worn cameras and other cheap recording devices has had a huge impact in this area. In the old days, police could easily invent facts to fabricate justifications for an otherwise-illegal search. Today, we can check the tape.
Marijuana laws vary from state to state. They all generally require the prosecutor to prove that the defendant “knowingly” possessed marijuana. If you’re sincerely surprised to find weed in your car, then you’re not guilty of “knowing” possession.
The old “they’re-not-my-pants” defense is not usually advisable, but there are plenty of situations where defendants have successfully attacked the “knowing” element of their possession charges. Last year, a woman in New Mexico found 13.5 pounds of weed in the panels of a van that she had purchased at auction. In 2010, a woman in Michigan was surprised to receive two pounds of cannabis in the mail. Both women immediately reported their finds to local police. They were not guilty of any crimes because they did not “knowingly” possess the contraband.
A small number of criminal defendants have successfully defeated possession charges by arguing a medical necessity, even in states that do not allow the use of medical marijuana.
Necessity is an affirmative defense that we inherited from the English common law. It may be used in any criminal case where the defendant can prove four elements:
The defendant reasonably and sincerely believed that some emergency existed and that the emergency immediately threatened himself or others;
The defendant did not intentionally create the emergency;
The defendant had no way to reasonably prevent or avoid the emergency except by committing the crime, and;
The harm that the defendant sought to avoid was greater than the harm caused by committing the crime.
If the defendant can convincingly prove that he or she needs to use cannabis to prevent some actual medical emergency (e.g. that the defendant suffers from seizures and that the therapeutic use of marijuana prevents the seizures), then the necessity defense may apply.
For obvious reasons, this argument is rarely used and even more rarely successful, but it exists.
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Jury nullification is the power of juries to deliver a “not guilty” verdict, even when they believe that the defendant committed the act and has no cognizable legal defense. It’s the functional equivalent of a jury saying, “Yeah, but still…”
Historically, nullification has been used by all-white juries to acquit klansmen accused of lynching. It has also been cited as one of the leading factors that led to the repeal of alcohol prohibition in the 1930s.
Today, prosecutors are running into more and more juries who plainly refuse to convict their peers on marijuana charges, regardless of what the evidence shows.
Most jurisdictions now offer low-level, first-time marijuana offenders the opportunity to participate in some form of “diversion.” The nuts and bolts work a little differently from place to place, but these programs generally require the defendant to receive some drug counseling or treatment and to remain law-abiding for a period of months, after which time the case will be dismissed or reduced.
Diversion programs are great in the sense that they keep cannabis offenders out of jail, but they are also responsible for driving up the numbers of people who enter rehab for marijuana “addiction” each year. Drug warriors love to cite these statistics as proof that cannabis is harmful and addictive.
Participating in a diversion program may be expensive, time-consuming and inconvenient, but so is taking your case to trial. It’s an attractive option for many defendants who prefer not to roll the dice in court.