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Legalization of Marijuana in Massachusetts?

This November in Massachusetts, Ballot Question 4, entitled “The Regulation and Taxation of Marijuana Act,” proposes the complete “legalization” of possession of certain amounts of marijuana for personal use. This stands in contrast to the current state of marijuana law in Massachusetts, which “decriminalizes” possession of certain amounts of marijuana for personal use. What’s the difference? To understand, it helps to know the current state of the law in Massachusetts.

In the past few years, Massachusetts law regulating marijuana has seen two major changes: (1) possession of less than one ounce of marijuana is no longer a criminal offense; and (2) Massachusetts now has a system in place for medical cultivation and use of marijuana. Here’s a brief guide to the basics of where things stand now.

In 2008, “An Act Establishing a Sensible State Marijuana Policy” was passed into law by way of ballot initiative and was codified as G.L. c. 94C, §§ 32L-N. Section 32L declares possession of less than one ounce of marijuana by a person eighteen years or older to be a civil infraction, not a criminal offense, and subject only to a fine of $100.00 and forfeiture of the marijuana. Section 32M requires persons under the age of eighteen to complete a drug awareness program in addition to their civil fine. Section 32N makes clear that civil citations issued for possession of marijuana are to be issued, contested, etc., in the same manner as any other civil citation.

In 2012, again by way of ballot initiative, “An Act for the Humanitarian Medical Use of Marijuana” was passed into law. Section 1 of the Act sets out a statement of purpose: “The citizens of Massachusetts intend that there should be no punishment under state law for qualifying patients, physicians and health care professionals, personal caregivers for patients, or medical marijuana treatment center agents for the medical use of marijuana, as defined herein.” The Act establishes a medical marijuana registration and dispensary system to be administered by the Department of Public Health. The Act permits a “qualifying patient” or his “personal caregiver” to possess up to a sixty-day supply of marijuana necessary for the patient’s personal use, presumptively set at the amount of ten ounces. Cultivation of marijuana for personal medical purposes is permitted, so long as the cultivator is properly registered, and the cultivation does not exceed the amount necessary to yield a sixty-day supply of marijuana. Cultivation of any amount of marijuana for nonmedical purposes, or by a person not properly registered to do so, remains a crime.

Aside from the possession of marijuana by a properly registered patient or caregiver for medical purposes, possession of more than one ounce of marijuana remains a criminal offense. Aside from possession with intent to distribute by properly registered dispensaries or caregivers, possession of any amount of marijuana with intent to distribute that marijuana remains a criminal offense. Aside from distribution by properly registered dispensaries or caregivers, distribution of any amount of marijuana remains a criminal offense.

As for Question 4, “The Regulation and Taxation of Marijuana Act,” it does nothing to limit the laws currently in place. Instead, it substantially broadens the protections afforded to marijuana possession and distribution. As for personal possession of marijuana, Question 4 would make it entirely legal (no criminal prosecution, no civil citation, no forfeiture) for any person over the age of 21 to possess one ounce or less of marijuana (or 5 grams or less of marijuana concentrate). It would be entirely legal for any person over the age of 21 to have up to ten ounces of marijuana in their primary residence (secured by a lock), and it would be entirely legal for any person over the age of 21 to cultivate up to six marijuana plants for personal use at their primary residence. It would also be entirely legal for anyone over the age of 21 to “give away or otherwise transfer” up to one ounce of marijuana “without remuneration” (i.e. for free).

Question 4 would also establish a Cannabis Control Commission, which would be responsible for creating regulations consistent with the legalization of marijuana and for issuing licenses to retailers permitting them to sell marijuana on their premises. Sales of marijuana will be taxed at a rate of 3.75%. Local cities and towns may impose an additional sales tax of up to 2%. Taxes are to be deposited into a newly-created Marijuana Regulation Fund.

Selling marijuana (in any amount) without a proper license remains a criminal offense. Possession of more than one ounce of marijuana but not more than two ounces of marijuana (outside a person’s primary residence) is a civil infraction, subject to a $100 fine and forfeiture of the marijuana. Operating a motor vehicle under the influence of marijuana remains a criminal offense, and possessing any amount of marijuana in an open container in the passenger area of a motor vehicle is a civil infraction, subject to a fine of up to $500.00.

If you have a legal matter in Massachusetts involving marijuana, consider calling the attorneys at the KJC Law Firm to help you understand your rights and options.