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With Canada’s recent legalization of marijuana and the midterms only days away, the legalization of marijuana has been a topic of major interest in the media this week. Take for example a few headlines from the past two days:  “Utah lawmaker tries pot ahead of medical marijuana vote” (The Associated Press); “Smoking marijuana in Canada is legal, unless you’re South Korean” (The New York Times);  “Marijuana Midterms: why legal weed advocates think all the pieces are coming together” (NBC News).

While the headlines would suggest that our country is inching toward legalization, marijuana can still get you in trouble here in Alabama. Especially if you’re a student applying for jobs and graduate school. For that reason a crash course on Alabama’s marijuana statutes seems appropriate.

What the Statutes Say:

Far and away, the most common marijuana charges are for simply being in possession of it. Most basically these charges are divided into two categories: Possession of Marijuana in the First Degree, and Possession of Marijuana in the Second Degree (or, as lawyers and judges sometimes abbreviate it: POM 1s and POM 2s). Of the two, Possession of Marijuana in the Second Degree is the less serious offense of the two so we will discuss that one first.

Possession of Marijuana in the Second Degree:

For some charges, like trafficking, the severity of the punishment depends on the weight of the drugs that are seized. For Possession of Marijuana charges, the degree of the charge is not calculated by the weight, but by whether the marijuana was for personal use. 13A-12-214 of the Code of Alabama defines Possession of Marijuana in the Second Degree (a class A misdemeanor) as possessing marijuana for personal use. Perhaps frustratingly, there’s no clear definition to “personal use.” Most often, law enforcement seems to simply care about whether the circumstances surrounding the charge suggest sale or distribution. For instance, if you just get caught smoking a joint, the chances are that you’ll be charged with a POM 2.

Possession of Marijuana in the First Degree:

There are two different types of POM 1 charge. What they have in common (and what distinguishes them from POM 2s) is that they’re both felonies. Let’s discuss each in turn.

Possession of Marijuana for other than Personal Use (13A-12-213(a)(1)):

This one’s a class C felony. Again, there’s no clear definition of “personal use” and for that reason arresting officers have a great deal of discretion in determining what the charge should be. Returning to the example from earlier, imagine that the officer sees you not only smoking a joint, but also passing it to a friend. Clearly we’re not talking about distribution under the traditional sense of the word. Even so, the arresting officer can charge both you and your friend with a POM 1 because both you’re sharing the weed (neither one is limiting it to his own personal use). More often, however, the “other than personal use” exception emerges when officers find a large quantity of marijuana, or other paraphernalia that suggests intent to distribute (e.g., baggies or scales).

Possession of Marijuana under 13A-12-213(a)(2):

The second type of POM 1 is referred to as a “statutory upgrade.” Under the above code section, a POM 2 can be upgraded to a POM 1 if the person charged has already been convicted of a prior POM 2. A statutory upgrade POM 1 is a class D felony. Because of that, such a case may start out in Municipal Court (which only handles ordinance violations and misdemeanors) and then be transferred to the County Courthouse (which has jurisdiction over felony charges).

If you are charged with Possession of Marijuana:

  1. Know that in some circumstances evidence can be suppressed. Under the Fourth Amendment, the circumstances of the arrest could call for excluding the evidence of marijuana possession.
  2. Regardless of the outcome, for enrolled students possession charges could lead to some sort of disciplinary action from the University.
  3. Possession charges are frequently eligible for diversion, which can be more expensive and time consuming but often preferable to alternatives.

If you’ve been charged with possession of the marijuana or another drug related crime, call the Browne House and talk to a lawyer today.