In the court of public opinion, the marijuana climate is changing. A majority of states have now either entirely legalized pot, or they have partially decriminalized recreational use and have liberal medical marijuana laws. But this culture change has not affected law enforcement. In 2018, almost half of all drug arrests involved marijuana. A staggering 92 percent of these busts were for simple possession. [1]

Nevertheless, the changing climate has affected these cases. Many jurors now see marijuana use as a health and safety issue as opposed to a criminal law issue. After all, opioid painkiller overdoses have killed tens of thousands of Americans in this century. Marijuana overdoses have made lots of people sick, but they have never killed anyone. Additionally, some of the legal changes have created proof problems that are difficult or impossible for prosecutors to overcome.

The changing climate has made it much easier for a drug possession defense lawyer to resolve these charges successfully. That resolution could be a complete dismissal of charges, normally due to a lack of evidence or legal insufficiency, or a favorable out-of-court settlement which involves pretrial diversion or a similar program.

Marijuana Drug Possession Charges in New York

Frequently, we equate possession with ownership (e.g. the “possessions” in my house). But the criminal court is different. Possession has a much more specific meaning. The state must prove the following three elements:

  • Produce the Substance in Court: Guns, drugs, and other physical evidence are only admissible in court if officers had a valid warrant or a search warrant exception applied. Some common exceptions, which usually apply in traffic stops and other incidental contact arrests, include plain view and consent to search.
  • Prove the Substance was Illegal: In many drug cases, this prong is essentially a formality. But in marijuana cases, this element is often a game-changer. Hemp and marijuana are almost identical in almost every way. They look alike, smell alike, and so on. But since hemp is legal, the state must prove, beyond a reasonable doubt, that the substance was marijuana.
  • Establish Proximity: We mentioned traffic stops above. This final element is often controversial in traffic stops as well. If the police pull over a car and one person has some grass, officers often charge everyone in the car with possession. Frequently, a person in the back seat is not close enough to marijuana in the front seat to legally possess it.

Marijuana possession drug charges in NY are usually misdemeanors. The law recently changed in this area. If the defendant has no criminal record and is charged with a nonviolent misdemeanor, prosecutors almost always offer pretrial diversion, which is a bit like informal probation. If the defendant stays out of trouble for a few months and completes other program requirements, prosecutors dismiss the case.


Roughly these same evidence dynamics apply in trafficking and distribution cases. But the problems are amplified.

Producing the substance in court is a good example. Frequently, marijuana trafficking and distribution arrests involve large, multi-agency investigations. To obtain warrants, investigators often rely, at least in part, on confidential informers. The information these people provide is presumptively unreliable. Most informers receive leniency or cash. And, many people will say almost anything for love or money.

Additionally, trafficking and distribution cases are often almost entirely circumstantial. Prosecutors rely on additional evidence like guns or cash. At a post-arrest press conference, all the seized items are laid out in a neat row for everyone to see. But frequently, the drugs were in one part of the house and the guns or money were in another part of the house. It is difficult to convince skeptical jurors the two were connected, at least beyond a reasonable doubt.

These evidence problems make it easier for a drug possession defense lawyer to obtain pretrial diversion or reduce the charges to simple possession.

Contact a Dedicated Drug Possession Defense Lawyer

Marijuana charges do not always hold up in court. For a free consultation with an experienced drug possession defense lawyer, contact the Law Office of Frank Ciardi. Convenient payment plans are available.




The information in this blog is provided for general informational purposes only and should not be used as a substitute for legal counsel on any subject matter.

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