In March 2021, New York Governor Andrew Cuomo signed legislation that legalized marijuana for most purposes.[1] Lawmakers boldly predicted the measure would create significant tax revenues, tens of thousands of jobs, and other social benefits. Like all other predictions, these prognostications might or might not come true.

One thing is certain. Marijuana legalization significantly altered drug possession and related laws in the Empire State. Furthermore, people with certain marijuana convictions might be entitled to some much-needed post-conviction relief. Below are some of the most frequently asked questions we field about legalized marijuana in NY.

How Much Weed Can I Have?

People over 21 can have up to three ounces of marijuana in their immediate possession for personal use. That doesn’t sound like much, but it is quite a bit. Typically, an ounce of marijuana makes about 60 joints. Truthfully, if you have more than 200 or so joints in your backpack, there’s a good chance at least some of them are not for personal use.

This new law also allows drug trafficking on a minimal basis. It’s legal to give marijuana to other people over 21, as long as the weed is for personal use.

But trafficking is still illegal, at least in most cases. If officers find cash, weapons, baggies, scales, or anything else which might indicate drug trafficking, the state will probably bring felony distribution charges.

You may also keep up to five pounds of raw marijuana in your home. The law requires people to take “reasonable steps” to store the weed in a “secure place.”

Where Can I Burn One?

Until further notice, cigarette smoking areas are now marijuana smoking areas as well. Municipalities, however, may restrict public marijuana consumption. Violating these restrictions would be a civil penalty. Additionally, a state oversight board, which has yet to be established, has similar powers on a statewide basis.

Smoking marijuana in a drug-free area might technically be legal, but it’s probably not a good idea. Pot is illegal under federal law. Nevertheless, a Rochester criminal defense lawyer could probably beat these charges in court, especially if you were smoking near a school or other state property.

What About Police Detentions?

The age-old “I smelled marijuana” line has justified countless police stops over the years, both of pedestrians on the street and people in motor vehicles. Those days appear to be over now. Even if an aforementioned consumption restriction is in force, the law states that marijuana consumption alone does not constitute reasonable suspicion.

Marijuana impairment, however, is still illegal. N.Y. Penal Law 240.40 makes it a crime to be intoxicated by a substance other than alcohol in public if these defendants:

  • Are a hazard to themselves or others,
  • Endanger property, or
  • Annoy anyone.

This law is extremely broad. Marijuana annoys some people. As for the first bullet, if Steve walks down the sidewalk while impaired, he is a danger to himself or others.

Driving under the influence of marijuana is illegal in New York as well. For now, prosecutors must use circumstantial evidence in court, so these cases are rather difficult to prove. However, a marijuana Breathalyzer device is coming soon.

How Does Legalized Marijuana in NY Affect Prior Drug Convictions?

If you have a marijuana possession case on your record, you are definitely eligible for expunction if the amount was under three ounces. Expunction destroys both the police record and the judicial record. Typically, a Rochester criminal lawyer needs to file a petition and prove that the expungement would benefit the defendant somehow. If you have a more serious possession case on your record, you might be eligible for expunction. An executive pardon could be an option in these cases as well.

Even with Legalized Marijuana in NY, You Still May Need a Dedicated Attorney

Marijuana is not “legal” in New York, but it’s a lot less illegal than it used to be. Even with Legalized Marijuana in NY, you may find yourself charged with drug charges if you are carrying above the legal limits. For a free consultation with an experienced Rochester defense lawyer, contact the Law Office of Frank Ciardi.



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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