Marijuana is a hot topic today, given that some states are legalizing it for medical and recreational purposes. Indiana, however, is not, and the Federal DEA still lists marijuana as a Schedule I drug. Schedule I drugs are, by definition, drugs that have no medical purpose and have a high risk of abuse and dependency. It seems strange, then, that marijuana laws ar*e different from laws related to cocaine and other Schedule I drugs.
Marijuana possession in Indiana is defined as either possessing marijuana, growing marijuana plants, or failing to destroy marijuana plants that are growing on your property. This possession also covers possession of hashish, hash oil, or salvia. Typically, this is a Class B Misdemeanor. If there are enhancing circumstances, this can be bumped up to a Class A Misdemeanor. One enhancing circumstance for marijuana possession is a prior drug-related offense.
However, marijuana possession as a misdemeanor can quickly become a Level 6 Felony if you have a prior drug-related offense and the amount of marijuana seized was over thirty grams (30g).
If you or someone you know is being charged with marijuana possession, this is still a serious offense. Call criminal defense attorney Alex Mendoza for a consultation today.
Actual vs. Constructive Possession
Convictions for drug possession can be based on either actual or constructive possession. Constructive possession occurs when law enforcement proves that the suspect had actual knowledge of the presence and illegal character of the drug, as well as both the intent and the ability to maintain control and dominion over the drug (Washington v. State, 902 N.E.2d 280 (Ind. Ct. App. 2009)). The suspect must have knowingly or intentionally possessed the drug, however (Beeler v. State, 807 N.E.2d 789 (Ind. Ct. App. 2004)). Proving the suspect has both intent and ability to maintain control and dominion over the drug can mean proving that the suspect has possessory interest in the premises or that the drug was in plain view or close proximity to other items that belong to the suspect (Gee v. State, 810 N.E.2d 338 (Ind. 2004)). This is especially true for passengers in a vehicle. If the passenger can see the contraband and is in the best position to access it, they can be charged with constructive possession (Adams v. State, 946 N.E.2d 630 (Ind. Ct. App. 2011)).
If you are being wrongfully accused of possession of marijuana due to constructive possession, call criminal defense attorney Alex Mendoza for a consultation.
Possession of Paraphernalia
According to I.C. 35-48-4-8.3, there is a penalty for possessing any “instrument, device, or object” intended to put a drug into the body, test the strength of a drug, or enhance the effects of a drug. However, the Indiana statute specifically states that rolling papers are excluded. Bongs, bowls, grinders, and other marijuana-related paraphernalia are included. This penalty is a Class C misdemeanor.
Are you being charged with possession of paraphernalia? Call Alex Mendoza, criminal defense attorney, for a consultation.
Dealing or Possession with Intent to Distribute
Dealing marijuana consists of intentionally manufacturing, financing the manufacture, delivering, or financing the delivery of the drug. It is also possible to be charged with possession with intent to manufacture, finance, or deliver. This charge is usually seen when a person possesses large quantities of the drug. However, in order for one to be charged with possession with intent to manufacture, finance, or deliver, there must be other evidence in addition to the quantity of the drug that supports this charge. Dealing in Marijuana is a Class A Misdemeanor under normal circumstances (I.C. 35-48-4-10).
However, there are a few enhancements:
- Prior drug-related offense AND less than 30g (5g hashish, hash oil, salvia)—Level 6 Felony
- Thirty grams to ten pounds (30g-10lb)(3g-300g hashish, hash oil, salvia)—Level 6 Felony
- Prior drug-dealing offense AND thirty grams to ten pounds (30g-10lb)(5g-300g hashish, hash oil, salvia)—Level 5 Felony
- Ten pounds or more of marijuana (10lb+)(300g+ hashish, hash oil, salvia)—Level 5 Felony
- If the offense involved a sale to a minor—Level 5 Felony
If you are being charged with possession with intent to distribute, call criminal defense attorney Alex Mendoza today.
Searches and Seizures
The Fourth Amendment to the U.S. Constitution gives you protection against unreasonable searches. It also requires that all searches have a warrant. However, there are many, many exceptions and situations in which warrantless searches are valid. If you can prove that a search was in violation of your Fourth Amendment right, however, the evidence that resulted from the search will be thrown out.
Some relevant exceptions to the warrant requirement include:
- Probable cause – meaning that the officer has reason to believe that a search will uncover evidence of a crime
- Exigent circumstances—circumstances that allow for a warrantless search because acquiring a warrant would be impractical due to danger, timeliness, or other circumstances
- Incident to arrest—an officer can search you and your immediate surroundings to protect himself from any danger when making an arrest
- Plain view—items in public or in plain view in a place where an officer is legally allowed to be can be taken
- Open view—items that are easily seen from a lawful vantage point can be taken (like through a window)
- Consent—if an officer asks for permission to search you, your home, or your car—you do not have to consent and refusing to consent is not admitting guilt.
- Consent is important. Some people give consent without realizing they are giving it. If an officer randomly approaches you and begins asking you questions, you are not obligated to answer them. Answering the questions is giving consent. The same thing applies to traffic stops. If you are stopped for a traffic stop and an officer begins asking you if you have any drugs on you, you do not have to answer. Answering is giving consent and probable cause to search.
- Inventory—if your vehicle is being impounded for any reason, the officer has a duty to take inventory of the vehicle before it is impounded
If you would like a more detailed look at exceptions to the Fourth Amendment, check out the section of Searches and Seizures here. If you would like to speak to criminal defense attorney Alex Mendoza about setting up an appointment, call today!
An investigatory stop is conducted by an officer when he has reasonable suspicion of criminal activity. Reasonable suspicion must be based on actual facts. These facts cannot be the color of your skin, the reputation of the neighborhood, or based on an anonymous tip. The officer is only able to stop you for a short period of time for questioning. If no probable cause arises, the officer has no legal grounds to search you or your vehicle. However, if probable cause does arise, the officer can search you or your vehicle.
If you believe you were the victim of an illegal investigatory stop, call criminal defense attorney Alex Mendoza to fight for your rights.
As stated above, the most effective way to avoid being convicted of a possession or dealing charge for marijuana is to get the evidence thrown out. This can be done if one can prove that their Fourth Amendment right was violated and an illegal search or seizure was conducted.
If you believe your Fourth Amendment right was violated, call criminal defense attorney Alex Mendoza for a consultation.
However, if a person is about to be pulled over or arrested, and throws the evidence out the window or drops it on the ground, it is considered abandoned. This means that the officer now has the legal authority to seize it. This also means that the evidence is no longer protected under the Fourth Amendment and therefore cannot be thrown out due to a violation.
Entrapment is another valid defense for marijuana possession or dealing. Entrapment is when an officer or an agent of an officer persuades you to do something that you would not normally do. However, persuasion is different than affording you an opportunity, and affording an opportunity is not against the law (IC 35-41-3-9). If you believe you were the victim of entrapment, call criminal defense attorney Alex Mendoza to set up a consultation.
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