The referendum to legalize recreational pot in Maine passed in November 2016. But is recreational pot really legal? The answer to the question is simply it depends. Possessing small amounts of marijuana, and growing a handful of marijuana plants is legal. The Maine Legislature has not enacted laws to create the sale and distribution of recreational pot. A medical marijuana perscription card enables the ability to purchase from a medical marijuana dispensaries. An average person without a medical marijuana card cannot legally purchase recreational pot from a dispensary. In other words, Maine has not yet created marijuana’s equivalent of the Maine Agency Liquor Store.
So where can an adult over the age of 21 purchase “recreational pot” in Maine? Under current law, legal options for obtaining marijuana include obtaining medical marijuana as a medical marijuana patient, or you can grow up to 12 immature plants but no more than 6 flowering marijuana plants. For adults over 21 who want to smoke marijuana, but do not want to grow it themselves or cannot obtain a medical marijuana card, there is no legal way of obtaining marijuana in Maine. Therefore, the black market in marijuana still thrives.
Maine has no legal means of obtaining pot without a medical marijuana card or growing it yourself. Many clients that enjoy recreational pot have expressed that this makes no sense to them whatsoever. As a criminal defense attorney, I tend to agree.
Let’s look at Maine pot charges:
- Cultivating Marijuana– growing marijuana plants in excess of what is legally allowed without a medical marijuana caregiver status.
- Possessing Marijuana– having over 2.5 ounces of marijuana on your person, in your home, or in your vehicle.
- Furnishing Marijuana- giving marijuana to friends or family when the giver and the recipient do not have medical marijuana status.
- Trafficking Marijuana– selling or distributing marijuana to others.
- Marijuana Operating Under the Influence (OUI)– Operating a motor vehicle while under the influence of marijuana.
Navigating Maine’s Marijuana Maze still requires the good advice of a criminal defense attorney to understand what you need to do to protect yourself. I am always happy to answer your questions. I encourage you to contact The Nielsen Group at my office.
Personal Use of Marijuana
According to 7 M.R.S.A. Section 2452, adults over the age of 21 may use, possess, or transport up to 2.5 ounces of marijuana for personal use. Adults are permitted to give up to 6 immature marijuana plants or seedlings to another adult over the age of 21. Growing up to 6 flowering marijuana plants is also legal in the State of Maine if those plants are cultivated at the person’s residence, or on another person’s property with permission from that party. Beginning February 1, 2018, adults over 21 may purchase up to 12 marijuana seedlings from a marijuana cultivation facility.
The statute for personal use is not the same statute that governs the medical use of marijuana.
Federal Criminal Offense under Any Circumstances
Regardless of the status of the law in Maine, marijuana is an illegal drug under Federal Law. Federal Laws supersede State Statues in American government. This means that if the Federal Drug Enforcement Agency decided to enforce Federal law in Maine, they could do so. Maine has benefitted from the fact that the Federal government has not enforced Federal law heavily.
Areas where Federal law is definitely enforced is in Maine’s National Parks, such as Acadia National Park. Therefore, marijuana is illegal under any circumstances in the National parks, and you can be charged with a Federal criminal offense if you are caught with any amount of marijuana while on National Park land. My advice as a criminal defense attorney is this: Maine’s National Parks are worth visiting, but leave the marijuana at home for the trip.
Maine Statute Governing Recreational Pot Still Incomplete
As of the posting date of this article, the Maine Legislature has still not passed any law providing for the processing, sale, regulation, or taxation of legal recreational marijuana. As a result, recreational pot is something that you grow for your own use, or you can obtain through a medical marijuana prescription card.
There are potential entrepreneurs that would appreciate the opportunity to open new recreational pot dispensaries in Maine and to collect taxes for the State. If these businesses open their doors, there are several clients who would appreciate being able to purchase recreational pot in the same way that Mainers can purchase nibs of liquor.
Recreational Pot and School or Employment
Let’s look at how recreational pot might impact your ability to work and to attend school.
Marijuana is prohibited if you are under 21. Your school might have rules or policies against recreational pot use. If you are caught with pot at school while under 21, this remains a civil violation at Court. You can be convicted and sentenced to a fine. The collateral consequences from a civil marijuana violation on your record might impact your federal student loan eligibility status or your ability to stay at that school.
If you are over 21 and working, you will want to know whether your employer has any “zero tolerance” policies for drug use by employees, including marijuana. The State might consider pot to be legal, but employers can terminate you if you violate company policies. Even if your employer is comfortable with you using recreational marijuana on your own time, as a general rule it is always a wise choice to arrive at work sober.
Criminal Charges for Marijuana in Maine
Despite Maine’s legalization of possession of marijuana amounts less than 2.5 ounces, you can still get into criminal trouble with pot. Pot criminal charges can even be felonies. It is important to know where the line is drawn between legal activity and criminal offenses with marijuana.
Under the Maine Criminal Code, 17-A M.R.S.A. Section 1102 (4) (B), Marijuana is a Schedule Z illegal drug. It is illegal to possess large amounts, give away, or sell the substance.
Perhaps the biggest surprise for clients is a criminal charge for Marijuana OUI. OUI is more than just alcohol. Some might use legal recreational pot and then get behind the wheel. However, Maine’s OUI law considers marijuana to be an intoxicant. It is a criminal offense to be impaired by any substance and then drive your car. If charged for Marijuana OUI in Maine, this can put your driver’s license at risk, as well as put you at risk for fines. An OUI conviction can even include mandatory jail time under certain circumstances. A first offense and second offense are misdemeanor charges, but a third offense within a ten (10) year period is considered a felony.
The State of Maine personal use of marijuana law allows a person to grow up to 12 immature but not more than 6 flowering marijuana plants for personal use. Growing more marijuana plants than you are supposed to becomes a criminal offense of Cultivating Marijuana. Depending on the number of plants being grown, the criminal charge could be a misdemeanor or a felony.
Criminal Possession of Marijuana
Unlawful Possession of Marijuana is governed by Maine Statue 17-A M.R.S.A. Section 1107-A. Possession is simply having pot on your person, in your home, or in your vehicle. For a criminal possession charge, the person has to know that what they have is in fact pot. Possessing less than 2.5 ounces of pot is not a crime. However, possessing the following amounts is a crime:
- Possessing more than 2.5 ounces or up to 8 ounces of marijuana, a Class E misdemeanor.
- Having 8- 16 ounces of marijuana, a Class D misdemeanor.
- Keeping over 1 pound – 20 pounds of marijuana, a Class C felony.
- Holding onto over 20 pounds of marijuana, a Class B felony.
Overall, while the law sees small amounts of marijuana as non-criminal, it can become a serious felony when the pot is measured in pounds. If you have ever seen what a pound of marijuana looks like, it is a lot of pot!
Unlawful Furnishing Marijuana is when a person knowingly or intentionally givies pot to another person according to 17-A M.R.S.A. Section 1106. When more than 2.5 ounces of marijuana are given to another person, the amount is considered proof that a criminal offense occurred. Unlawful furnishing of Marijuana is a Class D misdemeanor. If you used a motor vehicle to facilitate the Unlawful Furnishing of the pot, then the court can also suspend your driver’s license as a penalty.
Unlawful Furnishing of Marijuana can become an aggravated charge with the presence of a number of factors:
- Furnishing pot to a minor under the age of 18.
- Soliciting a minor under the age of 18 to furnish pot.
- Giving pot with a prior history of felony drug offenses.
- Supplying pot while possessing a firearm.
- Furnishing pot within 1000 feet of a school.
A criminal charge for aggravated furnishing of marijuana is a Class C felony. Conviction for a felony charge results in status as a felon. Felon status is a lifetime designation.
Transporting, distributing, and selling marijuana is Unlawful Trafficking in Marijuana. Often, trafficking in marijuana makes money for other criminal organizations, and so the State takes a strong position against trafficking of all scheduled drugs. In Maine, medical marijuana caregivers are not permitted to sell marijuana to the medical marijuana patients, and the caregivers are not permitted to sell any “extra” pot that they grow for the patients. Selling off the extra pot would be an example of trafficking in marijuana. In almost all cases, trafficking is considered a felony level offense.
For More Information
If you found this article about the status of legal pot Maine, you might also appreciate the following:
- Can I give a friend marijuana if I have a medical marijuana card?
- If Maine legalizes marijuana, consider the conflict between State and Federal laws.
- Marijuana Charges in Maine – The Court Process