This November 2014 election, marijuana initiatives were on the ballot in South Portland and Lewiston. The results from this vote were split between the two cities. Lewiston rejected the marijuana initiative. South Portland approved the marijuana initiative. What does this result mean for these two cities? [Read more…] about November 2014 Maine Marijuana Ballot Initiative Split Vote
Marijuana OUI in Maine
Frank lives in Portland, Maine, where the state permits adults over 21 to possess small amounts of recreational marijuana. Frank goes to visit friends at their Old Port apartment, and he smokes marijuana during the evening. Because Frank does not want to drive drunk, he does not drink any alcohol. Later that evening not being aware of Marijuana OUI in Maine, Frank is confident that he is in the clear to drive home.
While driving home, Frank stops way too short of a stop sign, and then turns too soon so that his back wheels hit the sidewalk. Shortly thereafter, Frank is pulled over by a Portland Police Officer. The officer asks Frank for his license and registration. The officer asks Frank to step outside the car to perform standardized field sobriety tests. The next thing Frank knows is that he is being placed in the police cruiser in handcuffs and being driven to the Cumberland County Jail for an Intoxilyzer 8000 test.
Frank feels indignant. Why is he being arrested for Pot OUI when he did not drink any alcohol? He blows a 0.00 on the alcohol breath test and asks “Can I go home now?” Instead of going home, Frank is asked to undergo a Drug Recognition Exam (DRE) to find out what drug, other than alcohol, might be causing Frank’s impairment. Frank is charged with an OUI because he was impair by pot and was driving.
Frank has run into the problem of Marijuana OUI. Unfortunately for Frank, the State of Maine expects Frank to drive his car while not being impaired by any substance include pot. Just like any other drug, such as alcohol or prescription pills, consuming marijuana can impair your ability to operate a motor vehicle.
This is a fictional story highlighting what one commonly experiences when charged with a Marijuana OUI in Maine. A Marijuana OUI is treated just as seriously as an OUI due to alcohol. If you or someone you know is facing similar charges of pot OUI in Maine, please take a moment and contact The Nielsen Group for your free legal consultation with an experienced Maine OUI defense attorney. Attorney Nielsen will help answer your questions and put your mine at ease.
In this article, let’s get a deeper understanding of Marijuana OUI in Maine and what you need to know if facing criminal charges.
- OUI is not just for Alcohol
- Marijuana OUI puts your driver’s license at risk
- What to expect without a lawyer
- How a Maine OUI defense attorney can help
- Possible outcomes for a Marijuana OUI in Maine
- Maine Court Process for Marijuana OUI
OUI is not just for Alcohol
Under the Maine statute, the legal limit for alcohol is 0.08 BAC. But what about testing for Marijuana? In the State of Maine,the tools to investigated OUI are:
- Performing a Drug Recognition Exam (DRE) and.
- Securing a urine or blood sample and conducting a drug screen.
Administering DRE exams is more of an art than a science, and getting the results back from a blood toxicology lab can take time.
To help this process, Maine is considering a chemical test that would be used to test for marijuana impairment. The measurement would be 5 nanograms of THC in the blood. THC is the chemical component in marijuana that makes a person high. In other words, while 0.08 of alcohol is legally impaired from alcohol, 5 nanograms of THC would be considered legally impaired from marijuana.
For the State of Maine, the benefit of a standardized measurement for marijuana that would indicate being legally impaired, would be that the same law would apply to everyone, which would be good for law enforcement. And, having a specific test for marijuana would eliminate the uncertainty of a DRE test, which functions as a “best guess.”
Just like the alcohol breathalyzer test, there are potential pitfalls in testing a person’s blood for THC marijuana content. First, how do we know that 5 nanograms is the right amount of THC in the blood to cause impairment? Just like alcohol, different people could process marijuana through their system at different rates. In this way, some people could be more or less impaired with 5 nanograms of THC in their blood, resulting in the law impacting people differently. And, a blood test is a highly invasive search from law enforcement. Currently, a blood test is conducted in certain situations, such as when a person is not an appropriate candidate for a breath test or has given a result of 0.00 (indicating impairment by a means other than alcohol), or when there has been an motor vehicle accident resulting in serious injury or death. If the blood test for marijuana becomes mandatory for all OUI investigations, this could raise issues with potential civil rights violations.
Marijuana OUI Puts your Driver’s License at Risk
In this case, Frank is facing his Maine First OUI Offense. A First Offense OUI in Maine is a Class D misdemeanor. If convicted, Frank could face the following mandatory minimum penalties:
- $500 Fine (plus fees and surcharges)
- 150 day loss of driver’s license (both the BMV and the Court can suspend your driver’s license)
These are just the minimum penalties. For a Class D misdemeanor, the State could impose penalties of up to $2,000.00 in fines and up to 364 days jail time.
For Frank, it was the license suspension that upset him more than anything else. He needs to be able to drive to get to and from work at a local restaurant. If he can’t get to work reliably on time every day, then his employer might let him go.
Without a Lawyer, District Attorney Refuses to Negotiate
Not knowing what to do, Frank went to his Arraignment date alone to see if he could work things out with the District Attorney. To his unhappy surprise, the District Attorney was not interested in hearing anything he had to say. Instead, the District Attorney simply said that the State’s “best” offer was for him to plead guilty as charged and be sentenced to the mandatory minimum penalties.
Frank was in a panic thinking that he might lose his job over this. Frank realized that he needed the assistance of a criminal defense lawyer. Frank did the right thing by calling an experienced criminal defense lawyer to fight the Marijuana OUI charge.
How a Criminal Defense Lawyer can Help
After hiring a criminal defense lawyer, Frank felt much better knowing that he had an aggressive advocate and a legal expert in his corner. Frank learned more about the many ways in which his criminal defense lawyer could defend his case, including:
- Build a defense by attending the BMV Administrative Hearing. Several weeks ago, Frank got a letter in the mail from the Maine Secretary of State. Why was he getting a letter from the Secretary of State when his court date was at the District Court? And so he missed the deadline to request an administrative hearing and his license was suspended. With the assistance of the criminal defense lawyer, the opportunity for a BMV Administrative Hearing was renewed. At this Administrative Hearing, the criminal defense lawyer questions the arresting officer to build a stronger defense for the criminal court.
- Identify any potential problems with the OUI stop. When conducting an OUI stop, law enforcement officers must respect your constitutional civil rights. Any statements or evidence obtained in violation of your constitutional rights are not admissible as evidence at trial.
- Identify any potential problems with the credentials of the arresting officer or DRE examiner. In order for any chemical tests to be considered valid, the officer has to complete certain courses and to sustain any continuing education requirements. If the officer’s certification to perform tests like standardized field sobriety tests or DRE exams have any gaps, then this fact is important to Frank’s defense.
- If there was a blood draw, identify any potential problems with chain of custody or contaminated sample. If the officers took a sample of Frank’s blood, then the blood sample needs to be taken properly by a properly certified person, and the blood sample itself needs to be treated carefully so as to not contaminate the quality of the sample.
Possible Outcomes for Marijuana OUI
With the assistance of criminal defense counsel, Frank’s possible resolutions to his case increased significantly. Here are just a few examples of possible resolutions to Frank’s case.
Resolutions Not Involving a Guilty Plea
- Dismissal– The Marijuana OUI charge could be dismissed outright due to constitutional violations or significant weaknesses in the State’s case. A dismissal is the best possible outcome in a Maine OUI case.
- Filing Agreement– In a filing agreement, the State sets aside the Marijuana OUI charge for a period of time, usually for one year, pending Frank’s good behavior. At the end of a Filing Agreement, the charge usually gets dismissed.
Resolutions Involving a Guilty Plea
Frank’s criminal defense lawyer told him to never plead guilty to a criminal charge without knowing all of the possible consequences he would face. Therefore, it was very important for Frank to understand and be okay with the full impact of any guilty plea he entered.
- Dropdown to a lesser charge– One possible resolution to Frank’s Marijuana OUI could be to enter a guilty plea to a lesser charge. In some instances, the Maine District Attorney can offer that the defendant plead guilty to a less serious charge, such as Driving to Endanger (DTE).
- Deferred Disposition– In this case, a deferred disposition is when Frank enters a guilty plea to Marijuana OUI, and then the State revisits the issue of a sentence at a later date, usually for one year. Frank inst convicted because the sentence has not been imposed. If Frank meets the requirements of his deferred disposition agreement, and he stays out of trouble, then he would get the benefit of the plea agreement, which could be a dismissal of the Marijuana OUI charge.
Maine Court Process for Marijuana OUI
Arraignment
As a first offense OUI for Marijuana, the first court date for Frank would be an Arraignment, where the Judge reads the details of the charge against Frank, and Frank answered to the charge in the form of Not Guilty. If there are any issues pertaining to bail, conditions of bail could also be addressed.
Dispositional Conference
In Portland’s Unified Criminal Docket, Frank’s next court date after Arraignment would be a Dispositional Conference. A Dispositional Conference is where the lawyers meet to negotiate a possible resolution to the case outside of a trial. At the Dispositional Conference, Frank’s criminal defense lawyer would present any arguments about any flaws in the police investigation, as well as any arguments pertaining to the reliability of the blood sample or DRE exam, to show the State that they might not have a strong case against Frank. If after reviewing the State’s offers, Frank does not want to accept any of the plea deals on the table, then the case would progress to pretrial motions, jury selection and trial.
Pretrial Motion Hearings
At the Unified Criminal Docket, pretrial motion hearings are intended to resolve any potential issues in the evidence. If certain evidence was obtained in violation of Frank’s Constitutional rights, the criminal defense lawyer could file an appropriate pretrial motion, such as a Motion to Suppress. After the motion is filed, a Suppression Hearing is held. After the Suppression Hearing, the Judge decides whether any potentially questionable evidence will be kept out of evidence at trial. If successful, this can result in key pieces of the State’s case being kept out of trial.
Trial
At trial, it is the role of District Attorney to attempt to prove that Frank committed Marijuana OUI beyond a reasonable doubt. It is the role of the criminal defense lawyer to reveal reasonable doubt whether Frank had in fact committed a crime. At trial, Frank has the right to confront the State’s witnesses in cross-examination. The outcome of a trial for Marijuana OUI is decided by a jury of Frank’s peers or by a Judge. Most OUI cases do not reach trial stage.
For More Information on Marijuana OUI
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- 10 Mistakes People Make During a DUI Stop
- Drunk Driving Involving Drugs
- New Drunk Driving Law Takes Effect December 2013
- Questions to Ask your OUI Defense Lawyer
- Court Process for Marijuana and Alcohol OUI Laws
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- Standardized Field Sobriety Tests in Maine
York Maine Marijuana Legalization Ballot Measure for November 2014
In November 2013, a marijuana ballot initiative passed in Portland, Maine. There is another upcoming marijuana ballot initiative for November 4, 2014. This time, the Marijuana Policy Project is supporting a similar ballot in York, Maine. At this time in York, signatures are being collected to allow the initiative to be put on this year’s ballot for a vote, called the Town of York Recreational Marijuana Legalization Measure.
To recall, the ballot question in Portland, Maine for 2013 included the following major details:
- Allows recreational use of marijuana by adults 21 and older.
- Allows adults 21 and older to legally possess up to 2.5 ounces of marijuana and marijuana paraphernalia.
- Prohibits recreational use if marijuana in public places.
- Prohibits adults under 21 and minors from using marijuana.
As per ballotpedia.org, when they asked the Marijuana Policy Director why York, Maine was chosen, it was described that York Maine would be well-located for potential future initiatives in New Hampshire and Massachusetts. Given the notoriety of last year’s results, it is possible that we might see the marijuana legalization ballot initiative being put up for a vote this year, and perhaps we might see similar results.
Legal Effects of the Ballot Initiative
Just like in 2013, it is important to keep in mind that even if this new initiative passes, and despite the fact that the initiative is called a “recreational marijuana legalization measure,” that the legal effect of the initiative would not be to legalize marijuana. While advocates might be seeking complete legalization of pot, the Maine statutes are nowhere near this ideal.
First, the State statute will always supersede local ordinances when it comes to enforcing the law. This means that regardless if the local ordinance says the marijuana is legal, the State says otherwise.
In Maine, the use and possession of marijuana is legal only if you have a medical marijuana prescription card from a doctor. For more details, please look at the Maine Medical Marijuana Statute. This means that if you do not have a prescription card, then the following Maine Marijuana laws apply:
- Possession of marijuana up to 2.5 ounces is considered a civil violation. The penalty for a civil violation is a fine only and the violation going on your permanent adult record.
- Possession of Marijuana in Maine over 2.5 ounces is considered a criminal charge. The penalties for a criminal charge include potential fines, jail time, along with other potential ordered conditions, such as substance abuse treatment, probation, etc.
- Other activities involving marijuana, including selling it (i.e. trafficking), giving it to friends (i.e. furnishing), or growing marijuana plants without a medical marijuana prescription card (i.e. cultivating marijuana), are also considered criminal acts.
Under the ballot initiative York is looking at, the only “change” to the existing law would be to eliminate the type of marijuana possession that would result in a civil violation. Possession of marijuana over 2.5 ounces would still be considered a crime.
What would it take to make marijuana legal in Maine?
If the York ballot passes at the end of this year, there will be a small patchwork of localities in Maine that recognize the recreational use of marijuana as legal, while the overall State law would not recognize marijuana as legal. Notwithstanding Federal Law, the only thing that would make marijuana “legal” in Maine would be for there to be a Statewide initiative and a State government to support and enact such a change in the law. For such an effort, Maine might want to take a look at the implementation process applied in Colorado and Washington State, where marijuana has already been legalized.
A slow political process continues
While this ballot initiative in York might not trigger a Statewide change in Maine’s State marijuana laws, the ballot initiative might have an overall political impact. Perhaps if the York initiative is passed, and if the voters in the area feel that the new law does not hurt them or the community, then perhaps additional communities would be open to the idea in future similar ballot initiatives.
For More information
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Marijuana Charges Maine Court Process
Marijuana in Portland Maine is not Completely Legal with the Latest Vote
With the vote this past Tuesday, the question arises are we starting down a journey to legalized Marijuana in Maine? As with all journeys, there are bumps in the roads and surprises around the bend. Let’s take an in depth look at how Marijuana in Portland Maine is still not entirely legal. why this is the case, and speculate on some next steps.
Portland, Maine Marijuana Ballot Initiative Passes Decisively
This past Tuesday Portland, Maine voters had their say on a referendum to make possession of less than 2.5 ounces of marijuana by adults over 21 legal in the city. The vote in favor won by a decisive margin at sixty seven percent (67%). In response, many celebrated this as a victory supporting marijuana legalization. However, the effect of the ordinance is not a citywide legalization of marijuana in Portland Maine, and implementation of the new ordinance does not take effect immediately.
New City Law Creates Conflict with Maine State Law
Because the Marijuana in Portland Maine ordinance only applies within the city limits, the ordinance does not affect or change Maine State law. Under Maine State laws, marijuana is still an illegal drug. Under Maine Statute, marijuana is considered a Schedule Z illegal drug, and possession more than 2.5 ounces, furnishing marijuana, cultivating marijuana plants, and trafficking in marijuana are all criminal activities. As criminal charges, the possible consequences from the State can include fines, jail time, and possible probation, among other conditions.
Under Maine State law, possession of marijuana in amounts less than 2.5 ounces is considered a civil violation, for which the penalty is a fine. In this way, the change mostly supports the decriminalization of small amounts of marijuana, as opposed to legalization. However, in Portland you can still be issued a civil violation in connection with marijuana.
State Marijuana Law Preempts City Marijuana Law
Even though Portland has legalized possession by adults of small amounts of marijuana, the State of Maine has not made this change. This difference creates a conflict between the two sets of laws. When there is a conflict in laws, the law from the more powerful entity usually prevails. Here, the Maine State law would be considered to carry a greater punch than the City law. This is called preemption.
Because the Maine State law still considers marijuana to be illegal, recreational marijuana users in Portland could potentially run into problems with the police. People can still be charged with a civil violation or a crime, depending on the amount of marijuana in possession. This would be despite the fact that according to City ordinance, the marijuana possession was legal and the accused were not breaking the law.
While Possession of Marijuana in Portland Maine is Legal, purchasing it is a crime.
This is perhaps the most perplexing part of the new law, because if possession is legal, then should not obtaining it be legal too? What would happen if city law enforcement witnessed a sale of a legal amount of marijuana between an illegal drug trafficker and a law-abiding recreational marijuana user? Under State law, both would be arrested, and then if the amount of marijuana possessed is confirmed as less than 2.5 ounces, then law enforcement can tag the purchaser with a civil violation for possession of a usable amount of marijuana. The spirit of the new ordinance suggests that now the law enforcement officer might arrest the trafficker but let the purchaser go.
Technically however, even if possession of small recreational amount of marijuana is now legal in Portland, the Police would still enforce laws pertaining to larger amounts of marijuana. Overall, I believe that the biggest change this law makes is shifting the priorities of law enforcement. If small amounts are legal, then it is not worth the police officer’s time to go after recreational marijuana users. Instead, city law enforcement might allocate its time towards more serious marijuana-related crimes, such as illegal trafficking or large illegal cultivation operations.
Legal Possession Citywide Could Lead to Statewide Legalization
While this new change in the City of Portland, Maine did not by itself legalize marijuana throughout the State, it is possible that this small change could lead to bigger changes in favor of marijuana legalization in the future. Here is a scenario from a State that legalized Marijuana that could be predictive to what Maine could expect to experience.
In Colorado, their path to legalization began with a similar citywide legalization effort in the city of Denver, CO. Two years after marijuana was made legal citywide in Denver, the rest of the State of Colorado followed suit and legalized marijuana statewide. Most recently, Colorado voters approved a measure that would place a hefty State tax on legal marijuana.
Will we see if this scenario turns out to be true in Maine, that in the next 2 years can we expect to see legalization of marijuana statewide in Maine? Subsequent efforts from issue activists and future voters will tell.
If Maine legalizes Marijuana, consider the conflict of Federal and State laws
There is a nation-wide evolution occurring in attitudes towards marijuana. While the drug has been categorized as illegal for decades, certain States, such as Washington State and Colorado, have made significant changes in their state laws making marijuana legal for adults to use recreationally. Notably, these states have also provided a legal supply chain for the production and sale of marijuana. This November, Colorado will ask voters to approve a 15 percent Marijuana excise tax to help fund school construction and to vote upon a 10 percent tax to help pay for marijuana regulatory enforcement. There are even discussions which consider that these taxes will not cover the expense of legalization. As is suggested by the most recent ballot initiative in Portland, Maine, to make possession of marijuana by adults of less than 2.5 ounces legal, might it be possible that Maine could be the next state to legalize marijuana statewide?
In the event that Maine does choose to legalize the cultivation, sale, and possession/ use of marijuana, it is important to understand that such a change in Maine’s law would create a conflict with federal laws, under which marijuana remains illegal, period.
Federal Law States Marijuana is Illegal
Even if Maine changes the status of marijuana to a legal substance, akin to alcohol or tobacco products, this does not change the Federal law, in which marijuana remains an illegal drug.
In the federal law, the severity of the crime pertaining to marijuana depends on the weight of the marijuana seized by federal drug enforcement. In turn, the weight of the marijuana determines the sentence the offender would receive according to the Federal Sentencing Guidelines. Overall, in federal criminal prosecutions, there is not a lot of “wiggle-room” for a defendant to reduce a sentence after the weight of the marijuana has been confirmed.
One of the federal rationales for continuing to clamp down so hard on marijuana despite changing attitudes is that the illegal sale of marijuana tends to support financially illegal drug operations, such as gangs and cartels, who work across many states at one time, and who sell much harder and harmful drugs, such as cocaine and heroin, and who commit other violent crimes.
Certainly it is a legitimate interest of government to keep the public safe from harm from the dangers posed by these large and violent criminal networks. At the same time, unlike other kinds of illegal drugs, which are either manufactured or “cooked” and then shipped long distances, marijuana is a plant that needs to be grown. As a result, marijuana production can be a “local” operation. What might happen if in all 50 States, marijuana were grown, sold, and possessed legally and locally? Could this not take a significant financial bite out of the bottom line of criminal operations if they can no longer sell illegal marijuana because it can be purchased legally? While this might not shut down these large networks, it might trigger a shift in how these organizations “do business.”
What can happen because of this conflict of laws?
When Colorado announced its change of laws legalizing marijuana, the Federal drug enforcement agencies noted that it would not enforce federal laws within the State’s legal marijuana infrastructure. Instead, the federal laws that would continue to be enforced would include those preventing interstate trafficking of marijuana, among other stated federal interests. In other words, while the federal government has indicated that it would not interfere with an intra-state operation, if that operation extended beyond the State’s boundaries, then the federal law that marijuana is illegal would supersede the State law that marijuana is legal.
From a policy perspective also, it might not be worth it to expend limited time and resources for the Department of Justice to send out drug enforcement agents to enforce federal laws in States that have made marijuana legal.
Therefore, if Maine legalized marijuana, then technically it remains possible that federal drug enforcement can be dispatched to enforce federal law in Maine despite State law if the federal agencies feel such enforcement is necessary. Any such enforcement would certainly be disruptive and potentially damaging economically for the community that had received the enforcement.
How can this conflict of laws be alleviated?
Without a similar change in the federal law to be a closer match to State law, having marijuana legal on the State level but illegal on the federal level will continue to be a conflict. One way that the federal agencies have coped thus far simply is to not pursue enforcement of all federal marijuana laws where the drug has been made legal on the State level. Another means of change might occur in the future if many more States, such as more than half, decide to legalize marijuana. In this instance, the federal laws might be more encouraged to change their position.
Overall, this post has simply described the conflict between federal and State law if Maine ever decided to legalize marijuana completely. Currently in Maine, marijuana is still an illegal drug if possessed in amounts over 2.5 ounces, as well as in terms of furnishing, cultivation, and trafficking. However if you enjoyed reading this speculation, you may also want to check out:
What if Marijuana was legal in Maine?
In Maine, marijuana is still an illegal substance if you do not have a medical prescription. Nevertheless, attitudes have been changing towards a more lenient position towards casual use of the substance. Other States, such as Washington and Colorado, have already legalized marijuana, and others are seeking to do the same. This November 2013, Portland City residents are being asked to vote on an initiative that would make the possession of up to 2.5 ounces of marijuana legal. However, the purchase and sale of marijuana would remain illegal. What follows is my “educated guess” of what things might look like if Marijuana was legal in Maine covering the possession, sale, and cultivation.
De-criminalization of Use and Possession
Immediately, if marijuana was legal, it would benefit the section of clients I see who are charged with possession of marijuana and either end up with a civil violation or a criminal misdemeanor on their record. Having a civil violation or a criminal conviction on your record, even if it is a low-level misdemeanor pertaining to marijuana, can affect people poorly in eligibility for student loans, as well as can impact people’s ability to find or maintain employment in certain fields. If marijuana was legal, these clients, who otherwise are upstanding and productive citizens, would not have to suffer long-lasting consequences in their life and livelihood simply because they enjoy the occasional or recreational use or marijuana.
If Marijuana was legal what’s the Definition for Legal Marijuana
First, a new policy frame to view marijuana would be necessary. Some might argue that already legal but addictive substances, such as alcohol and tobacco, are “too easy” to access and too often abused. In my legal practice, domestic violence or violent crimes such as assault can be triggered or exaggerated by impairment due to alcohol. And, as I have discussed in other articles, drunk driving in which a person consumes alcohol and then gets behind the wheel of a car is a rather common but nevertheless serious crime. And multitudes of studies have shown how bad for your health tobacco use is.
However, given marijuana’s long status as an illegal drug, I do not imagine that the public would be willing to accept a level of access to marijuana on the same level as purchasing a bottle of wine sitting openly on the shelf at the local drug store. Perhaps the policy frame could be a hybrid between alcohol and tobacco, wherein a person could not be sold legal marijuana unless they have reached the age of 21 (older than tobacco), the purchaser would have to show a valid State ID showing their age, and like cigarettes, the marijuana could be kept in a locked cabinet behind the counter at the retail store, perhaps next to the tobacco products. For the still squeamish about marijuana, perhaps the product could even be stored in a back room of the retail space, not accessible unless obtained by a salesperson. If marijuana was legal, the Maine State governance would need to have some good productive discussions on handling the details of legal for whom?
Impact on Maine’s Medical Marijuana Laws
If marijuana was legal in Maine, then the most difficult policy challenge for our legislators could be what to do with Maine’s existing Medical Marijuana Law, which in itself took many years to get passed and become accepted by the community.
Logically, if marijuana was legal entirely, then the distinction made by the Medical Marijuana Law between “medical marijuana” and “non-medical marijuana” would become insignificant. It would not matter how much of a legal substance that someone had in his or her home, or for what purpose he or she has the legal substance.
Legalization an Economic Development Opportunity
In terms of the production, growing and cultivation of marijuana, I think that Maine’s existing Medical Marijuana Law can be instructive. Already in the Medical Marijuana Law, there are people approved by the State to grow marijuana for medical patients, called Caregivers. In addition to growing plants, Caregivers can produce marijuana products for patients, such as marijuana-laced cookies for patients that do not wish to smoke the substance.
What if Maine’s Medical Marijuana Caregivers were changed into local Product Producers for safe legal marijuana? To meet demand, the State could hire, train, and regulate these local product producers, who would earn an income and pay taxes. This could mean jobs for Mainers. In this way, legalization of marijuana could be an opportunity for State-level economic development. So if Marijuana was legal in Maine, could we have a new industry?
Legal Marijuana Would be a Safer Product
We are all familiar with the horror stories of the ugly things that can happen when completely unregulated consumer products that are adulterated or modified enter the market. Illegal drugs by their very nature are completely unregulated. For example, in some illegal marijuana operations across the country, cultivators add tiny glass beads to the buds in order to make the product look more “valuable” than it actually is, and all in order to get a higher price. But, when the adulterated or modified marijuana is smoked, the tiny glass beads can become highly dangerous to your health.
In contrast, the supply chain of legal marijuana could be tracked from the seeds, the farm, the local distributor, to the retail store, similar to the process we have for tracking produce from the farm to the grocery store. And, regulation means that there could be State safety inspectors to make sure that the product is not adulterated or modified in any way. If Marijuana was legal in Maine, what would the safety and quality controls be?
Criminal Acts Focus on Growers and Sellers
Even if the use and possession of marijuana was legal, it does not mean that there would be no criminal charges in connection with marijuana at all. Instead of focusing on the consumers, the new criminal law for legal marijuana might focus on offenses pertaining to the cultivation and sale of marijuana. Being an unlicensed seller, selling marijuana to minors, and the classic criminal charge of Trafficking would all still remain criminal acts.
In order for the criminal charges to have a deterring effect, any consequences or penalties would need to be serious enough to impact legal producers and sellers as well as illegal traffickers. Already, illegal drug trafficking is considered a felony crime. Perhaps producers and sellers should also face similar felony charges if a crime is committed. For a Class C felony, the least severe felony in Maine, the maximum penalties include fines up to $5,000.00 and up to 5 years jail time.
Legalization could Mean Tax Revenue
Just because something is legalized does not mean that it would not be heavily regulated and taxed by the State. Generally, the public is willing to accept a higher tax on items that are addictive, since they would “buy them anyway.” In the case of legal marijuana, I believe that the public would accept a relatively high tax as another means of limiting access. In turn, this tax could be used to support the continuing regulation and inspection of the product.
An Opportunity to Study and Treat Marijuana Addiction
In the cases of alcohol and tobacco, people often get addicted, and they can face a difficult road in breaking away from their habit. Industries have thrived on creating products to help people quit smoking tobacco cigarettes, and treatment facilities and self-help programs, such as Alcoholics Anonymous, never seem to run out of people to help. It is likely that something similar can be expected from marijuana if it were legalized.
Like any legal substance with potential for addiction, some people do not get addicted, and some do. For those that do become addicted and want to quit, I would imagine that as a society we would want to help people to overcome their addiction. People often do not seek treatment if they are addicted to illegal drugs because they do not want to admit to their friends or family that they took illegal drugs. The criminal court system and corrections systems are not designed to treat addiction. While Maine does have a Drug Court, this only scratches the surface of the number of people who would benefit from a more traditional, non-stigmatized, means of addressing their addiction.
Moreover, if marijuana was legal in Maine, the substance could be studied by medical research labs to find better ways to help people quit, and we might even come up with a better understanding of the substance’s potential as a medicine for certain illnesses. I would be interested to see what this type of research would be able to find.
Overall, while all of this discussion has been purely speculation, the decision and ultimate outcome will be up to Maine voters and Maine’s elected representatives.
If you enjoyed this speculation of what if Marijuana was legal in Maine? You may also like reading:
With Maine legalizing Marijuana what will the future impacts be? | Nielsen Group Law
In Maine, marijuana is still an illegal substance if you do not have a medical prescription. Nevertheless, attitudes have been changing towards a more lenient position towards casual use of the substance. Other States, such as Washington and Colorado, have already legalized marijuana, and others are seeking to do the same. This November, Portland residents are being asked to vote on an initiative that would make the possession of up to 2.5 ounces of marijuana legal. However, the purchase and sale of marijuana would remain illegal. What follows is my “educated guess” of what things might look like with Maine legalizing Marijuana completely; possession, sale, and cultivation.
De-criminalization of Use and Possession
With Maine legalizing Marijuana, it would immediately benefit the section of clients I see who are charged with possession of marijuana and either end up with a civil violation or a criminal misdemeanor on their record. Having a civil violation or a criminal conviction on your record, even if it is a low-level misdemeanor pertaining to marijuana, can affect people poorly in eligibility for student loans, as well as can impact people’s ability to find or maintain employment in certain fields. If marijuana were legal, these clients, who otherwise are upstanding and productive citizens, would not have to suffer long-lasting consequences in their life and livelihood simply because they enjoy the occasional or recreational use or marijuana.
A New Definition for Legal Marijuana
First, a new policy frame to view marijuana would be necessary. Some might argue that already legal but addictive substances, such as alcohol and tobacco, are “too easy” to access and too often abused. In my legal practice, domestic violence or violent crimes such as assault can be triggered or exaggerated by impairment due to alcohol. And, as I have discussed in other articles, drunk driving in which a person consumes alcohol and then gets behind the wheel of a car is a rather common but nevertheless serious crime. And multitudes of studies have shown how bad for your health tobacco use is.
However, given marijuana’s long status as an illegal drug, I do not imagine that the public would be willing to accept a level of access to marijuana on the same level as purchasing a bottle of wine sitting openly on the shelf at the local drug store. Perhaps the policy frame could be a hybrid between alcohol and tobacco, wherein a person could not be sold legal marijuana unless they have reached the age of 21 (older than tobacco), the purchaser would have to show a valid State ID showing their age, and like cigarettes, the marijuana could be kept in a locked cabinet behind the counter at the retail store, perhaps next to the tobacco products. For the still squeamish about marijuana, perhaps the product could even be stored in a back room of the retail space, not accessible unless obtained by a salesperson.
Impact on Maine’s Medical Marijuana Laws
If marijuana were legalized in Maine, then the most difficult policy challenge for our legislators could be what to do with Maine’s existing Medical Marijuana Law, which in itself took many years to get passed and become accepted by the community.
Logically, with Maine legalizing Marijuana eventually it will be completely legal, then the distinction made by the Medical Marijuana Law between “medical marijuana” and “non-medical marijuana” would become insignificant. It would not matter how much of a legal substance that someone had in his or her home, or for what purpose he or she has the legal substance.
Maine Legalizing Marijuana provides an Economic Development Opportunity
In terms of the production, growing and cultivation of marijuana, I think that Maine’s existing Medical Marijuana Law can be instructive. Already in the Medical Marijuana Law, there are people approved by the State to grow marijuana for medical patients, called Caregivers. In addition to growing plants, Caregivers can produce marijuana products for patients, such as marijuana-laced cookies for patients that do not wish to smoke the substance.
What if Maine’s Medical Marijuana Caregivers were changed into local Product Producers for safe legal marijuana? To meet demand, the State could hire, train, and regulate these local product producers, who would earn an income and pay taxes. This could mean jobs for Mainers. In this way, legalization of marijuana could be an opportunity for State-level economic development.
Legal Marijuana Would be a Safer Product
We are all familiar with the horror stories of the ugly things that can happen when completely unregulated consumer products that are adulterated or modified enter the market. Illegal drugs by their very nature are completely unregulated. For example, in some illegal marijuana operations across the country, cultivators add tiny glass beads to the buds in order to make the product look more “valuable” than it actually is, and all in order to get a higher price. But, when the adulterated or modified marijuana is smoked, the tiny glass beads can become highly dangerous to your health.
In contrast with Maine legalizing Marijuana, the supply chain of legal marijuana could be tracked from the seeds, the farm, the local distributor, to the retail store, similar to the process we have for tracking produce from the farm to the grocery store. And, regulation means that there could be State safety inspectors to make sure that the product is not adulterated or modified in any way.
Criminal Acts Focus on Growers and Sellers
Even if the use and possession of marijuana were legalized, it does not mean that there would be no criminal charges in connection with marijuana at all. Instead of focusing on the consumers, the new criminal law for legal marijuana might focus on offenses pertaining to the cultivation and sale of marijuana. Being an unlicensed seller, selling marijuana to minors, and the classic criminal charge of Trafficking would all still remain criminal acts.
In order for the criminal charges to have a deterring effect, any consequences or penalties would need to be serious enough to impact legal producers and sellers as well as illegal traffickers. Already, illegal drug trafficking is considered a felony crime. Perhaps producers and sellers should also face similar felony charges if a crime is committed. For a Class C felony, the least severe felony in Maine, the maximum penalties include fines up to $5,000.00 and up to 5 years jail time.
Legalization could Mean Tax Revenue
Just because something is legalized does not mean that it would not be heavily regulated and taxed by the State. Generally, the public is willing to accept a higher tax on items that are addictive, since they would “buy them anyway.” In the case of legal marijuana, I believe that the public would accept a relatively high tax as another means of limiting access. In turn, this tax could be used to support the continuing regulation and inspection of the product.
An Opportunity to Study and Treat Marijuana Addiction
In the cases of alcohol and tobacco, people often get addicted, and they can face a difficult road in breaking away from their habit. Industries have thrived on creating products to help people quit smoking tobacco cigarettes, and treatment facilities and self-help programs, such as Alcoholics Anonymous, never seem to run out of people to help. It is likely that something similar can be expected from marijuana if it were legalized.
Like any legal substance with potential for addiction, some people do not get addicted, and some do. For those that do become addicted and want to quit, I would imagine that as a society we would want to help people to overcome their addiction. People often do not seek treatment if they are addicted to illegal drugs because they do not want to admit to their friends or family that they took illegal drugs. The criminal court system and corrections systems are not designed to treat addiction. While Maine does have a Drug Court, this only scratches the surface of the number of people who would benefit from a more traditional, non-stigmatized, means of addressing their addiction.
Moreover, if marijuana were legal in Maine, the substance could be studied by medical research labs to find better ways to help people quit, and we might even come up with a better understanding of the substance’s potential as a medicine for certain illnesses. I would be interested to see what this type of research would be able to find.
Overall, while all of this discussion has been purely speculation, the decision and ultimate outcome will be up to Maine voters and Maine’s elected representatives.
Possession of Marijuana in Maine | Nielsen Group Law
Marijuana possession in Maine is normally a civil violation if one possesses a usable amount of marijuana. Marijuana is the most commonly abused drug in Maine. Possession of Marijuana in Maine offense has increased in popularity since Maine became the fifth state to enact the Medical Marijuana Act. In this article, we will review:
- What is the legal status of Marijuana in Maine?
- What are the Marijuana Criminal Charges in Maine?
- What are the penalties of Marijuana criminal charges?
What is the legal status of Marijuana in Maine?
It can be confusing to the average person because there are 3 different technical legal “statuses” for marijuana in Maine:
- Legal by prescription – Maine supports the legal use and possession of marijuana for registered medical patients. If you have a prescription for medical marijuana from a doctor, then you are legally allowed to use and possess marijuana.
- Civil marijuana violation – If you do not have a medical marijuana prescription and are found in possession of less than 2.5 ounces of marijuana, Maine considers this a civil violation.
- Criminal marijuana charges – Possession of any amount of marijuana in excess of 2.5 ounces, or performing other drug-related activity in connection with marijuana, is charged as a crime.
Despite changing attitudes towards marijuana to an overall more favorable perspective, the substance remains an illegal Scheduled Z drug in Maine for those who do not possess a doctor’s prescription. Maine’s Medical Marijuana Law has allowed prescribing, and limited possession, of medical marijuana since 1999 but the law lacked any distribution mechanism.
What are marijuana criminal charges?
The following are the drug-related crimes that can be charged in connection with marijuana:
- Trafficking – Trafficking marijuana means to sell, transport, or distribute the drug. Sometimes trafficking is referred to as “possession with intent to sell.” Trafficking marijuana in any amount is a felony.
- Cultivating Marijuana – In Maine, there is a specific crime for growing marijuana plants. Depending on the number of marijuana plants being cultivated, the crime could be a misdemeanor or a felony, with higher numbers of plants being associated with a more serious charge.
- Furnishing – To furnish marijuana means giving the drug to another person, usually for that person’s use. Generally, furnishing marijuana is a misdemeanor, but the charge can be elevated with the presence of aggravating factors.
- Possession – If a person is found in possession of more than 2.5 ounces of marijuana, then it is a criminal charge. The person could have the drug on their person, in their home, or in their car. Depending on the amount of the drug found by law enforcement, the charge could be a misdemeanor or a felony, with greater amounts of the drug being associated with a more serious charge.
All of the above drug-related criminal charges can be elevated with the presence of aggravating factors, including the following:
- Committing the drug crime while possessing a firearm
- Committing the drug crime in the presence of a minor child
- Committing the drug crime near a school
- Committing the drug crime with a criminal history of felony or other drug-related offenses
The impact of aggravating factors can be that a misdemeanor can be elevated to a felony, and felonies can become more serious felonies. As you can see, marijuana-related crimes are serious, and the assistance of an experienced Maine criminal defense attorney is essential for your defense.
What are the penalties for marijuana crimes?
There are a multitude of penalties, both immediate and longer-term that can stem from a marijuana–related criminal conviction, as well as a civil marijuana violation.
- Civil Penalties – If you are found to have committed a civil violation for marijuana, then the immediate penalty is a fine and the violation going on your record. If you are a young person seeking to apply to higher education or federal student loans, a civil marijuana violation can make you ineligible for those loans. Also, if you are in any profession that works with children, or are looking to break into such a field, a civil violation on your record for marijuana would be treated more stringently by a current or potential employer.
- Criminal penalties – If you are convicted of a marijuana-related crime at the criminal court, you can face a number of penalties, including fines, jail time, probation, and mandatory substance abuse treatment. There are longer-term penalties for those who are convicted of a felony, because a felony conviction entails status as a felon and the challenges associated with it.
Contact Criminal Defense Lawyer Chris Nielsen
Maine Criminal Defense Attorney, Chris A. Nielsen, is well known in Maine for providing excellent legal representation for those accused of violating Maine Marijuana Laws. If you take the opportunity to call him, your calls are routed directly to his competent staff and him. He can help by answering preliminary questions, helping you with your pending court date, and providing a realistic, detailed review of what to expect in court.
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