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What is Possession of Marijuana? |
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Possession of Marijuana is having marijuana on your person, in your car, or in a place (like your home) that you have control over, even if you are not present at that place.
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First time offenders are eligible to have their convictions taken under advisement pursuant to Section 7411 of the penal code. This means that if the offender successfully completes a term of probation, the charges against him or her will be dismissed. If the offender is under 21 years old, he or she should try to have the conviction taken under the Holmes Youthful Trainee Act (HYTA), which would also dismiss the charge. HYTA should be used instead of 7411 because 7411 can only be used once, and it can be used even after a drug crime has been taken under HYTA and subsequently dismissed. 7411 can be used at any age (link to HYTA).
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Possession of Marijuana can be charged either under a city ordinance or under state law, which determines what the penalties will be.
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Penalties: |
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City Ordinance
Up to 93 Days in jail and up to a $500 fine
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State Law
First Offense: Up to one year in jail and up to a $500 fine
Second Offense: Up to two years in prison and up to $4,000 fine
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Licensing Sanctions
First Offense: Suspended license for 6 months, eligible for restricted license after 30 days, with petition to court.
Second Offense: Suspended license for one year, eligible for restricted license after 60 days, with petition to court.
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What Defenses Are There? |
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Mere Presence: |
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If the alleged perpetrator is only in the presence of the marijuana without having the right to use or control it, he might be innocent. For example, if a husband and wife are in a car together and the husband knows the wife has marijuana on her, he is not guilty of possessing it himself. |
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Lack of Knowledge: |
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If someone has marijuana on them or in their car, but does not know that it is marijuana or that it is present, he is not guilty of possession. For example, if someone borrows someone else’s car and there is a joint in the glove box, he is not guilty of possession if he doesn’t know it is there or if he knows it is there but doesn’t know what it is. The person who owns the car may still be charged/guilty of possession even if they weren’t present.
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Valid Prescription for Medical Marijuana: |
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If you have a prescription or you have a condition which would make you eligible to get a medical marijuana prescription, you have a recognized defense. |
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Jury Instruction |
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The defendant is charged with the crime of knowingly or intentionally possessing [(state weight) of a mixture containing] a controlled substance, marijuana. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
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First, that the defendant possessed a controlled substance.
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Second, that the substance possessed was marijuana.
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Third, that the defendant knew that he was possessing marijuana.
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Related topics |
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