Pot is big in Kentucky. Really big. It is our largest cash crop. It’s also illegal, and people do in fact go to jail for it. This post focuses on Kentucky’s ban on marijuana possession. This article is not a substitute for legal advice, which you absolutely should seek if you are charged with a drug offense. This article also won’t be talking about federal marijuana law, which bans possession, sale, and cultivation of marijuana in Kentucky and every other state – including those states that have legalized marijuana. Federal prosecutions for marijuana possession are generally in cases where a person possessed marijuana on federal property, such as a military installation or national forest (I’m looking at you, Land Between the Lakes). Search and seizure law comes up frequently in marijuana cases, and is a topic unto itself. I won’t be talking about it much in this article, but if you are charged with a marijuana offense you need to know that an illegal search or arrest can lead to the charges against you being dismissed. If you are charged with a marijuana offense, you need an attorney to consider this type of issue before you even think of pleading guilty.
What is Possession?
Legally speaking, “possession” includes actual, physical possession and “constructive possession” – having custody and control of marijuana. For instance, a person generally possesses the things in their home even when the person is not physically at home.
“A person is guilty of possession of marijuana when he or she knowingly and unlawfully possesses marijuana.”
It is important to note that we don’t always possess the things in our homes or cars – if someone else has physical control of marijuana in your home (i.e., your friend has it in his pocket) you probably don’t possess it. Furthermore, Kentucky bans knowing possession of marijuana. If unbeknownst to you someone drops marijuana under the seat of your car, you aren’t guilty of possessing it. A police officer might charge you with it, but being charged doesn’t mean you are guilty. Being charged also doesn’t mean you will be convicted.
One Crime at a Time
There is one feature that nearly all possession of pot cases share – the person wasn’t just possessing pot. In my experience, the majority of possession of pot cases arise from traffic stops. Either the person was speeding, or swerving, or running a red light, or smoking a joint while driving down the road (seriously – don’t do that). Your constitutional protections are at their very weakest when you are in a car (or at the airport). Once a police officer has a legitimate reason to stop you he is far more likely to find anything illegal that you have in your car. Cases dealing with possession of pot in the home generally start with the police knocking on someone’s door for another reason – a noise complaint or serving a bench warrant, for instance. If the police don’t have a reason to come to your house, they probably aren’t going to find any weed that might be in your house.
Things to do, whether you’ve got pot or not:
- Use your turn signals
- Use your headlights – even during the day
- Make sure your headlights, tail lights, license plate light, and turn signals work
- Keep your car insured
- Keep your car registered
- Renew your license
- Be able to produce your license, registration, and proof of insurance quickly.
- Follow the speed limit
Defending Marijuana Cases
In my experience, juries are very sympathetic to the citizen accused of possession of marijuana. For one thing, many of them recognize that “there but for the grace of God go I” – a huge portion of our population smokes pot or has in the past. Juries in Kentucky can also have a strong libertarian streak and aren’t keen on the government asking for someone to be sent to jail for smoking marijuana. And of course plenty of people think it should be legalized. It is generally viewed as a harmless vice, and in my experience many jurors will bend over backwards to find a person not guilty of possession of pot.
The heartwarming story of my very first possession of pot trial
Back when possession of drug paraphernalia was a felony on the second offense I represented a gentleman charged with possession of pot and second offense possession of paraphernalia. The essential facts of the case were that police knocked on the door of his house, he answered, and pot smoke came billowing out. They got a warrant, searched the house, and found weed and rolling papers. I begged him to plead guilty – the prosecution was offering to amend the charge to a misdemeanor. He didn’t plea, and we went to trial. The defense was that a friend had just left, and he was the one smoking pot. The pot found in the home belonged to my client’s stepson. Of course neither the friend nor the stepson was willing to step up to the plate, and they did not testify. When we picked our jury a couple of people had to be kicked off because they stated freely that they would never convict in a possession of pot case. Several were kicked off because they might find someone guilty, but wouldn’t ever send them to jail. You could really feel the good vibrations coming from this jury. At the end of the case, the jury retired to deliberate. The jury room happened to be right next to the defense table, and when they shut the door a juror loudly exclaimed – “This is our tax dollars at work!” The room erupted in laughter and some time later they emerged, having found my client not guilty. The moral of the story is to not fear trying marijuana possession cases.
Penalties for possession of marijuana
For many years possession of pot was a Class A misdemeanor, carrying up to a year in jail. A few years ago the potential penalty was lowered to a still-excessive 45 days. However, be aware that possession of drug paraphernalia remains a Class A misdemeanor, and just about no one possesses pot without also possessing paraphernalia. At least in theory, possession of pot carries at most 45 days no matter how much you possess – one ounce carries the same potential penalty as one pound. However, the more pot a person has, the more likely they are to be charged with trafficking instead of possession. Law enforcement will reflexively charge trafficking instead of possession in almost any case involving more than a few ounces of pot. What actually happens to people who are charged with possession of pot? Here in Western Kentucky most of them don’t have to serve a jail sentence. In fact, the law is clear that in most circumstances a police officer should cite a person instead of arresting them for possession of pot, so many people never step foot in a jail over pot charges. Bizarrely, the major exception to this rule is a college town – most people convicted in Murray end up serving a weekend in jail. Some counties have almost decriminalized marijuana – the offer if a person pleads guilty to a first offense will be a fine and a fine only. However, the offer in most counties will be a conditionally discharged jail sentence. “CD time” or “time on the shelf” is jail time that a person doesn’t have to serve as long as they do certain things. CD time will almost always require that the person commit no further offenses for the next two years, and may require that the person take drug screens or get drug counseling.
Many counties have a diversion program for people charged with possession of marijuana. A diversion agreement is one where a person’s charge is dismissed if they do certain things. This will include not committing new offenses and possibly drug screens and/or drug counseling. Unfortunately, diversion agreements require that the person charged plead guilty, and in many counties failing to complete the diversion results in a trip to jail. A related concept is “deferred prosecution,” where a charge is dismissed “without prejudice,” meaning that it could be reinstated. Deferred prosecutions also typically require that the person jump through some hoops such as drug testing. Diversion is a big deal. IF the prosecution has enough to convict you and IF a skilled lawyer has determined that you don’t have any legal issues that could make the case go away, diversion can keep you from getting a conviction. A possession of pot conviction can have major consequences. Employers may not hire someone with a conviction. You probably won’t be able to get federal student loans if you have a conviction. If you are in a field involving licensing, such as nursing, a possession of pot charge can cause you problems in that regard, too.
Kentucky marijuana law allows judges to void convictions for possession of pot (but not for drug paraphernalia – you definitely want to avoid a conviction for possession of drug paraphernalia if you can). A judge CAN (but is not required to) void a conviction of possession of pot, synthetic drugs, or salvia “upon satisfactory completion of treatment, probation, or other sentence.” If the judge does this, the record is sealed, and it functions very much like an expungement.
Convictions can also be expunged under certain circumstances. This generally can’t take place sooner than two months after a dismissal or five to seven years after a conviction. There is a lot of detail involved in our expungement statute, but the key thing to keep in mind is that in the case of convictions, a person needs a totally clean record for five years prior to the conviction and five years after the sentence (i.e. five years after the person’s CD time expires). “Traffic infractions” won’t keep you from getting an expungement, but other violations and anything that carries potential jail time will.
There is a lot more that could be said about this topic. This is an area of the law that has changed significantly over the years, and I expect that to continue. Society’s attitude about pot is changing, and public policy is changing along with it. In the meantime, however, marijuana is still illegal and can in fact land people in real legal trouble. If you are unfortunate enough to be charged with a marijuana related offense, keep in mind that there is an awful lot to know about your legal situation. You absolutely need to discuss your case with an experienced criminal defense lawyer before making any decisions about what to do. If you have questions or if you have a case that involves a marijuana offense, contact a lawyer at Edwards and Kautz to discuss it. We can be reached at 866-795-5087 or by filling out a form on our website.