Tuesday, August 14, 2012

Ithaca Cortland Lawyer How a College Freshman Learns the Lessons of Marijuana "Possession"

Is it the "safe" alternative to booze?

I got my 1st college freshman POT phone call, now I truly know school has begun!

Freshman Class of 2016 Cornell University begins their journey, and August 29, IC (Ithaca College).

So the most common charges for those under 21 years of age (others smoke too) are:

The Unlawful Possession of Marijuana in New York State (NY Penal Law Article 221.00)

The main difference between UPM (221.05) and the "Criminal" Possession of marijuana (221.10) is that one is a non-criminal violation and the other is a criminal "B" misdemeanor. BTW NYS does not recognize pot as a controlled substance BUT the Federales (Federal Government) do, so look out on your FAFSA applications for any Federal Financial Aid grants, loans, etc.

To hit "criminal" status one of three things must occur:

1. more than 25 grams but less than 2 oz.
2. open to public view
3. burning (lit) in public

S 221.05 Unlawful possession of marihuana.
  A person is guilty of unlawful possession of marihuana when he
knowingly and unlawfully possesses marihuana.
  Unlawful possession of marihuana is a violation punishable only by a
fine of not more than one hundred dollars. However, where the defendant
has previously been convicted of an offense defined in this article or
article 220 of this chapter, committed within the three years
immediately preceding such violation, it shall be punishable (a) only by
a fine of not more than two hundred dollars, if the defendant was
previously convicted of one such offense committed during such period,
and (b) by a fine of not more than two hundred fifty dollars or a term
of imprisonment not in excess of fifteen days or both, if the defendant
was previously convicted of two such offenses committed during such

S 221.10 Criminal possession of marihuana in the fifth degree.
  A person is guilty of criminal possession of marihuana in the fifth
degree when he knowingly and unlawfully possesses:
  1. marihuana in a public place, as defined in section 240.00 of this
chapter, and such marihuana is burning or open to public view; or
  2. one or more preparations, compounds, mixtures or substances
containing marihuana and the preparations, compounds, mixtures or
substances are of an aggregate weight of more than twenty-five grams.
  Criminal possession of marihuana in the fifth degree is a class B misdemeanor.

NOTE: Most judges and prosecutors want more than this for a punishment or remedial measure:
many want a drug/alcohol evaluation plus any recommended treatment (program) and/or a drug screen (urine test). Some may even want some community service. Is it legal? In other words, is it the law? Not really, but Judges and prosecutors can use it in plea bargaining as a condition so it is common and accepted practice.

The Unlawful Possession of an Alcoholic Beverage by one under age 21 (NY ABC Law)
Alcohol Beverage Control Section 65- c

The statute actually defines the charge as Possession with the "Intent" to Consume, so what if you were merely holding it for someone? How can the police tell if you were "intending" to consume it? But nevertheless if you are caught holding the bottle, can, or glass, even for someone else, you are likely to be charged. This is a violation offense (non-criminal) in New York State.

Punishment is pretty mild on this one but can still be a PITA for many:

3.  Any  person  who  unlawfully  possesses an alcoholic beverage with
  intent to consume may be summoned before and examined by a court  having
  jurisdiction  of  that charge; provided, however, that nothing contained
  herein shall authorize, or be construed to authorize, a peace officer as
  defined in subdivision thirty-three of  section  1.20  of  the  criminal
  procedure  law or a police officer as defined in subdivision thirty-four
  of section 1.20 of such law to arrest a person who unlawfully  possesses
  an alcoholic beverage with intent to consume. If a determination is made
  sustaining  such  charge the court may impose a fine not exceeding fifty
  dollars and/or completion of an alcohol  awareness  program  established
  pursuant   to  section  19.25  of  the  mental  hygiene  law  and/or  an
  appropriate amount of community service not to exceed thirty hours.

The Common Questions:

How can they say it's mine? I didn't actually possess any pot? Everyone got charged? Why?

They say that possession is 9/10 of the law. What does that really mean? That those that have actual (physical) possession are presumed to be the rightful owner of property. Just like the word sale (is any exchange of anything, including a favor) in NYS things legally can be a bit complicated.

What if it is property you don't want to own? What if it's the proverbial hot potato? The drugs, the pot, the alcohol,,, what then? Well in legal truth you do not have to have actual possession of anything to be charged and arrested for a possession crime (offense). In fact there are three types of possession:

1. Actual possession.

You have it on your person, in your purse, in your back pack, or in the waistband of your underwear. Some drug trafficking mules may even have in it located in parts unknown or ones we would rather not think about.

2. Constructive possession. 

You have control over an area or a place or a space. Maybe it is in your car, in your locker, in your apartment or your house or your garage. Under the law we say that you have dominion over it. You can unlock it, move it, or keep it secured from view or possession of another.

3. Presumptive possession.

This is one that many people are often surprised about. Everyone passing that  joint (the blunt, the pipe, the bong) at the party has presumptive possession. This is the hot potato syndrome. The potato is really everyone's and no one's, no one wants it but all possess it. Everyone in the car, everyone at the party, everyone in the room can be charged.

Can someone come forward and say it is mine? Will the cops let the others off? Good questions, the answer is maybe. Depending upon the situation, depending upon the police, depending upon the type of drugs, depending upon the quantity, so many variables.

Sometimes people confuse possession with ownership. Is it really yours or are you merely borrowing it? Sometimes that is a judgment call. For the possession statute does not require a specific time period. Whether it is possessed for a minute or a day or week is of no consequence.

I'm not Mr. Mackey, I don't think all drugs are bad. I believe that sometimes they are used inappropriately. Telling college age adults not to drink alcohol or smoke pot is not a long term solution to the ills of alcohol and drug abuse. Please exercise "Caution, discretion, and moderation" with the use of all drugs both OTC, prescription, and legal.

Lawrence (Larry) Newman, D.C., J.D.
Doctor of Chiropractic
Attorney and Counselor at Law
504 North Aurora Street
Ithaca, NY 14850