Tyguy
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Some of you may know that my state recently voted to change the criminal prosecution proceedings regarding marijuana. Basically, if you are caught with weed and it is an ounce or less, it is a $100 fine and a forfeiture of the pot.
I have the entire law copied into the spoiler tag so I don't take up too much room but it's a good read, especially if you live in Mass.
I have the entire law copied into the spoiler tag so I don't take up too much room but it's a good read, especially if you live in Mass.
Special Bulletin: Marihuana Law
To: All MPTC In-Service Instructors and Professional Staff
Date: 11/11/2008
Re: Ballot Initiative on Marihuana Possession
Greetings my fellow legal instructors: Ballot initiatives that are approved by the voters
become law in thirty days. That is why Question 2, which advocated the decriminalization of
marihuana and was passed overwhelmingly, will take effect on December 4, 2008.
Important disclaimer. Here is my breakdown based on the language in the ballot initiative.
Please stay tuned, because the legislature may amend this law and/or the Attorney General,
Executive Office of Public Safety and Security (EOPSS), or the Massachusetts District
Attorneys Association may weigh in on the issue. In the meantime, I wanted to get you what
information I had, since working officers are asking for guidance.
New section, G.L. c. 94C, ? 32L, makes possession of an ounce or less of marihuana a
civil violation. As of December 4, 2008, G.L. c. 94C, ? 32L1 will subject an offender:
• 18 years old or older
• Who is 18 years old or older; and
• Is in possession of 1 ounce or less of marihuana;
• To:
• A civil penalty of $100;
• Forfeiture of the marihuana
1 This new section effectively repeals those provisions of G.L. c. 94C, ? 34 that penalize the possession of
an ounce or less of Class D marihuana. See Initiative Petition Sheet, Section 5. However, ? 34 still applies
to possession of more than an ounce, including the accompanying authority of G.L. c. 94C, ? 41 that
permits officers to make a warrantless arrest upon probable cause.
Law Enforcement Dimensions
John Sofis Scheft, Esq.
846 Massachusetts Avenue
Arlington, MA 02476-4728
Tel: 781-646-4377 Fax: 781-643-3069
www.ledimensions.com
�� Page 2
• Under 18 years old
• Who is under 18 years old; and
• Is in possession of 1 ounce or less of marihuana;
• To:
• A civil penalty of $100;
• Forfeiture of the marihuana; and
• Completion of a drug awareness program within 1 year of the offense
Nature of drug awareness program. Outlined in G.L. c. 94C, ? 32M, the drug
awareness program shall be developed by the Department of Youth Services
(DYS)2 and must provide “at least four hours of classroom instruction or group
discussion and ten hours of community service.”
Parental notification. G.L. c. 94C, ? 32L mandates that the parents or a legal
guardian receive notification about an offender under 18.3
Consequences for failure to complete drug awareness program.
• The failure of any offender to complete the program within 1 year may
result in the civil fine being increased to $1,000 pursuant to G.L. c. 94C, ??
32L and 32N. Furthermore, the offender and his parents shall be jointly
and individually responsible to pay the fine at that point.
• In addition, if the offender was under 17 at the time of the offense and fails
to complete the program, G.L. c. 94C, ? 32M authorizes commencing a
delinquency proceeding in juvenile court. This step seems designed to
effectively criminalize the misconduct and, upon a delinquency finding,
enable the juvenile court to re-impose the $1,000 fine and drug program
as a condition of probation.
This new law expands the definition of possession to include internal consumption.
G.L. c. 94C, ? 32L states that “’possession of one ounce or less of marihuana’ includes . . .
having cannabinoids or cannabinoid metabolites in the urine, blood, saliva, sweat, hair,
fingernails, toe nails or other tissue or fluid of the human body.” This expanded definition of
possession will justify officers in detaining those individuals who exhibit signs of marihuana
consumption.4 Should signs or an admission of marihuana consumption be confirmed –
even without any seizure of drugs -- officers will be free to impose the civil fine which, for
those individuals under 18, will trigger the additional requirement of a drug awareness
2 A strange choice for the lead agency, since most state educational programs in the drug abuse area are
developed by the Department of Public Health.
3 G.L. c. 94C, ? 32N requires that a copy of the citation be sent or delivered to parents or a legal
guardian.
4 At present, the odor of marihuana on clothing provides probable cause to search. Comm. v. Garden,
451 Mass. 43 (2008).
�� Page 3
program. For those officers who have frequent contact with youths (e.g., SROs), this
authority may become a potent tool to address even signs of casual marihuana consumption.
This new law does not apply to distribution, cultivation, OUI, prescription use, or local
regulations relating to public use. There are five critical limitations in the coverage of G.L.
c. 94C, ? 32L.
• Distribution. The new ? 32L does not repeal laws relating to “selling, manufacturing or
trafficking in marihuana.” This plain language means:
• A person who distributes, or possesses with the intent to distribute, marihuana is still
subject to criminal prosecution – including the offender who engages in these
activities with less than an ounce. See Comm. v. LaPerle, 19 Mass. App. Ct. 424 (1985)
(even drug residue may support a conviction for possession with intent to distribute,
provided that the surrounding circumstances indicate that the drug was, in fact,
possessed for distribution). Comm. v. Sauer, 50 Mass. App. Ct. 299 (2000).
Personal use includes smoking marihuana with someone else at the same time.
When two or more persons simultaneously and jointly acquire possession of a drug for
their own personal use, intending only to share it together, their only potential crime
is simple possession. However, purchasing drugs, even with a friend’s money, is
distribution if the offender transfers the drugs to his friend at a later time. Comm. v.
Minor, 47 Mass. App. Ct. 928 (1999).
• Manufacturing of marihuana remains a crime. Manufacturing is defined by G.L. c.
94C, ? 1 as “production, preparation, propagation . . . or processing of a controlled
substance, either directly or indirectly by extraction from substances of natural origin
. . . except . . . the preparation or compounding of a controlled substance by an
individual for his own use.” Thus, producing or preparing marihuana for anyone’s
separate use, in any amount, subjects the offender to criminal prosecution – although
preparing marihuana strictly for personal use (e.g., rolling a “joint” or “blunt” to
smoke) will not constitute manufacturing.
• Since trafficking requires 50 pounds of marihuana at a minimum, that conduct, of
course, remains criminal.
• Cultivation. The new ? 32L does not make any explicit changes in the law relating to
“cultivation.” This term appears in G.L. c. 94C, ? 32C, which states: “Any person who
knowingly or intentionally manufactures, distributes, dispenses or cultivates, or
possesses with intent to . . . cultivate [marihuana] shall [be punished].” Thus, officers still
have the authority to pursue a criminal charge against anyone who grows marihuana in
any amount.5 Pursuant to G.L. c. 94C, ? 41, officers may arrest this type of violator on
probable cause.
5 “Cultivate” means “to grow or tend (a plant or crop).” The American Heritage Dictionary (Office edition;
4th ed.; Houghton Mifflin Co.). Interestingly, G.L. c. 94C, ? 32C, which prohibits intentionally
�� Page 4
• Operating Under the Influence. According to G.L. c. 94C, ? 32L, all laws relating to
operating under the influence (OUI) of marihuana – see mainly G.L. c. 90, ? 24 – remain
in full force and effect. Thus, the diminished ability to operate a vehicle safely based on
the consumption of any amount of marihuana is still a crime, even though the actual
possession by the impaired operator of an ounce or less is now a civil event.
• Prescription Use. G.L. c. 94C, ? 32L preserves all “laws concerning the unlawful
possession of prescription forms of marihuana or tetrahydrocannabinol such as
Marinol.”6 Presumably, this language leaves intact the application of G.L. c. 94C, ? 33,
which creates a felony for anyone who uses deception to obtain a controlled substance
from a medical practitioner or person authorized to dispense the drug (e.g., a
pharmacist). G.L. c. 94C, ? 37, which makes it a felony to steal any controlled substance
from anyone authorized to possess the drug, also continues to apply.
• Local Law. G.L. c. 94C, ? 32L explicitly allows cities and towns to enact “ordinances and
bylaws regulating or prohibiting the consumption of . . . and . . . public use of marihuana
or tetrahydrocannabinol.” Just as municipalities now penalize the public consumption of
alcohol, ? 32L gives municipalities the “green light” to pass local laws that punish public
marijuana consumption and use.7 Remember, only consumption and use may merit
regulation because simple, public possession is already encompassed by ? 32L and its
civil fine structure.8
Court procedure for marihuana possession cases. G.L. c. 94C, ? 32N sets out the court
procedures applicable to these cases by explicitly incorporating the provisions of G.L. c. 40, ?
21D.9
• Officer procedures. An officer must:
• Issue a citation10 signed by the officer and, if possible, by the offender acknowledging
receipt; and
cultivating marihuana, does not limit its application to any specified amount. Any cultivation, even
that for personal use, draws a potential penalty of HC NMT 2 years, and/or Fine NLT $500, NMT
$5,000. Subsequent offenders face HC NLT 1 year, NMT 2? years, and/or Fine NLT $1,000, NMT
$10,000.
6 The Department of Public Health administers a medical marihuana program. See G.L. Chapter 94D.
7 Absent explicit arrest authority in the ordinance or bylaw, “wilfull” violators will still be subject to “in
presence” arrest based on the authority conferred by G.L. c. 272, ? 59 to local law enforcement.
8 Perhaps the Attorney General’s Office may want to promulgate a model local ordinance or bylaw
dealing with these subjects.
9 G.L. c. 40, ? 21D applies to certain bicycle and littering offenses, as well as any local ordinances or
bylaws. I like to refer to its procedural structure as “confess or contest.”
10 G.L. c. 94C, ? 32N directs the “person in charge” (i.e., the chief) of any police department to issue
citation books to officers that conform to the requirements of G.L. c. 40, ? 21D.
�� Page 5
• Give a copy to the offender:
• At the time and place of the violation; or
• If not possible, by mailing or delivering a copy to the last known residence of the
offender within 15 days of the violation.11
• Give two copies to the police commander, who must retain one copy in a file and
send the other copy to the court clerk on the next court day.
• Offender options. The offender may:
• Confess by appearing in front of the court clerk or by sending through the mail full
payment of the fine; or
• Request a hearing in writing within 21 days after receiving notice of the violation.
• If the offender is found not responsible for the violation at the hearing, he or she
is discharged;
• If the offender is found responsible, he or she may simply pay the fine at that
point, which operates as a final disposition.
• Fail to pay the fine within the time allowed – in which case, the original enforcing
officer may apply for a complaint concerning the violation. 12
• If the parent or guardian of a child under 18 fails to file a certificate with the clerk that
shows the child completed the drug awareness program within a year, then the clerk
will notify the child offender, the parent or guardian, and the enforcing officer about
a show cause hearing to determine whether the fine should be increased to $1,000. In
deciding whether to increase the fine, the clerk may consider the parties’ financial
ability to pay, the offender’s ability to participate in a program, and the availability of
a suitable program.
• Disposition of Fines. Any civil penalties collected for marihuana possession shall be
provided to the town or city where the offense occurred.
11 A certificate that the citation was mailed is considered specific notice to the offender.
12 G.L. c. 94C, ? 32L takes great pains to state that the Commonwealth and its municipalities are
forbidden from imposing any other penalty for possessing an ounce or less of marihuana – for
example, the incident may not disqualify someone from obtaining financial aid, public assistance, a
driver’s license, or an adoption. The incident may never be entered into the CORI system. See G.L. c. 6,
? 167. Furthermore, G.L. c.
�� Page 6
The new law does not appear to affect an officer’s ability to search a person or vehicle.
The fact that a small amount of marihuana now draws a civil fine does not eliminate the
authority of officers to search people, their possessions and their vehicles based on probable
cause. Probable cause deals in probabilities, and officers will not know prior to their search
whether or not the potential offender has more or less than an ounce. The same is true for
vehicle searches. See Comm. v. Garden, 451 Mass. 43 (2008) (smell of “burnt marihuana”
permits officer to search vehicle occupants and the passenger compartment, while smell of
“raw marihuana” authorizes search of passengers, the compartment, and the trunk).
Moreover, even if a civil disposition is mandated, G.L. c. 94C, ? 32L authorizes “forfeiture of
the marihuana.” Any law that mandates drug forfeiture implicitly endorses searches by
police authorities to discover the drugs in the first place. Otherwise, the statutory scheme
will make no sense.
Challenges under the new law. Leaving aside the issue about whether this approach is
good public policy, there remain certain difficulties that officers may encounter when
implementing this law.
First, what happens if an offender refuses to identify himself, making it virtually impossible
for the officer to issue a meaningful citation? Failing to answer this question was a significant
oversight. The legislature may consider amending the statute to authorize arrest for any
offender who fails to provide his name and address upon request, or provides false
information, or provides information that he does not ordinarily use. See G.L. c. 85, ? 11C
(authorizing arrest of bicyclist who fails to identify himself).
Second, may officers run warrant checks of offenders who clearly qualify for a civil fine? The
answer is probably “yes,” given that officers currently check warrants on routine traffic
offenders.
Third, how do officers decide whether the offender possesses an ounce or more? Will they
have to weigh the drugs in the field in close cases? Many offenders will obviously possess
less than an ounce, but some cases may present close calls. Officers will need at least minimal
training in discerning whether an offender possesses an ounce or more.
Are there other issues that you have run into or anticipate? Please do not hesitate to e-mail
me your concerns. And let me know how this law is working “in the trenches.”
As always, I hope this update helps you and your colleagues on the street.
To: All MPTC In-Service Instructors and Professional Staff
Date: 11/11/2008
Re: Ballot Initiative on Marihuana Possession
Greetings my fellow legal instructors: Ballot initiatives that are approved by the voters
become law in thirty days. That is why Question 2, which advocated the decriminalization of
marihuana and was passed overwhelmingly, will take effect on December 4, 2008.
Important disclaimer. Here is my breakdown based on the language in the ballot initiative.
Please stay tuned, because the legislature may amend this law and/or the Attorney General,
Executive Office of Public Safety and Security (EOPSS), or the Massachusetts District
Attorneys Association may weigh in on the issue. In the meantime, I wanted to get you what
information I had, since working officers are asking for guidance.
New section, G.L. c. 94C, ? 32L, makes possession of an ounce or less of marihuana a
civil violation. As of December 4, 2008, G.L. c. 94C, ? 32L1 will subject an offender:
• 18 years old or older
• Who is 18 years old or older; and
• Is in possession of 1 ounce or less of marihuana;
• To:
• A civil penalty of $100;
• Forfeiture of the marihuana
1 This new section effectively repeals those provisions of G.L. c. 94C, ? 34 that penalize the possession of
an ounce or less of Class D marihuana. See Initiative Petition Sheet, Section 5. However, ? 34 still applies
to possession of more than an ounce, including the accompanying authority of G.L. c. 94C, ? 41 that
permits officers to make a warrantless arrest upon probable cause.
Law Enforcement Dimensions
John Sofis Scheft, Esq.
846 Massachusetts Avenue
Arlington, MA 02476-4728
Tel: 781-646-4377 Fax: 781-643-3069
www.ledimensions.com
�� Page 2
• Under 18 years old
• Who is under 18 years old; and
• Is in possession of 1 ounce or less of marihuana;
• To:
• A civil penalty of $100;
• Forfeiture of the marihuana; and
• Completion of a drug awareness program within 1 year of the offense
Nature of drug awareness program. Outlined in G.L. c. 94C, ? 32M, the drug
awareness program shall be developed by the Department of Youth Services
(DYS)2 and must provide “at least four hours of classroom instruction or group
discussion and ten hours of community service.”
Parental notification. G.L. c. 94C, ? 32L mandates that the parents or a legal
guardian receive notification about an offender under 18.3
Consequences for failure to complete drug awareness program.
• The failure of any offender to complete the program within 1 year may
result in the civil fine being increased to $1,000 pursuant to G.L. c. 94C, ??
32L and 32N. Furthermore, the offender and his parents shall be jointly
and individually responsible to pay the fine at that point.
• In addition, if the offender was under 17 at the time of the offense and fails
to complete the program, G.L. c. 94C, ? 32M authorizes commencing a
delinquency proceeding in juvenile court. This step seems designed to
effectively criminalize the misconduct and, upon a delinquency finding,
enable the juvenile court to re-impose the $1,000 fine and drug program
as a condition of probation.
This new law expands the definition of possession to include internal consumption.
G.L. c. 94C, ? 32L states that “’possession of one ounce or less of marihuana’ includes . . .
having cannabinoids or cannabinoid metabolites in the urine, blood, saliva, sweat, hair,
fingernails, toe nails or other tissue or fluid of the human body.” This expanded definition of
possession will justify officers in detaining those individuals who exhibit signs of marihuana
consumption.4 Should signs or an admission of marihuana consumption be confirmed –
even without any seizure of drugs -- officers will be free to impose the civil fine which, for
those individuals under 18, will trigger the additional requirement of a drug awareness
2 A strange choice for the lead agency, since most state educational programs in the drug abuse area are
developed by the Department of Public Health.
3 G.L. c. 94C, ? 32N requires that a copy of the citation be sent or delivered to parents or a legal
guardian.
4 At present, the odor of marihuana on clothing provides probable cause to search. Comm. v. Garden,
451 Mass. 43 (2008).
�� Page 3
program. For those officers who have frequent contact with youths (e.g., SROs), this
authority may become a potent tool to address even signs of casual marihuana consumption.
This new law does not apply to distribution, cultivation, OUI, prescription use, or local
regulations relating to public use. There are five critical limitations in the coverage of G.L.
c. 94C, ? 32L.
• Distribution. The new ? 32L does not repeal laws relating to “selling, manufacturing or
trafficking in marihuana.” This plain language means:
• A person who distributes, or possesses with the intent to distribute, marihuana is still
subject to criminal prosecution – including the offender who engages in these
activities with less than an ounce. See Comm. v. LaPerle, 19 Mass. App. Ct. 424 (1985)
(even drug residue may support a conviction for possession with intent to distribute,
provided that the surrounding circumstances indicate that the drug was, in fact,
possessed for distribution). Comm. v. Sauer, 50 Mass. App. Ct. 299 (2000).
Personal use includes smoking marihuana with someone else at the same time.
When two or more persons simultaneously and jointly acquire possession of a drug for
their own personal use, intending only to share it together, their only potential crime
is simple possession. However, purchasing drugs, even with a friend’s money, is
distribution if the offender transfers the drugs to his friend at a later time. Comm. v.
Minor, 47 Mass. App. Ct. 928 (1999).
• Manufacturing of marihuana remains a crime. Manufacturing is defined by G.L. c.
94C, ? 1 as “production, preparation, propagation . . . or processing of a controlled
substance, either directly or indirectly by extraction from substances of natural origin
. . . except . . . the preparation or compounding of a controlled substance by an
individual for his own use.” Thus, producing or preparing marihuana for anyone’s
separate use, in any amount, subjects the offender to criminal prosecution – although
preparing marihuana strictly for personal use (e.g., rolling a “joint” or “blunt” to
smoke) will not constitute manufacturing.
• Since trafficking requires 50 pounds of marihuana at a minimum, that conduct, of
course, remains criminal.
• Cultivation. The new ? 32L does not make any explicit changes in the law relating to
“cultivation.” This term appears in G.L. c. 94C, ? 32C, which states: “Any person who
knowingly or intentionally manufactures, distributes, dispenses or cultivates, or
possesses with intent to . . . cultivate [marihuana] shall [be punished].” Thus, officers still
have the authority to pursue a criminal charge against anyone who grows marihuana in
any amount.5 Pursuant to G.L. c. 94C, ? 41, officers may arrest this type of violator on
probable cause.
5 “Cultivate” means “to grow or tend (a plant or crop).” The American Heritage Dictionary (Office edition;
4th ed.; Houghton Mifflin Co.). Interestingly, G.L. c. 94C, ? 32C, which prohibits intentionally
�� Page 4
• Operating Under the Influence. According to G.L. c. 94C, ? 32L, all laws relating to
operating under the influence (OUI) of marihuana – see mainly G.L. c. 90, ? 24 – remain
in full force and effect. Thus, the diminished ability to operate a vehicle safely based on
the consumption of any amount of marihuana is still a crime, even though the actual
possession by the impaired operator of an ounce or less is now a civil event.
• Prescription Use. G.L. c. 94C, ? 32L preserves all “laws concerning the unlawful
possession of prescription forms of marihuana or tetrahydrocannabinol such as
Marinol.”6 Presumably, this language leaves intact the application of G.L. c. 94C, ? 33,
which creates a felony for anyone who uses deception to obtain a controlled substance
from a medical practitioner or person authorized to dispense the drug (e.g., a
pharmacist). G.L. c. 94C, ? 37, which makes it a felony to steal any controlled substance
from anyone authorized to possess the drug, also continues to apply.
• Local Law. G.L. c. 94C, ? 32L explicitly allows cities and towns to enact “ordinances and
bylaws regulating or prohibiting the consumption of . . . and . . . public use of marihuana
or tetrahydrocannabinol.” Just as municipalities now penalize the public consumption of
alcohol, ? 32L gives municipalities the “green light” to pass local laws that punish public
marijuana consumption and use.7 Remember, only consumption and use may merit
regulation because simple, public possession is already encompassed by ? 32L and its
civil fine structure.8
Court procedure for marihuana possession cases. G.L. c. 94C, ? 32N sets out the court
procedures applicable to these cases by explicitly incorporating the provisions of G.L. c. 40, ?
21D.9
• Officer procedures. An officer must:
• Issue a citation10 signed by the officer and, if possible, by the offender acknowledging
receipt; and
cultivating marihuana, does not limit its application to any specified amount. Any cultivation, even
that for personal use, draws a potential penalty of HC NMT 2 years, and/or Fine NLT $500, NMT
$5,000. Subsequent offenders face HC NLT 1 year, NMT 2? years, and/or Fine NLT $1,000, NMT
$10,000.
6 The Department of Public Health administers a medical marihuana program. See G.L. Chapter 94D.
7 Absent explicit arrest authority in the ordinance or bylaw, “wilfull” violators will still be subject to “in
presence” arrest based on the authority conferred by G.L. c. 272, ? 59 to local law enforcement.
8 Perhaps the Attorney General’s Office may want to promulgate a model local ordinance or bylaw
dealing with these subjects.
9 G.L. c. 40, ? 21D applies to certain bicycle and littering offenses, as well as any local ordinances or
bylaws. I like to refer to its procedural structure as “confess or contest.”
10 G.L. c. 94C, ? 32N directs the “person in charge” (i.e., the chief) of any police department to issue
citation books to officers that conform to the requirements of G.L. c. 40, ? 21D.
�� Page 5
• Give a copy to the offender:
• At the time and place of the violation; or
• If not possible, by mailing or delivering a copy to the last known residence of the
offender within 15 days of the violation.11
• Give two copies to the police commander, who must retain one copy in a file and
send the other copy to the court clerk on the next court day.
• Offender options. The offender may:
• Confess by appearing in front of the court clerk or by sending through the mail full
payment of the fine; or
• Request a hearing in writing within 21 days after receiving notice of the violation.
• If the offender is found not responsible for the violation at the hearing, he or she
is discharged;
• If the offender is found responsible, he or she may simply pay the fine at that
point, which operates as a final disposition.
• Fail to pay the fine within the time allowed – in which case, the original enforcing
officer may apply for a complaint concerning the violation. 12
• If the parent or guardian of a child under 18 fails to file a certificate with the clerk that
shows the child completed the drug awareness program within a year, then the clerk
will notify the child offender, the parent or guardian, and the enforcing officer about
a show cause hearing to determine whether the fine should be increased to $1,000. In
deciding whether to increase the fine, the clerk may consider the parties’ financial
ability to pay, the offender’s ability to participate in a program, and the availability of
a suitable program.
• Disposition of Fines. Any civil penalties collected for marihuana possession shall be
provided to the town or city where the offense occurred.
11 A certificate that the citation was mailed is considered specific notice to the offender.
12 G.L. c. 94C, ? 32L takes great pains to state that the Commonwealth and its municipalities are
forbidden from imposing any other penalty for possessing an ounce or less of marihuana – for
example, the incident may not disqualify someone from obtaining financial aid, public assistance, a
driver’s license, or an adoption. The incident may never be entered into the CORI system. See G.L. c. 6,
? 167. Furthermore, G.L. c.
�� Page 6
The new law does not appear to affect an officer’s ability to search a person or vehicle.
The fact that a small amount of marihuana now draws a civil fine does not eliminate the
authority of officers to search people, their possessions and their vehicles based on probable
cause. Probable cause deals in probabilities, and officers will not know prior to their search
whether or not the potential offender has more or less than an ounce. The same is true for
vehicle searches. See Comm. v. Garden, 451 Mass. 43 (2008) (smell of “burnt marihuana”
permits officer to search vehicle occupants and the passenger compartment, while smell of
“raw marihuana” authorizes search of passengers, the compartment, and the trunk).
Moreover, even if a civil disposition is mandated, G.L. c. 94C, ? 32L authorizes “forfeiture of
the marihuana.” Any law that mandates drug forfeiture implicitly endorses searches by
police authorities to discover the drugs in the first place. Otherwise, the statutory scheme
will make no sense.
Challenges under the new law. Leaving aside the issue about whether this approach is
good public policy, there remain certain difficulties that officers may encounter when
implementing this law.
First, what happens if an offender refuses to identify himself, making it virtually impossible
for the officer to issue a meaningful citation? Failing to answer this question was a significant
oversight. The legislature may consider amending the statute to authorize arrest for any
offender who fails to provide his name and address upon request, or provides false
information, or provides information that he does not ordinarily use. See G.L. c. 85, ? 11C
(authorizing arrest of bicyclist who fails to identify himself).
Second, may officers run warrant checks of offenders who clearly qualify for a civil fine? The
answer is probably “yes,” given that officers currently check warrants on routine traffic
offenders.
Third, how do officers decide whether the offender possesses an ounce or more? Will they
have to weigh the drugs in the field in close cases? Many offenders will obviously possess
less than an ounce, but some cases may present close calls. Officers will need at least minimal
training in discerning whether an offender possesses an ounce or more.
Are there other issues that you have run into or anticipate? Please do not hesitate to e-mail
me your concerns. And let me know how this law is working “in the trenches.”
As always, I hope this update helps you and your colleagues on the street.
