Our Criminal Defense Lawyers Explain If Marijuana Is Legal In New York.

If you are reading this at or around the time this blog is being written, the answer is no, marijuana is not legal to possess in New York. As of January 2021, New York only allows for a prescription for medicinal marijuana. Recreational marijuana is largely decriminalized, but there are still some potentially serious repercussions if you are found to be in possession of marijuana.

However, Governor Cuomo has recently announced a proposal to legalize recreational marijuana in New York.

Currently there is not a firm time frame for legalization of marijuana. However, Governor Cuomo’s position on legalization seems to be driven on the desire to increase tax revenue by more than $300 million dollars.

If marijuana is legalized in New York can I still get in trouble for using marijuana?

Potentially, yes. Federally, marijuana remains illegal. President Obama had a policy wherein the federal government would not target a state that had legalized marijuana. In theory, President Biden may also follow that same policy.  This seems likely as more and more states continue to legalize marijuana.

As of November 2020, only three (3) states had no marijuana-legal option – Idaho, Nebraska, and Kansas. Almost twenty (20) states have implemented medical marijuana, including New York. Sixteen (16) states now have legal, recreational marijuana for adults, including New York’s neighbors Massachusetts, Vermont, and by recent vote New Jersey.

If marijuana is legal in New York, can I grow my own marijuana?

Regardless of whether marijuana possession becomes legal in New York, it is still likely that growing marijuana on your own will remain illegal while New York tries to grab as much tax revenue as possible.

If marijuana is legal in New York, can I get arrested for selling it?

It is likely that even if possessing marijuana becomes legal in New York, selling marijuana will remain illegal other than for licensed marijuana dispensaries. Check back with our website as developments occur to fully understand potential issues that may exist even if marijuana possession is legal.

Are there any circumstances where marijuana use will still be illegal in New York?

Yes, surely there will still be some regulation involving marijuana. Most states have chosen legal use at the age of twenty-one (21). If you are eighteen (18) you can be charged as an adult for most crimes, so if New York only legalizes marijuana for individuals twenty-one (21) and over, there are still situations where marijuana possession crimes will be prosecuted.

DWAI or Driving While Ability Impaired by Drugs will almost surely still criminalize driving while under the influence of marijuana. As with alcohol, the legality of the substance itself will not change the illegal nature of doing so and then choosing to operate a vehicle.

It is also still likely that possessing large amounts of marijuana will still be illegal. This would be the state’s attempt to regulate who is selling and possessing significant quantities of marijuana.

If you are on probation or parole, you may still be denied the right to use marijuana. Depending on the circumstances of your offense, probation and parole commonly prevent someone they supervise from drinking or using any substances, even if legal, arguing that the effects are not conducive to the growth and goals of their supervision. Regardless of what your individual case includes, denying the right to drink alcohol has been found constitutional, so if probation or parole says the same about marijuana, be prepared for a similar finding.

You should also expect individual venues will ban smoking marijuana, like the bans you see on cigarettes or alcohol. If you cannot smoke or drink somewhere currently, it is a safe assumption you will not be able to smoke marijuana there either.

I currently use marijuana medicinally does this mean I can stop worrying about any restrictions or requirements and just smoke recreationally?

Legally, yes, however this is a dangerous plan. If you are using marijuana to aid any medical issue you have, increasing the amount can have drastic repercussions. You should consult your doctor prior to doing so, just as you would anytime you are combining any medications, or medications and alcohol.

Also, there are circumstances where you may not be able to consume marijuana, such as if you are on probation or parole. If you are prescribed marijuana for medicinal purposes, and not using recreationally, you have a much stronger likelihood of a court striking that condition and allowing your use to continue.

The police searched my car because of an odor of marijuana. If marijuana becomes legal, can my case be dismissed?

Courts have long held that the odor of marijuana provides probable cause for police to conduct a warrantless search. Many searches that occur because of the smell of marijuana result in far more serious cases – such as possession of a firearm, or more serious drugs like heroin or cocaine.

It remains to be seen how New York courts will deal with legal marijuana. If an officer smells an alcoholic beverage on your breath, it rarely results in a search (though, if you were driving, may result in field sobriety tests and a request for a breath sample). With the legalization of marijuana, some courts may believe that the odor of marijuana does not create a suspicion of criminal activity. Potentially, thousands of searches conducted of rooms, cars, backpacks, pockets, and others, could no longer be constitutional.

If you are arrested for ANY offense that involved a warrantless search, you should talk to your lawyer and be aware of this potential new issue.

If I have a past marijuana conviction, can I get it expunged or sealed?

You may already be able to do so!  If you do not qualify under that statute, the new marijuana legislation may provide a new opportunity to readdress a past conviction. If a past marijuana conviction is negatively affecting your life in any way, contact an attorney to see if the law has any potential benefits for you.