As of 2017, twenty-eight states currently allow for the legal use of some form of marijuana, with eight states and one territory allowing for recreational use. Legalization of recreational marijuana for those over 21 started with Colorado and Washington in 2012. Then, in 2014, the District of Columbia, Oregon, and Alaska all followed. In the most recent election, marijuana was on the ballot recreationally in five states—California, Arizona, Massachusetts, Maine, and Nevada. In all but Arizona, recreational use became legal for adults in 2016.
Medicinal marijuana was legal in Arizona, New Hampshire, Rhode Island, Connecticut, New Jersey, Delaware, Maryland, New York, Pennsylvania, Ohio, Illinois, Michigan, Montana, Vermont, and New Mexico prior to the 2016 election. Four states recently approved medicinal marijuana use in 2016 as well. Florida, Arkansas, Montana, and North Dakota all approved medicinal use in November. Currently, only six states restrict marijuana use altogether—Indiana, West Virginia, Kansas, Nebraska, South Dakota, and Idaho.
While several states have legalized marijuana, others including Texas are considering decriminalization. Currently, it is not only illegal to possess a usable amount of marijuana in Texas, any usable amount can result in jail time. Decriminalization simply means that states are considering revising their laws so that possession of small amounts of personal use will not result in prosecution that could lead to jail time. This means that the perpetrator will not result in a criminal record or jail sentence. This would be similar to a traffic citation.
Legalization, however, would result in no fine or arrest in cases of possession of marijuana when following the proper age, place, and amount. In the same way that alcohol is regulated, states that have legalized marijuana regulate the age of consumers, the channels for purchasing, the amount allowed, and the places in which it can be consumed. Violations of these particular regulations, would result in various offenses depending on state laws.
Under federal law, marijuana use is still illegal. State laws permitting marijuana use are in conflict with federal laws that prohibit the sale of marijuana, which is still a controlled substance. 21 U.S.C. § 812; 21 U.S.C. § 841(a)(1). Although it is unclear at the present time how the new administration will enforce these laws, marijuana cases are rarely prosecuted at the federal level.
In 2007, Texas enacted legislation that enabled officers to issue a citation and release individuals in possession of small amounts of marijuana. Tex. Code Crim. Proc. Art. 14.06 (c). Typically, individuals apprehended with four ounces or less of marijuana would normally be taken into custody and brought before a magistrate judge. With so-called “cite-and-release” provision of the legislation, those charged with a Class A or B misdemeanor could be released after the citation, instead of being taken into custody. The appearance before the magistrate and the penalties, however, for the Class A or B misdemeanor would remain the same. Tex. Code Crim. Proc. Art. 14.06 (c). Currently, Travis County, Hays County, and Williamson County take advantage of this provision. Dallas City Council recently turned down the use of the provision.
In the 2017 legislative session, Texas representatives will consider new legislation concerning marijuana.
If you have been charged with possession of marijuana, drug paraphernalia, delivery of marijuana, or possession of cannabis concentrate in north Texas, give us a call at (817) 203-2220 or contact us online.