July 1, 2011 was the new “Independence Day” for marijuana users in Connecticut. It was on that date that the new Public Act 11-71 became effective. The new act reflected Connecticut’s capitulation to a growing national trend to de-criminalize marijuana. Prior to that date, possession of any amount of marijuana less than four ounces was a misdemeanor punishable by up to one year in jail and/or a fine.
Frankly, no one was going to jail for possession of less than four ounces. Most defendants were utilizing several pre-trial diversionary programs, the most common of which was the Community Service Labor Program (CSLP). Under that program a case was continued and the defendant was required to complete 14 days of community service and attend a drug education course. Successful completion meant a dismissal.
Even if you had previously used the CSLP there were still other diversionary programs that still could be sought. The net effect, in cases of possession of minimal amounts of the drug, was a burden on the courts, prosecutors and the Court Support Services Division that monitored these programs.
The legislature did not legalize possession of marijuana. That is a critical distinction. Rather, the offense was relegated to an infraction. By definition in Connecticut an infraction is not a criminal offense. “Conviction” of an infraction does not carry with it the impediments that accompany a misdemeanor conviction.
The new law provides: “(a) Any person who possesses or has under his control less than one-half ounce of a cannabis-type substance [marijuana] . . . shall (1) for a first offense, be fined one hundred fifty dollars, and (2) for a subsequent offense, be fined not less than two hundred dollars or more than five hundred dollars.” Fines can be paid by mail, thus avoiding court appearances and freeing the court docket for more serious matters.
The Act further provides that a police officer seizing the substance shall cause it to be destroyed. On its face this portion addresses the burden that simple possession cases were putting on the state toxicology laboratory. The problem is that it makes an officer’s determination that a substance was marijuana unassailable.
For one, pot dealers have ripped off unsuspecting buyers in the past by selling oregano. The two substances appear somewhat similar (although anyone who has ever eaten pizza would certainly smell the difference). Police officers can perform a rudimentary drug test, but once the item is destroyed there is no way to contest the officer’s conclusion. One would wonder why that mattered if the arrest did not lead to anything more than a fine with no lasting criminal record; read on.
For those above the age of 21 (good news for the aging baby boomers who were the high-guys and gals of the ’60’s) the only penalty is a fine. For those under 21 there is a further penalty–suspension of their driver’s license for 60 days. Many experienced criminal defense lawyers I have spoken to were unaware of this secondary penalty. While that enhanced penalty would make sense if the youngster possessed the drug in a car, license suspension applies no matter where the offender is discovered.
Possession of any amount of marijuana with the intent to sell it is a felony, punishable up to seven years in prison, with enhanced penalties if the offense occurs within 1500 feet of a school (as”the crow flies”). In most Connecticut cities one cannot travel anywhere without being in that proximity to a school.
Determining someone’s intent is difficult so courts look at certain circumstances as indicia of the intent to sell. Among those indicators are the concurrent possession of a scale, packing material, money, or weapons. Thus, take the youngster who is stopped for a traffic violation and has 3 grams of pot. That amount qualifies as an infraction. But put that weed near a small scale and what could have been a non-criminal infraction is now a felony!
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