So Pot is Legal in Your State

But officer, pot is legal in my State….

This election day, two states are reported to have legalized recreational use of marijuana – Colorado and Washington.  Oregon voters were also presented with the issue on their ballots but voted against recreational legalization.  In addition to the legalized recreational use, according to the National Organization for the Reform of Marijuana Laws or NORML, another 18 states have authorized marijuana use for medicinal purposes.  Iowa is not one of them.  Marijuana cultivation, possession, and distribution is still illegal under Federal law.

The question that has started to rise and will most likely arise with greater frequency is, what happens if an individual from a state where marijuana is legal for recreational or medicinal use is caught in possession of pot in a state where it is illegal.  The first answer to the question is relatively straight forward – that person will most certainly be arrested and prosecuted for the offense.  The State of Iowa still has some of the toughest marijuana laws in the nation.

After the individual is arrested and charged however, there are two likely defenses, in addition to the traditional defenses such as illegal search and seizure, which could be attempted.

First, one might be tempted to argue that one state must give another state’s laws full faith and credit under the Federal Constitution.  Unfortunately that argument does not ordinarily apply to criminal statutes.  For example, just because it is legal for a 21 year old to have sex with a 14 year old in one state, does not make it legal for that same activity to occur in a state where the age of consent is 16.  That might be an extreme example but think about it; just because you can drive 70 mph on Interstate 35 or Interstate 80 in your state does not mean that you can drive 70 in a state where the posted speed limit is 65 on the same interstate.  The same argument will be made regarding marijuana possession.  If it is illegal in the state you are in at the time you possess it, chances are you can still be found guilty.  Ones efforts are probably better focused on other more legitimate defenses.

The second and more promising potential argument, at least in the State of Iowa, relates to the possession of medicinal marijuana.  Iowa Code §124.401(5) prohibits the possession of controlled substances, including marijuana.  However, it specifically states: “It is unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner….  Consequently, an arguable defense to the charge is built right into the statute IF the person possessed the pot pursuant to a valid prescription or order of a practitioner.

This exception would NOT apply to felony possession offenses such as Possession with Intent to Deliver, or Manufacturing. NOTE: Sharing pot qualifies as “delivery” in the State of Iowa!  Furthermore, if the prescription has expired or the amount possessed exceeds the amount authorized under that prescription, this defense will not have a chance.

Obviously, it should go without saying that the best defense to any crime is not to place oneself in a position where they are at risk of getting arrested and charged in the first place.  That is never a pleasant experience.  That being said however, some of us are willing to take greater risks than others.  If you happen to be a risk-taker driving through the State of Iowa, understand that there is a good chance of having to endure the unpleasant experience of Iowa’s drug interdiction efforts which are certain to increase with other states legalizing recreational use of marijuana.  If you find yourself in such a position, you will wish that you had first educated yourself on your constitutional rights that apply to a traffic stop/interdiction situation.  Effectively exercising your rights can make all of the difference.  Remember GRL Law’s tag line: Shut up; Wise up; Lawyer up.

1.    Shut up – anything and everything you say can and will be used against you.  If you admit to the officer that you only intended on “sharing” your pot with your friends – you just admitted to a Felony in the State of Iowa.  Shut up!

2.    Wise up – You do not have to consent to a search of your person or vehicle.  If you or your friends may be in possession of something illegal, exercise that right.  The more obstacles a law enforcement officer must jump over, the greater chance there is of him making a mistake on your case.

3.    Lawyer up – Don’t go at it alone.  The consequences in the State of Iowa are still severe and a conviction remains on your record in this state for life.

Don’t let a fun recreational trip cross country turn into an eye-opening encounter with another state’s criminal justice system.  At the very least educate yourself before you leave home.

Know your rights; Exercise your rights; Preserve your freedom.