What might not warrant a second look from cops in one state, could get you arrested in others. The laws regarding possession of marijuana are in a state of flux in this country, so knowing the laws where you are is crucial should you decide to have marijuana on you at any given time.

In just about every state, people are pushing for some level of marijuana reform, whether it’s complete legalization, decriminalization, or laws that will allow the medical use of cannabis. Marijuana is a hot-button issue and support for its availability is at an all-time high.

In 2012, voters in Colorado and Washington pushed their similar ballot efforts over the edge, becoming the first to legalize recreational marijuana use and possession. Both now allow adults to possess up to one ounce of marijuana without fear of arrest. The first serious bid to legalize recreational marijuana fell short in California in 2010, after many believed they would be the first to allow people to have their pot and smoke it too.  But expansion of legalization and decriminalization is considered inevitable, despite protestation from opponents.

But for now, most people in most places still face criminal penalties for simple possession of marijuana. And in those states, the laws aren’t so simple, and certainly aren’t in any way consistent.

Federal Law

248:365No matter where you are, possession of marijuana is against federal law. This means, federal agents could arrest you for a joint, even if you are in states like Colorado and Washington where recreational pot has been legalized. As of yet, however, the feds aren’t chasing down small-time pot smokers and are instead focusing on dispensaries and state-sponsored growers.  Still, it’s important that  you know, when you light up, you are breaking federal law and you open yourself to the possibility of federal charges.

State Laws

State laws are where the treatment of marijuana gets complex. Where you are, how much pot you are caught with, your criminal history, and what you plan on doing with the marijuana could all affect if you are arrested, what you are charged with, and the penalty you face.

Four states (plus DC) have legalized possession of up to one ounce of marijuana, those states are:

  • Alaska
  • Colorado
  • Oregon
  • Washington

Several other states have decriminalized possession of marijuana. This means you will likely face a ticket for possession of pot, not arrest or jail time. In other words, it’s treated similarly to speeding. The states that have decriminalized marijuana possession include:


  • California
  • Connecticut
  • DC
  • Maine
  • Massachusetts
  • Minnesota
  • Mississippi
  • Nebraska
  • Nevada
  • New York
  • North Carolina
  • Ohio

In all other states, things vary widely. Most consider possession of pot a misdemeanor charge. This means you could technically serve up to 1 year in jail for a conviction. Rarely, however, does that happen, particularly on a first offense.

Sentencing Alternatives in Marijuana Cases

Some states and local jurisdictions have alternative sentencing programs to avoid a criminal record for a simple marijuana possession charge. These laws are designed to give first-time offenders a sort of break. Just how you are afforded this “break” is dependent, of course can vary considerably, and you will typically need a lawyer to arrange this for you. Most are referred to as “diversion” programs like deferred prosecution, deferred sentencing, or conditional discharge. Often they are managed through separate “drug courts”, outside of the normal criminal justice procedures.

In these cases, you may be required to serve a short period of probation or to comply with certain orders of the court, which usually includes mandatory drug addictions treatment programs, education, or substance abuse classes like narcotics anonymous. Upon successful completion of these requirements, and with no other intervening trouble, the charges are dropped and you can carry on with your life.

However, if this isn’t your first offense, the chances are greater that you may have to serve some jail time.

For more information on the specific marijuana laws of your state, review our state-by-state guides.

Downsides to Deferred Sentencing Programs

If you fail to complete a program, either but not completing the required education, failing a drug test, or getting arrested again, you can be much worse off then if you just took a guilty plea in the first place.  Most programs require you to complete give up your right to contest the facts of the charges against you. You are at their mercy.

For most people, this isn’t a bad deal. If the opportunity to keep your record clean is the priority, then it makes sense. But the downsides are worth considering with your attorney.

Regardless of where you are, if you are arrested for marijuana possession, a criminal defense attorney may be able to help minimize the repercussions by defending your rights and helping you to understand your legal options. Let us put you in touch with a local lawyer today.