Article: What does a criminal defense attorney tell his children about Marijuana laws in New York?

Smoking weed has always been a topic parents have to broach with their kids at some point. It used to be easier – the law was very clear, just say no. But with the legal landscape around the New York State Marijuana laws changing so rapidly, and the availability of not just weed, but also special devices for smoking it at an all-time high (pun intended!), it’s difficult to know exactly what to say anymore. Especially when other states near ours, like Massachusetts, have implemented laws legalizing recreational use. Even New Jersey’s new governor has said he’ll sign a legalization bill if the legislature clears one.


So, we need to remember that even with all this talk of decriminalization, legalization and medical use, if you live in New York State, smoking marijuana recreationally can still get you in significant legal trouble. I have had numerous clients over the past few years be completely dumbfounded that they could be arrested for possessing or smoking small amounts of pot. “It’s decriminalized” they would tell me. I would say “I don’t think that word means what you think it means.” Usually decriminalization means no jail or criminal record for a first time offender who possesses a small amount for personal consumption, not that you can’t be cited or arrested.

Vaping is a whole different Ballgame

It’s especially important to be aware of the consequences of getting caught smoking as high school and college students get more brazen with vaping in school. In case you are unfamiliar with vaping, it’s the heating of cannabis, which is usually in liquid form, using a vaporizer device, the heat causes the active ingredients to be released in a vapor that you inhale, which can give you stronger effects than smoking. Vaping is also much more discreet in that it eliminates the odor and smoke you would get from burning the actual plant matter. They are becoming more available because of their legal recreational sale in other states and their medical sale here in New York.

Many vaporizer devices are also very tiny, around the same size as a pen, making them easy to carry in your backpack or pocket. And with vaping so discreet, instead of sneaking off to the bathroom to smoke, kids are now vaping without even leaving the classroom! This increased use is causing schools to crackdown on vaping, and even install sensors to help catch students vaping, which is why it’s crucial to know what kind of legal trouble could be in store if your kids get caught.

Knowing the Legal Consequences

If you are caught in possession of less than one ounce of cannabis (only the flower, not concentrates, compounds, oils, tinctures or edibles) it’s not classified as a crime. It’s not legal, but, within New York, a first offense for that small an amount will be treated like a traffic ticket, punishable by a $100 fine, and won’t give you a criminal record.

But this escalates quickly. For the same offense, if it’s your second within three years, you’ll be slapped with a $200 fine, and a third in three years not only raises the fine to $250, but is a misdemeanor punishable by a 15-day jail sentence. Other offenses, involving larger amounts or other activity beyond mere possession, are classified as misdemeanors or felonies, bring more severe penalties, including jail time.

Using any form of marijuana in public is a misdemeanor, punishable by a fine of up to $250, plus 90 days in jail. Vaping and concentrates can bring on even harsher penalties as at the current time many of the DA’s take the position that they are “creations” distinct from the natural flower.

Selling even a single joint can mean a $500 fine, plus up to three months in jail. Felonies for selling start at over 25 grams, with fines ranging from $5,000 to $15,000 and imprisonment for 4 to 15 years. Selling any amount to a minor can bring a 7-year prison term and $5,000 fine; use a child to assist in sales and you face a 4-year term and $5,000 fine.

Penalties for Students

High Schools as well as Colleges treat violations of their campus drug policies very seriously and students caught possessing or smoking cannabis, no matter the law in the state will suffer consequences from the school. I have seen Long Island High Schools suspend students anywhere from 5 days to 8 weeks for a first time marijuana possession. And if you are caught smoking in college your punishment will likely range from a warning and taking a class to being removed from campus housing.

The Manhattan DA’s Office is taking the lead

Even with decriminalized first or second possession, New York City recorded almost 16,000 marijuana arrests in 2017. And unfortunately, according to drug reform advocates, studies show that while whites and blacks in New York use marijuana at roughly equivalent rates, blacks are about four times more likely to be arrested and prosecuted for it. Earlier this year the Manhattan DA announced that he would mostly no longer prosecute people for possessing or smoking marijuana in public, one of the reasons being, to attempt to rectify that racial disparity.

The Future of New York State Marijuana Laws

Will New York’s comparatively harsh laws on marijuana use change in the future? Perhaps, but it hasn’t happened yet. In his January 2018 executive budget address, Gov. Andrew Cuomo called for a DOH-funded study of the potential impacts on public health, the economy, police and courts if New York State marijuana laws become more lenient and finally allow the legalization of recreational pot-use. In August of the same year, a workgroup was announced to draft the legislation of the study’s results.

How to be smart

  • Know the local laws where you are. Don’t assume something is OK and the next thing you know you are getting a summons
  • Just because it’s legal where you are, it doesn’t mean you can smoke in public. And obviously, never smoke while you drive.
  • If arrested, remember, you have the right to remain silent. Take advantage of your rights and be quiet.

About the Author

Scott J. Limmer is a New York criminal attorney practicing primarily in Nassau, Suffolk, and Queens counties. You can contact Scott anytime. He is available 24 hours a day, 7 days a week, year-round and your initial consultation is free.