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What Constitutes a Possession with Intent to Distribute Marijuana?

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Attorney Jason Chan

244 Brighton Avenue, Suite 105
Allston MA 02134


Phone: 781-343-1DUI (781-343-1384)
Fax: (617) 254-8001

In Massachusetts, the possession of less than an ounce of marijuana has been decriminalized.  The Supreme Judicial Court has ruled that the sale of marijuana or possession with intent to distribute less than an ounce of marijuana is still illegal.  Therefore, the police and the district attorney can arrest and prosecute a person for having less than an ounce of marijuana if they believe the person was trying to distribute the marijuana. (picture taken by Deegan Marie

moneyThe question that the SJC has yet to rule on is what constitutes possession with intent to distribute.  In the most recent SJC opinion regarding marijuana the justices wrote that it is still an open question in determining what should be regarded as distribution. 

At first look most people would say why is it such a big deal to try to define the term distribution when it comes to marijuana.  Well when it comes to distributing less than an ounce of marijuana there are a lot of scenarios that it may or may not cover.  Most people would agree that if a defendant got money in exchange for giving someone an ounce of marijuana it should be considered possession with intent to distribute.  There are a lot of less clear cut scenarios that the SJC still needs to rule on. 

Take this scenario as an example.  4 people are hanging out at the park together.  All four people are passing a marijuana cigarette and all taking turns smoking the marijuana.  The marijuana cigarette holds less than an ounce of marijuana.  The police come up to them at the park.  Could the police arrest each of the 4 people with possession with intent to distribute marijuana?  Even though most people would consider this straight possession and not distribution the law has not defined this scenario.  In fact the SJC stated that this situation has yet to be defined as possession or possession with intent to distribute marijuana. 

In the scenario where 4 people are smoking marijuana, technically one could say that the each of the 4 people is distributing marijuana to the other.  However, hopefully the SJC will see the flaw in this argument as each person is really possessing the marijuana for personal use and not for sale.  It will be only a matter of time before the courts need to define the scenario of multiple defendants enjoying marijuana together.     

Boston Globe Article of SJC Ruling on Selling Marijuana 


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