The Nitty-Gritty of the Sticky Icky

  • Indiana has no use—and no tolerance—for cannabis.
  • Possession of marijuana starts as a Class B misdemeanor, punishable by a maximum fine of $1,000 and up to 180 days in jail.
  • No one wants to spend the rest of their life explaining a conviction, so if you’re facing criminal charges, make sure you hire an experienced defense attorney.

Cannabis: God’s Mistake?

Although it grows naturally upon the earth, marijuana remains illegal to possess for recreational purposes in the majority of the United States, including Indiana. For the past several years, however, a legalization movement has been building for both medical and recreational marijuana. In August of 2013, following the enactment of state-level legislation that broadly legalized the devil’s lettuce in Washington and Colorado, the Department of Justice announced in a memo that it was deferring its right to challenge the states’ actions. In other words, so long as the states were handling their business in a reasonable manner—avoiding things like interstate trafficking and promoting drug use to children—the federal government wasn’t going to be inclined to interfere. Since that time, 33 states have adopted laws allowing for medical marijuana use, with 10 of those fully embracing the recreational sale and use of cannabis. 

Not everyone at the federal level is on the same page. The Drug Enforcement Administration stubbornly continues to insist that marijuana has “no currently accepted medical use”—even though it has exactly that in 33 of our 50 states. The Justice Department’s hands-off strategy seems to have had little effect on the DEA’s stance, which is that cannabis is one of the worst substances you can introduce into your body. It’s classified as a Schedule I narcotic—along with heroin, ecstasy, and LSD—which means that our federal government officially considers Caribbean cabbage to be more dangerous than cocaine, methamphetamine, oxycodone, and fentanyl (all of which are Schedule II).  

While the DEA’s position can most generously be described as out-of-touch, some still find it persuasive. One of these people is Indiana Governor Eric Holcomb, who’s on record as saying he’s unwilling to consider cannabis legalization, “especially since it is illegal right now according to the federal government.” While this has the appearance of a principled stand, keep in mind that it didn’t prevent Holcomb from signing a law that legalized CBD oil in Indiana, despite a formal opinion published by the State Attorney General saying its possession was still unlawful at the federal level.

What’s the Rule in Indiana?

Indiana doesn’t tolerate marijuana possession for any reason. You might be an epileptic, irradiated cancer patient who’s suffering from glaucoma, but as far as the State is concerned, that’s no excuse for dancing with Mary Jane. Indiana Code section 35-48-4-11(a) is broad and unforgiving: 

A person who: 

(1) knowingly or intentionally possesses (pure or adulterated) marijuana, hash oil, hashish, or salvia;  

(2) knowingly or intentionally grows or cultivates marijuana; or 

(3) knowing that marijuana is growing on the person’s premises, fails to destroy the marijuana plants; 

commits possession of marijuana, hash oil, hashish, or salvia, a Class B misdemeanor. 

A Class B misdemeanor carries a maximum penalty of 180 days in jail and a $1,000 fine. As is almost always the case, though, your charges can increase in severity according to a number of aggravating factors. If you have a prior drug conviction, for example, you’ll be facing a Class A misdemeanor, which carries a maximum penalty of 365 days in jail and a $5,000 fine. If you have a prior and a significant amount of weight (30 grams of marijuana; 5 grams of hash or salvia), you’ll be charged with a Level 6 felony, which carries a maximum penalty of two-and-a-half years in jail and a $10,000 fine.

Speaking of weight, if your stash is too hefty, you can find yourself charged with dealing. Pursuant to Indiana Code section 35-48-4-10(a):

A person who:

(1) knowingly or intentionally;

(A) manufactures;

(B) finances the manufacture of;

(C) delivers; or

(D) finances the delivery of;

marijuana, hash oil, hashish, or salvia, pure or adulterated; or

(2) possesses, with intent to:

(A) manufacture;

(B) finance the manufacture of;

(C) deliver; or

(D) finance the delivery of;

marijuana, hash oil, hashish, or salvia, pure or adulterated;

commits dealing in marijuana, hash oil, hashish, or salvia, a Class A misdemeanor.

In order to convict you of dealing based on possession, the State must produce “evidence in addition to the weight of the drug” that you were planning on distributing the forbidden plant to others. This additional evidence usually takes the form of baggies and scales, but it could be anything that points to dealing. If the police catch you with a sufficient amount of contraband in your possession—10 pounds of marijuana or 300 grams of hash or salvia—they’re statutorily empowered to assume it’s not all for you. This means they can charge you with dealing, even without any additional evidence, and you’ll be facing a Level 5 felony, which carries a maximum penalty of six years in jail and a $10,000 fine.

If you have a prior conviction for dealing, you’ll also be looking at a felony. If you’re caught with less than 30 grams of marijuana (or 5 grams of hash or salvia), that’s a Level 6. If you have between 30 grams and 10 pounds of marijuana (or between 5 and 300 grams of hash or salvia), that’s a Level 5. If you’re selling silly spinach to a minor, that’s also a Level 5 felony, in addition to being a terrible idea.

The Path of Least Resistance

Let’s say you’re a forward-thinking individual. You believe in your heart that it’s a categorical error to classify cannabis as a Schedule I controlled substance. You can see which way the trees are blowing, and you strongly suspect that marijuana will eventually be legalized, even in Indiana. None of these facts will prevent you from being arrested for possession.

If you’re confronted by law enforcement, you want to remain cooperative. Resisting—either fighting or fleeing—is one of the worst things you can do. This starts as a Class A misdemeanor, and there’s always room to make it worse. If you’ve been detained by the police, you should embrace your right to remain silent. The Supreme Court held in Grunewald v. United States that the Fifth Amendment’s privilege against self-incrimination isn’t just for guilty people—it also “serves to protect the innocent who might otherwise be ensnared by ambiguous circumstances.” If you don’t have an attorney present, do yourself a favor and plead the Fifth. This is even more crucial if you haven’t been charged yet. 

What Can a Lawyer Do for You? 

There’s a popular conception that smoking weed isn’t a big deal. Ordinary people are able to do it regularly without obvious consequences. The reality for Hoosiers, however, is that every time you puff, you’re rolling the dice. No one expects to get caught breaking the rules, but it happens to people every day, and the potential fallout is very real. Even if you aren’t convicted of anything, your arrest creates a public record that you were charged with a crime. If you attend a school like IUPUI, they’ll likely suspend you regardless of the disposition of the criminal case. If you are found guilty, you may end up answering for it the rest of your adult life. No matter what sort of application we’re talking about—employment, military, academic—a criminal conviction isn’t something you want to have to include. 

When your entire future is at stake, it’s important to hire a knowledgeable and savvy attorney to guide you through the judicial process. With the Marc Lopez Law Firm, you’ll get an entire team of experienced defense lawyers fighting on your behalf. If you or a loved one has been charged with possession of marijuana, call the Marc Lopez Law Firm at 317-632-3642. Initial consultations are free of charge.