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RESPONSE TO POLICY ON MARIJUANA POSSESSION

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On August 28, 2019, the Jefferson County Attorney announced a new policy stating that simple possession of marijuana charges involving an amount of less than 1 ounce would no longer be prosecuted.  Given the evolving nationwide discussion on the legalization of marijuana, it is important for the public to recognize that the new policy does notlegalize marijuana in Jefferson County.  Marijuana possession can still be prosecuted as a crime depending on the circumstances.  Marijuana possession will also continue to provide police with a basis to search for evidence of other crimes.  Therefore, it is important to understand the effect of the new policy in terms of a limited decriminalization as opposed to outright legalization.  The bottom line is that possession of marijuana is still a crime.

            Possession of marijuana remains illegal under Kentucky law (KRS 281A.1422).  Kentucky law treats possession of marijuana as a misdemeanor offense punishable by up to 45 days in jail and a $250 fine.  While a prosecuting authority has the discretion to decide which cases to prosecute, the prosecuting authority does not have the power to change state law.  The new policy declining to prosecute marijuana possession charges only applies to the following situations:

1. Where an adult, over 21 years of age, is charged with the single offense of possession of marijuana, 1ounce or less; and

2. Where an adult, over 21 years of age, is charged with multiple offenses and the possession of marijuana charge, 1 ounce of less, is the highest class of offense, however the other charges brought may still be prosecuted.

These two situations are subject to several exceptions.  The County Authority will continue to prosecute possession of marijuana charges in the following circumstances:

1. Where the person possessed a firearm at the time of the offense;

2. Where there is an indication that the person is trafficking in marijuana;

3. Where the person was driving under the influence of marijuana;

4. Where there is the public display, use, or consumption of marijuana;

5. Where the person is publicly intoxicated by marijuana; and

6. Where the person in possession of marijuana is less than 21 years of age.

            Because marijuana remains illegal under Kentucky law, possession of marijuana can provide the police with probable cause to search a person or property.  Kentucky courts still follow the decision of the Kentucky Court of Appeals in Dunn v. Commonwealth, 199 S.W.3d 775 (Ky. App. 2006), which states that even the smell of marijuana can establish probable cause for the police to search a person and property.  If police find evidence of more serious crimes, then the possession of marijuana charge will be prosecuted alongside the other charges under the plain terms of the new policy.  Marijuana may also be seized by the police even if the amount is less than 1 ounce and the person in possession did not receive a citation.  Additionally, possession of marijuana may also be used to establish the violation of probation or parole.   

            While possession of marijuana charges involving 1 ounce or less may longer be prosecuted in Jefferson County, possession of marijuana may still be used against you because possession of marijuana remains illegal under Kentucky law.  If you are facing charges that involve the possession of marijuana, the best way to fight the charges against you is to retain strong legal counsel, so you can have your case thoroughly reviewed, go over your legal options, and employ the most effective defense strategy.  Louisville criminal defense attorney Ron Aslam has extensive experience working in the Kentucky criminal justice system. Ron is a former prosecutor, and he has spent many years working on both sides of the fence in a criminal proceeding. Ron thoroughly understands the inner workings of the prosecutor’s office, the common tactics they use, and how to successfully defend against these tactics.  If you are facing a drug possession charge, Ron will fight hard to protect your rights, and he will put his experience to work to explore every potential legal avenue toward minimizing the negative consequences as much as possible.  Attorney Ron Aslam is ready to go to work for you and to help preserve your legal rights and freedom.  Call the Ron Aslam Law Office today at (502) 536-7981 to set up a free initial consultation or visit our website at ronaslamlaw.com.