1.15.10 Criminal Defense Newsletter

Drug Possession

Drugs and other controlled substances are governed by Chapter 94C of the General Laws of Massachusetts. Controlled substances are broken down into five schedules for the purpose of regulating the manufacture, distribution, dispensing, and possession of controlled substances. Examples of Class A substances are Heroin, Morphine, GHB, and Special K. Examples of Class B substances are Cocaine, LSD, Oxycontin, Ecstasy, Amphetamines, and Methamphetamines. Class C substances include Clonazepam, Vicodin, and Valium. Examples of Class D substances are Marijuana and Phenobarbital. Class E substances include lighter doses of prescription drugs containing Codeine, Morphine, and Opium.

In Massachusetts, unlawful possession of controlled substances is governed by Section 34 of Chapter 94C of the General Laws of Massachusetts. In order for an individual to be convicted of unlawful possession of a controlled substance, he or she must knowingly and intentionally possess a controlled substance. The statute exempts possession of all controlled substances that are obtained from practitioners, such as doctors, who are acting in the course of their professional practice.

Unlawful possession of most controlled substances is punishable by imprisonment of up to 1 year and/or a fine of up to $1,000. The individual’s motor vehicle license will also be suspended for a minimum of 1 year. A second offense of unlawful possession of most controlled substances is punishable by up to 2 years in the house of correction and/or a fine of up to $2,000. Again, the individual’s motor vehicle license will be suspended for a minimum of 1 year. These punishments apply to the unlawful possession of all controlled substances except for Heroin, Marijuana, and Class E substances.

Heroin

Possession of heroin is punishable by imprisonment in a house of correction for up to 2 years and/or a fine of up to $2,000. The individual’s motor vehicle license will also be suspended for a minimum of one year. A second offense of possession of heroin is punishable by imprisonment in the state prison for at least 2.5 years but no more than 5 years, or by a fine of up to $5,000 and imprisonment in a jail or house of correction for no more than 2.5 years. Again, the individual’s motor vehicle license will be suspended for a minimum of 1 year.

Marijuana

Possession of more than one ounce of Marijuana or a controlled substance in Class E is punishable by imprisonment in a house of correction for up to 6 months and/or a fine of $500. The individual’s motor vehicle license will also be suspended for a minimum of 1 year. A second offense of possession of more than one ounce of Marijuana is punishable by imprisonment in a house of correction for up to 2 years and/or a fine of up to $2,000. Again, the individual’s motor vehicle license will be suspended for a minimum of 1 year.

Possession of one ounce or less of Marijuana is not punishable as a criminal offense. An individual who is 18 years of age or older who is possessing one ounce or less of Marijuana must pay a civil fine of $100 and surrender the Marijuana to authorities. The individual is not subject to any other criminal or civil punishment.

If the individual is under the age of 18, in addition to paying a civil fine of $100 and surrendering the marijuana, he or she must attend a drug awareness program. The parents or legal guardians of the individual will be notified of the offense and of the availability of a drug awareness program and community service option. If an individual under the age of 18 does not complete the drug awareness program and the required community service, the civil penalty may be increased from $100 to $1,000. If this occurs, the individual and his or her parents will be jointly and severally liable for payment of the fine.

An individual who is a patient in a therapeutic research program cannot be convicted of unlawful possession of Marijuana for possessing Marijuana for personal use pursuant to the program.

Dismissal

Individuals who have been charged with unlawful possession of a controlled substance, but have not previously been convicted of a drug possession offense or of a drug-related felony under Massachusetts or U.S. laws, may have their case continued without a finding to a certain date or, if convicted, may be placed on probation. If the individuals do not violate any conditions of their continuance or probation during the given time period, the court may dismiss the proceeding against them at the expiration of the time period and order that all official records related to their arrest, indictment, conviction, probation, continuance or discharge be sealed. However, departmental records which are not public records, such as those maintained by law enforcement agencies, will not be sealed. These records will be maintained in a separate file by the department of probation for the sole purpose of being used by the courts in subsequent proceedings against the individuals to determine whether they qualify for this same exception in the future.

Any person who is convicted for the first time of possession of marijuana or a Class E controlled substance, who has not previously been convicted of a drug-related offense, shall be placed on probation unless the court files a written memorandum stating the reasons for not placing them on probation.