person holding marijuana in hands

Recreational Marijuana in New York State

The recent changes to the marijuana laws in New York State will have broad changes in criminal law beyond the new legalization of recreational cannabis. 

New marijuana laws in New York State:

Now, it is legal for a person 21 years of age and older to possess up to 3 ounces of cannabis or 24 grams of concentrated cannabis. Soon it will be legal to sell marijuana in New York State but laws and regulations concerning the sale of marijuana are in the process of being finalized. 

Have you been convicted of a marijuana offense in the past?

The new law allows those convicted of a marijuana-related offense to have their criminal records expunged. Expungement is where a criminal arrest and conviction are completely destroyed and erased from your record. This will be automatically done by the State and Local Courts. 

What are the new marijuana offenses?

While possession of less than three ounces of cannabis is now legal, possession of any amount over that limit carries criminal penalties. There are certain limits to how many plants you can grow and possess in a household. 

New marijuana offenses include:

  • Possessing over 3 ounces could result in a top fine of $125.
  • Possessing over 16 ounces is punishable with a misdemeanor.
  • At your residence, an individual can possess up to 5 pounds of marijuana.
  • An individual can grow three “mature” plants and three “immature” marijuana plants, or a maximum of 12 plants per household. Plants must be secure from any individual under the age of 21 years.

How do these new marijuana laws change criminal law in general?

Violations of the new marijuana laws will result in arrest and prosecution. From reading the New York State bill this will be a highly regulated industry designed primarily to create revenue for the state.

Driving under the influence of marijuana:

Vehicle and Traffic Law section 1192.4, (Driving While Ability Impaired by a Drug) has not been changed by these new marijuana laws. It stands to reason that with the new marijuana laws, New York State law enforcement, will develop new procedures to investigate, arrest and prosecute those who are operating a motor vehicle under the influence of marijuana. The criminal defense of VTL 1192.4 marijuana offenses currently remains the same focusing on levels of impairment and probable cause to arrest as there is yet a reliable field test that police can definitively use to determine the level of marijuana in someone's system.

The warrantless search of an automobile:

Under New York State Law a distinct odor, such as the smell of marijuana, can provide probable cause for officers to believe that an automobile contains contraband, and thus, a search warrant is not required to search the vehicle.

Considering the changes to the New York State marijuana laws it stands to reason that the smell of marijuana, by itself, can no longer provide probable cause for police officers to search an automobile. In States where marijuana has been legalized, without more, the smell of marijuana alone is no longer justification for a warrantless search of a vehicle.

Can Child Protective Services investigate me based upon legal marijuana use?

No, but CPS investigations will continue to focus on neglect, abuse or maltreatment of children under the new marijuana laws. If marijuana use and/or abuse falls under these factors a CPS investigation will be triggered and potentially an indicated finding. As it is today, if a CPS caseworker and the local county attorney determine that a child is in “imminent danger” they will apply to the New York Family Court, without a parent’s knowledge, to remove the child from the home.

If I am arrested under these new marijuana laws what should I do?

Immediately, call a criminal defense attorney. At the law firm of Proto, Sachs & Brown, LLP, our attorneys have decades of experience in the prosecution and defense of drug crimes, including marijuana possession and sale. The attorneys are published authors regarding drug crime defense and criminal defense in general.

Contact us today at (914) 840-5104 for a free initial consultation to discuss your rights and options for proceeding forward to protect your rights. In addition, if you are the subject of a CPS investigation call our office as our attorneys are experienced and aggressive CPS defense attorneys and can provide immediate information to protect you and your family.