Much has been said around the country recently about the legalization of marijuana, both for medical use as well as recreational use. Opinions vary greatly on how states, and the country, should address the issue. On one end of the spectrum, there are those who feel any type of marijuana use should be illegal, criminalized, and result in jail sentences. On the other end, there are individuals who feel that marijuana use, in general, should be legalized, both for medical as well as recreational use. Although federal law remains firm on its stance regarding cannabis, state laws are changing rapidly throughout the United States.
Marijuana Use is Illegal Under Federal Law, Period
To date, many states have legalized marijuana use for medical purposes. Others have decriminalized possession of small amounts of recreational marijuana or legalized recreational use altogether. Still others have held firm to laws making marijuana use of any kind, illegal.
Despite changes throughout the country on a state level, marijuana use of kind under Federal law is illegal. In fact, under the Controlled Substance Act, cannabis, marijuana is a Schedule I controlled substance. As such, it is considered to have no medicinal value and a high potential for abuse. It is listed as a Schedule I controlled substance along with other drugs such as heroin, LSD and “Ecstasy.”
Even individual possession of small amounts of marijuana is illegal under federal law. Therefore, it is important to understand that even if limited possession is legal in your state, you can still be prosecuted under federal law. Conviction for possession can mean:
- 1 year in jail
- Fines up to $1,000
The sale of marijuana of any amount is a felony under federal law and can mean a minimum punishment of:
- 5 years in jail
- Fines up to $250,000
Cultivation, or growing, marijuana plants can mean similar penalties:
- 5 years in jail
- Fines up to $250,000
Know that these are minimum penalties. Punishments increase as the number of possession offenses increase or the amount of marijuana sold or cultivated increases. For example, if you are convicted of selling 1000 kg or more of marijuana, you face felony charges, 10 years to life in jail, and fines up to $1,000,000.
The Current State of Marijuana Under New Mexico Law
Federal law always trumps state law. It is important to understand that despite changes under the law in New Mexico, federal prosecutors can still file charges against an individual under federal law under the Controlled Substances Act.
New Mexico Law Allows for Limited Medical Marijuana Use
In 2007 New Mexico enacted the Lynn and Erin Compassionate Use Act allowing limited and regulated use of medical cannabis for “debilitating medical conditions.” The Act exempts qualifying individuals from criminal prosecution for possession and use of marijuana. Qualifying individuals include:
- Qualified Patient – a qualified patient under the Act includes residents of New Mexico that have been diagnosed by a practitioner with a debilitating medical condition. The patient must also have been issued a registration card in accordance with the Act. In addition, the patient must not be in possession of more than an “adequate supply” of cannabis. An adequate supply is defined under the Act and is and amount intended for a period of time not to exceed three months.
- Qualified Patients’ Primary Caregivers – a patient’s caregiver must be a resident of New Mexico, over the age of 18 years old, and designated by the patient’s practitioner as being responsible for managing the patient and his or her medical marijuana use. Again, to be exempt from criminal prosecution, the caregiver must not be in possession of more than an adequate supply of cannabis.
- Practitioners – those medical professionals in New Mexico licensed to prescribe drugs subject to the Controlled Substances Act.
- Licensed Producer – any licensed individual or entity in New Mexico determined to be qualified to produce, possess, distribute or dispense cannabis.
Medical Marijuana Use is Only Legal to Those Suffering Debilitating Medical Conditions
Although a small step closer in the legalization of marijuana, the Lynn and Erin Compassionate Use Act only provides exemption to criminal prosecution for those patients, caregivers, and practitioners involved with medical marijuana used to treat debilitating medical conditions. The Act includes eight such conditions:
- Cancer
- Glaucoma
- Multiple sclerosis
- Damage to the nervous tissue of the spinal cord, with objective neurological indication of intractable spasticity
- Epilepsy
- Positive status for human immunodeficiency virus or acquired immune deficiency syndrome
- Admitted into hospice care in accordance with rules promulgated by the department
- Any other medical condition, medical treatment or disease as approved by the department
Notice that the eighth condition gives the department of health the authority to determine additional qualifying medical conditions.
Recreational Marijuana Use is Illegal in New Mexico
The Lynn and Erin Compassionate Use Act provides a very limited scope of legal medical marijuana use. Marijuana use and possession is still illegal under federal law and in most circumstances in the state of New Mexico. In fact, recreational use is criminalized and penalized even for small amounts of marijuana in most areas throughout the state. Penalties for possession of 1 ounce or less can include:
- Up to 15 days jail time
- Up to $100 fine
Decriminalization of marijuana possession has taken place in Albuquerque and Santa Fe, however, as recent municipal law in those areas provides that possession of one ounce or less of cannabis is no longer a criminal act but a civil infraction subject to a small fine.
Penalties increase from there based on the amount of drug possessed. Possession of 8 ounces or more of cannabis in New Mexico will mean felony charges and:
- Up to 1.5 years in jail
- Up tp $5,000 fine
New Mexico also provides criminal penalties for the distribution and cultivation of marijuana as well as paraphernalia possession.
Call a Knowledgeable Cannabis Attorney
The lawyers at Legal Solutions of New Mexico have valuable experience in the ever-changing marijuana legal field. Laws vary state-to-state and from state law to federal law. If you are interested in entering or continuing in the cannabusiness field and have questions about license application, staying compliant with current regulations, forming or improving a marijuana business, bylaws or operating agreements, or hemp/CBD, the lawyers at Legal Solutions of New Mexico can help guide you. Because of changes and the legal uncertainty in the field, it is important to consult with a qualified attorney to ensure proper documentation and compliance.