Although drug use is common across the US, laws might classify drugs differently and carry harsher or more lenient penalties depending on the state. Massachusetts law includes stricter penalties for heroin possession and minor penalties for possession of small amounts of marijuana.
The possession of drugs is illegal in Massachusetts unless they are obtained by prescription. The Controlled Substances Act (Mass. General Laws chapter 94C) classifies drugs according to their perceived potential for abuse, risk to public health, and scientific or medical utility.
For example, strong opiates like heroin and some prescription painkillers are listed as Class A drugs, meaning they have the most potential for harm and abuse. This category also includes GHB and Ketamine. Class B covers weaker opiates, cocaine, and methamphetamine, among other drugs.
Classes C, D, and E include prescription drugs like valium, as well as illicit substances like marijuana and psilocybin, the active chemical in hallucinogenic mushrooms. Possession of one ounce or less of marijuana has been decriminalized in Massachusetts – it carries only a $100 fine and forfeiture of the drug.
A first offense for simple possession of any drug is technically a misdemeanor in Massachusetts, but can still lead to serious consequences. Possession of any controlled substance in Classes A through D, except heroin and marijuana, carries a jail term of up to one year and can result in a 1-year driver’s license suspension. Subsequent violations can land offenders in jail for up to two years.
The commonwealth has enacted strict laws controlling heroin. A first-time violation for possession of the drug can land someone in jail for two years and cost the defendant $2,000. Subsequent offenses for heroin possession carry from 2 ½ to 5 years in prison.
Strict control of heroin and other powerful opiates is not without reason. Abuse of prescription drugs has been an increasing and significant problem in Massachusetts, according to State Police. Opiate overdose leads to more accidental deaths in Massachusetts than any other cause.
In a move to combat the illegal use of painkillers, Massachusetts public health officials recently gave local and state police, as well as federal authorities, greater access to a database that monitors painkiller prescriptions. The Prescription Drug Monitoring Program tracks prescriptions of controlled substances by requiring doctors and pharmacists to report each prescription they dispense.
Greater access to this system could enable law enforcement to spot missing prescriptions or people who are being overprescribed. This information could help police suppress the supply of these drugs to the black market, but some people are concerned that the expansion of access could invade the privacy of people who need these drugs and take them lawfully.
If someone has a relatively large quantity of drugs, however, drug possession can carry much more serious penalties. Under drug trafficking laws, someone who has 14-28 grams of heroin could receive 7-20 years in jail, and possessing 200 or more grams of cocaine or heroin carries 15-20 years imprisonment.
Pretrial Diversion and Sealing Records
If drug possession is the defendant’s first offense, he has no prior convictions in Massachusetts or any other state, and he is between 17 and 21-years-old, a court may recommend a pretrial diversion program that includes educational services and community involvement. If the offender enters the program, he would avoid criminal penalties.
Charges for first-time drug possession can also be sealed. If the offender has no previous convictions, and his case has been “continued without a finding” or he was convicted and placed on probation, the individual may ask the court to seal his record when the probationary period ends.
Possessing, Buying, and Selling Alcohol
Massachusetts has a broad set of laws to prevent underage drinking, a popular activity among high school and college students across the country.
In Massachusetts, it is illegal for any person under 21 to possess alcohol, unless the person is with a parent or legal guardian. Thus, a 19-year-old would not violate this law if he were having a glass of wine or beer with his family in their home, but drinking at a bar or party away from his parents would violate the law. An exemption permits 18- to 21-year-olds to carry alcoholic beverages if it is part of their employment.
Violation of the law carries a $50 fine for the first offense and a 90-day suspension of the offender’s driver’s license. In addition to this transportation inconvenience, the conviction could hurt someone’s chances for employment for years.
Of course, individuals under 21 may not buy or attempt to buy alcoholic beverages. The law also forbids altering IDs to buy alcohol or claiming to be 21 or older when someone is actually underage. Further, an underage person may not ask a 21-year-old to buy alcohol. A violation of any of these requirements can result in a $300 fine and a180-day driver’s license suspension.
Similarly, no one may make, possess, or sell false IDs, or use another’s ID, to buy alcoholic beverages.
Massachusetts law also specifically prohibits anyone from selling or providing alcoholic beverages to anyone under 21, regardless of whether the buyer intends to give the alcohol to someone over 21. To comply with this law, owners of restaurants, bars, and private residences must be especially wary of who is drinking on their property. Underage students who throw a party and provide alcohol to other minors may also be charged with violating the law. Punishment for violating this law is strict – the offender can be fined up to $2,000 or face up to one year in prison.
Social Host Liability
Allowing minors to drink on your premises could have significant financial consequences as well. Under a theory called social host liability, if someone provides alcohol to another person to the extent that the person becomes drunk, and then the intoxicated person injures someone, the injured person can sue the individual who provided the alcohol in addition to the person who injured him.
For example, if someone hosts a party, and allows a guest to become clearly drunk, and then the drunken person severely injures someone in a car wreck, the injured person can sue that host. Usually in these cases, the cause of injury is drunk driving. It doesn’t matter whether the guest is under 21 or not – if he or she injures someone as a result of being provided too much alcohol, the host might have to pay a large sum in a lawsuit.
And minors -- not only adults -- may be sued under this law. To avoid these potentially harsh consequences, it is crucial to know who your guests are and monitor their drinking to some extent.
Driving while Intoxicated
Minors are also held to a stricter standard when they are driving. If a minor is driving a car with only a 0.02 blood alcohol content, his or her driver’s license can be suspended. By contrast, people who are 21 and older can drive with a blood alcohol content below 0.08 before they face any legal consequences. Regardless of a driver’s age, if he is arrested for driving with a blood alcohol content of 0.08 or greater, he faces up to two years in jail and up to $5,000 in fines.
Marijuana related laws are an area of increasing concern throughout the US. A significant move towards decriminalization is becoming more common; currently marijuana has been decriminalized in at least 10 states, including Alaska, California, Massachusetts, Nevada, Oregon, New Hampshire, Rhode Island, and Michigan. Medical marijuana use is becoming more prevalent, and has been legalized in at least 17 states. Outright legalization has happened in two states, Colorado and Washington, through ballot initiatives.
It is more important than ever that the public be well-informed about the state of the laws related to marijuana use, possession and distribution. Massachusetts has not legalized marijuana, but there has been a fundamental shift towards decriminalization, and away from prosecution especially for casual users of the drug.
Marijuana Possession: The Move to Decriminalization
While marijuana possession is legal in some states, it remains illegal in Massachusetts. There is no acceptable amount of marijuana that a person may legally have in his or her possession. All amounts of marijuana are illegal. The level of awareness required for a conviction of a marijuana related offense is to “knowingly or intentionally” possess marijuana, under the statute. It is good to keep in mind, though, that it is probably difficult to persuade police that possession is accidental or unintentional, in most cases. (Mass. Gen. Laws Ch. 90 § 24.)
As of 2008, though, through a ballot initiative called the Massachusetts Sensible Marijuana Policy Initiative, ballot question 2, the public voted in favor of decriminalization. Previously, marijuana possession had been punishable by up to 6 months in jail and $100 fine. The ballot measure also ended the practice of collecting personal information about those found with marijuana in their possession, in reports known as Criminal Offender Record Information (CORI) reports.
Possession of a small amount, up to one ounce of marijuana in their possession, is considered a violation. This is a civil offense, not a criminal offense, with a flat fine of $100. As a civil offense, it does not affect one’s criminal record as much as a criminal offense, but it should still not be taken lightly. Possession of more than one ounce of marijuana, changes the violation to a misdemeanor, a criminal offense. The penalty is a fine, $500, and possible jail term of up to six months. A first offense automatically results in probation rather than jail time. (Mass. Gen. Laws Ch. 90 § 24.)
Possession Distinguished from Sales of Small Amounts of Marijuana
It is important to note that the court in Massachusetts ruled just this year not to decriminalize even the smallest sales of marijuana. Those offenses remain criminal offenses. The court held that “the sale of any amount of marijuana remains a criminal offense under G.L. c. 94C, § 32L… and] is not limited solely to situations where the "distribut[ion]" involves a sale.” Commonwealth v Keefner, 461 Mass. 507 (2012)
Distribution, Trafficking, and Possessing and selling Drug Paraphernalia
All of the activities that constitute distribution, trafficking, and possessing and selling drug paraphernalia are considered serious crimes and are felonies, punishable by a year or more in prison.. Paraphernalia includes items used in growing, harvesting, processing, selling, storing, or using marijuana. As with other drug offenses, penalties generally increase if the illegal activity was directed at or included minors. (Mass. Gen. Laws Ann. § 32E.)
Massachusetts Drugged Driving
In Massachusetts, driving under the influence includes that of marijuana, narcotic drugs, depressants or stimulant substances. Mass. Gen. Laws Ann. ch. 90 § 24(1)(a)(1)
Massachusetts has an implied consent law that requires drivers to submit to automatic drug testing at the request of law enforcement, in exchange for driving on Massachusetts roads. (Mass. Gen. Laws Ch. 90 § 24 (f))
Refusal to submit to a drug test results in automatic license suspension for a minimum of 180 days, with increasing time periods for younger offenders, and also for repeat offenders.
Drugged driving can result in house arrest, significant fines, and having one’s license suspended for a year. Second offenses have an automatic lock up period of at least 30 days, license suspension for 2 year, and significant fines. A third offense is automatically a felony, even though the minimum penalty is 180 days in jail, with increasing penalties, fines, and jail terms for subsequent offenses.
Sobriety checkpoints have been upheld under state and federal law in Massachusetts. State law does not require a showing of probable cause to stop someone at a sobriety checkpoint. Commonwealth v. Shields, 521 N.E.2d 987 (Mass. 1988) Out of concern that allowing narcotics searches would lead to generalized searches by the police, similar random checkpoints have not been upheld for attempts to seize narcotics. The “exception for operating while under the influence roadblock to reasonable suspicion requirements is very narrow. Because of the limited scope of those decisions, we rejected the “argument that the result we reach[ed] opens the door for suspicionless searches and seizures in other contexts…” Com. v. Rodriguez, 722 N.E.2d 429 (2000)
Medical Use of Marijuana
The people of Massachusetts voted in favor of the use of medical marijuana in the last election, uses as prescribed by a physician, for a variety of medical conditions, as described in the ballot petition. The ballot language was as follows: “A YES VOTE would enact the proposed law eliminating state criminal and civil penalties related to the medical use of marijuana, allowing patients meeting certain conditions to obtain marijuana produced and distributed by new state-regulated centers or, in specific hardship cases, to grow marijuana for their own use.” Medical Marijuana Ballot Question
To implement the law, registration cards will be issued to those with their physician’s approval. Getting a registration card involves an application process that includes proper identification and authorization from a physician. Persons with the described conditions who are issued the registration cards will be able to get medication from medical marijuana treatment centers, or dispensaries. To discourage fraudulent use of the cards, such use will constitute a misdemeanor. If the use is for trafficking in marijuana or nonmedical use for profit, the charge is changed to a felony and the person can get up to 5 years in prison.
While Massachusetts has made a significant shift towards decriminalization of small amounts of marijuana, there are significant penalties for certain uses, and for having or trafficking in significant amounts of the drug. Drugged driving and violation of the new medical marijuana laws also will yield a significant penalties and costs, including jail time and large fines.
In Massachusetts, the possession of less than an ounce of marijuana has been decriminalized. The Supreme Judicial Court has ruled that the sale of marijuana or possession with intent to distribute less than an ounce of marijuana is still illegal. Therefore, the police and the district attorney can arrest and prosecute a person for having less than an ounce of marijuana if they believe the person was trying to distribute the marijuana. (picture taken by Deegan Marie)
The question that the SJC has yet to rule on is what constitutes possession with intent to distribute. In the most recent SJC opinion regarding marijuana the justices wrote that it is still an open question in determining what should be regarded as distribution.
At first look most people would say why is it such a big deal to try to define the term distribution when it comes to marijuana. Well when it comes to distributing less than an ounce of marijuana there are a lot of scenarios that it may or may not cover. Most people would agree that if a defendant got money in exchange for giving someone an ounce of marijuana it should be considered possession with intent to distribute. There are a lot of less clear cut scenarios that the SJC still needs to rule on.
Take this scenario as an example. 4 people are hanging out at the park together. All four people are passing a marijuana cigarette and all taking turns smoking the marijuana. The marijuana cigarette holds less than an ounce of marijuana. The police come up to them at the park. Could the police arrest each of the 4 people with possession with intent to distribute marijuana? Even though most people would consider this straight possession and not distribution the law has not defined this scenario. In fact the SJC stated that this situation has yet to be defined as possession or possession with intent to distribute marijuana.
In the scenario where 4 people are smoking marijuana, technically one could say that the each of the 4 people is distributing marijuana to the other. However, hopefully the SJC will see the flaw in this argument as each person is really possessing the marijuana for personal use and not for sale. It will be only a matter of time before the courts need to define the scenario of multiple defendants enjoying marijuana together.
Boston Globe Article of SJC Ruling on Selling Marijuana