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Can I be charged with possession with the intent to distribute less than an ounce of marijuana?

One common question asked by many charged with a drug crime in Massachusetts is can I be charged with possession of marijuana with the intent to distribute if I had less than an ounce of marijuana. Many believe that because marijuana possession of less than an ounce was decriminalized with the passage of Massachusetts General Law Chapter 94C Section 32L that the possession with the intent to distribute penalties no longer apply.

The Massachusetts Supreme Judicial Court recently asked this question under Massachusetts drug crime laws. The Court held in a case known as Commonwealth v. Keefner, 461 Mass. 507 (2012), that a possession with an intent to distribute charge can still stand even if less than an ounce and that the passage of the decriminalization of marijuana statute, 32L did not signify that the statute regarding possession with the intent to distribute was also repealed.

  • The recent case of Keefner allows a prosecutor to charge possession with the intent to distribute marijuana even if you had less than an ounce of marijuana.

Defending a charge marijuana drug distribution charge involving less than an ounce of marijuana:

Though the charge can still proceed, a drug distribution charge of less than an ounce may be difficult for the Commonwealth to prove for three reasons.

  • The amount of marijuana possessed is relative to prove an individuals intent, when only small amounts are present the Commonwealth will have to rely on other factors to establish an intent to distribute.
  • A judge may look less favorably on the charge as some officers charge possession with the intent to distribute in order to circumvent the statute decriminalizing marijuana possession.
  • There may be other legal defenses, such as proving lack of possession, Constitutional defense or challenging the testing of the drugs that can result in a dismissal or not guilty verdict at trial.

While you can be charge with possession with the intent to distribute marijuana even if you have a small quantity, it will be a much more difficult case for the Commonwealth. With any illegal drug distribution charge, a charge of possession with the intent does not depend on the quantity, but when the quantity is small the Commonwealth may not survive a motion to dismiss or even a motion for required finding at trial. If you have any questions on the charge of possession with the intent to distribute, feel free to contact me at 781-686-5924.