Possession of Marijuana in Indiana – Understanding the Laws

We have already addressed the Indiana Drug laws in a prior article, Indiana Drug Laws, Penalties, and Defenses.  However, in this article, we will specifically examine Indiana’s marijuana laws to better understand the regulations and potential penalties one might face if charged with possession of marijuana in Indiana.

In this article, we are going to try to answer some of the following frequently-asked questions:

  1. Is Possession of Marijuana in Indiana Legal?
  2. Is Possession of Marijuana in Indianapolis or Marion County Legal?
  3. Is Possession of Medicinal Marijuana Legal in Indiana?
  4. Can Indiana Residents Possess Marijuana Purchased Legally in Another State?
  5. Can Non-Residents Possess Marijuana Purchased Legally in Another State?
  6. What are the Potential Penalties for Possession of Marijuana Charges in Indiana?
  7. Can Possession of Marijuana Charges or Convictions be Expunged in Indiana?
  8. Can I Possess Marijuana Paraphernalia in Indiana?
  9. What are Some Potential Defenses to Possession of Marijuana Charges in Indiana?

While this article aims to provide informative and educational insights, it should not be considered a substitute for legal advice from a qualified attorney.  If you or a loved one is facing marijuana-related charges in Indiana, consult an experienced Indiana criminal defense attorney.

Is Possession of Marijuana in Indiana Legal?

As of January 1, 2024, marijuana remains illegal in Indiana for recreational use.  Indiana has yet to decriminalize or legalize the recreational use of cannabis, making Indiana one of the stricter states in terms of marijuana laws.  While some legislation has been proposed to change some of Indiana’s marijuana laws, recreational marijuana use remains prohibited in the state of Indiana.   Therefore, possession of marijuana in Indiana is illegal, regardless of the amount of marijuana possessed.  Let’s briefly talk about some related questions.

Is Possession of Marijuana in Indianapolis or Marion County Legal?

One additional note about the possession or marijuana laws in Indiana is that Marion County, where Indianapolis is located, decided to stop filing criminal charges for simple possession of marijuana.  In 2019, when Ryan Mears began serving as the Marion County Prosecutor, the Marion County Prosecutor’s Office enacted a policy that it would not file formal criminal charges for possession of marijuana if a defendant was in possession of less than one ounce of marijuana.

Please note, this policy does NOT change the law on possession of marijuana in Indiana.  This is just a decision by an executive office – the Marion County Prosecutor’s Office – on how it wants to allocate its resources.

This policy also does NOT prevent you from being arrested by local law enforcement in Marion County for possessing any amount of marijuana, regardless of whether the amount possessed is more or less than the one (1) ounce weight limit set by the policy.  It just means that the Marion County Prosecutor’s Office may not file formal charges against you after the arrest.  This policy also does not extend to cases with charges other than just simple possession of marijuana, such as if you are involved in an accident and are under the influence or in possession of marijuana or dealing in marijuana.

Finally, please note that this informal policy of the Marion County Prosecutor’s Office could change at any time – perhaps with the same elected prosecutor, or if a new prosecutor is elected in Marion County, or if an Indiana Court decides this policy is illegal.  This policy is still in effect as of the writing of this article and an Indy Star article about the policy can be found here.

Is Possession of Medicinal Marijuana Legal in Indiana?

Currently, Indiana does not have a medical marijuana program.  Therefore, possession of marijuana in Indiana, even if for medicinal purposes rather than recreational purposes, is still illegal.  This is true even if the marijuana was purchased in another state with medicinal marijuana laws.

However, Indiana has allowed the use of CBD oil with less than 0.3% THC to be used after the 2018 Farm Bill was passed.  This also includes similar cannabis substances such as Delta 8 so long as the product is under a 0.3% THC threshold. No prescription is required to purchase these substances; however, many retailers have imposed a minimum age limit of 21 to purchase products containing cannabis or to enter their storefront. It is important to note that these products still contain trace amounts of THC and can result in positive/failed drug tests or show up on other drug screens/reports if used.  This may cause a violation of probation if you are on probation or violate a private company’s drug use policy.

Can Indiana Residents Possess Marijuana Purchased Legally in Another State?

No.  First, it’s essential to clarify that Indiana laws do not criminalize the act of purchasing marijuana.  Instead, Indiana statutes specifically outlaw the possession of marijuana within the state and prohibit dealing in marijuana.   This means that even as an Indiana resident, purchasing marijuana in a state where it is legal does not constitute a criminal act. However, once you bring any amount of marijuana into Indiana, regardless of whether the marijuana was legally purchased elsewhere, it becomes illegal to possess it in Indiana.

Can Non- Residents Possess Marijuana Purchased Legally in Another State?

No.  The law explained above applies equally to non-residents visiting Indiana or even traveling through Indiana, even if they live in states where marijuana possession is legal. I often counsel clients who, while travelling from states like Illinois or Michigan to their home states, are apprehended while travelling through Indiana and face charges for marijuana possession.

These penalties can also be enhanced if you attempt to repackage the marijuana into another package or container that misrepresents the amount of THC in the marijuana or distribute repackaged marijuana.

What are the Penalties for Possession of Marijuana in Indiana?

The severity of the penalty for possession in Indiana largely depends on the quantity. Possession of a small amount of marijuana can be considered a misdemeanor in Indiana. Under Indiana Code § 35-48-4-11, Possession of marijuana, hash oil, hashish, salvia, or a synthetic drug carries penalties ranging from a Class B Misdemeanor to a Level 6 Felony. Below is a breakdown of how the punishments under this statute can be determined.

35-48-4-11. Possession of marijuana, hash oil, hashish, salvia, or a synthetic drug

(a) A person who:

(1) knowingly or intentionally possesses (pure or adulterated) marijuana, hash oil, hashish, or salvia;

(2) knowingly or intentionally grows or cultivates marijuana; or

(3) knowing that marijuana is growing on the person’s premises, fails to destroy the marijuana plants;

commits possession of marijuana, hash oil, hashish, or salvia, a Class B misdemeanor, except as provided in subsections (b) through (c).

(b) The offense described in subsection (a) is a Class A misdemeanor if:

(1) the person has a prior conviction for a drug offense; or

(2) the:

(A) marijuana, hash oil, hashish, or salvia is packaged in a manner that appears to be low THC hemp extract; and

(B) person knew or reasonably should have known that the product was marijuana, hash oil, hashish, or salvia.

(c) The offense described in subsection (a) is a Level 6 felony if:

(1) the person has a prior conviction for a drug offense; and

(2) the person possesses:

(A) at least thirty (30) grams of marijuana; or

(B) at least five (5) grams of hash oil, hashish, or salvia.

In short, if you possess 30 grams or less of marijuana, you can potentially face either a Class A or Class B Misdemeanor dependent on prior criminal history and on the type of packaging in which the marijuana was contained.

However, if you possess an amount of marijuana greater than 30 grams then you can face a Level 6 Felony charge.

What are Possible Sentences for Possession of Marijuana?

Please note that the chart below is not exhaustive of all possible penalties that can be imposed for possession of marijuana. This chart is only meant to demonstrate the general Indiana sentencing guidelines and fees associated with misdemeanors and felonies. An experienced Indiana criminal defense lawyer may be able to negotiate a plea deal with sentencing that differs from the chart below.

If you’d like learn more about the penalties, fines, and other general information about Class C Misdemeanors, Class B Misdemeanors, Class A Misdemeanors, Level 6 Felonies, or Level 5 Felonies, we highly encourage you to visit one of the linked articles and contact an experienced Indiana criminal defense attorney today.

CLASS SENTENCE RANGE POTENTIAL FINE
LEVEL 6 FELONY 6 MONTHS – 2 ½ YEARS $0.00 – $10,000.00
CLASS A MISDEMEANOR 0 DAYS – 1 YEAR $0.00 – $5,000.00
CLASS B MISDEMEANOR 0 DAYS – 180 DAYS $0.00 – $1,000.00

 Can Possession of Marijuana Charges or Convictions be Expunged in Indiana?

Yes.  Under Indiana’s expungement law, individuals may be eligible to expunge certain marijuana convictions, depending on factors like time passed since the offense, the seriousness of the crime, and the individual’s overall criminal record. Consulting with a knowledgeable and experienced Indiana expungement lawyer is key to understanding if you are or will soon be eligible for an expungement.  We have written articles covering expungement in the past covering topics such as reasons to expunge your record and frequently asked questions about expunging your record.

Indiana Expungement Lawyer

Want To Know If You Qualify For An Expungement in Indiana?  Click to begin a Free Expungement Evaluation and Avnet Law will email you to let you know if you are eligible.

In some states, convictions are automatically removed from a person’s criminal record after a specific number of years. However, in Indiana, once charged with or convicted of any misdemeanor or felony, it will always remain on your criminal record. The only way to remove a criminal charge, Misdemeanor conviction or Level 6 Felony conviction in Indiana from your record is to have it expunged. We have written an article answering many questions about the Indiana Expungement Law.

For an eligible Possession of Marijuana charge that was dismissed or where you found not guilty, you are generally eligible to apply for expungement one (1) year after the date of arrest or charge (whichever is later), provided you meet certain criteria. Some of these criteria include:

  1. You must not have any pending criminal charges;
  2. You must have paid all fines, fees, and restitution, if any;
  3. It must be one year from the date of the arrest or charge (whichever is later);
  4. You cannot still be on the diversion program (a diversion must be completed first).

For an eligible Misdemeanor Possession of Marijuana conviction, you are generally eligible to apply for expungement eight (5) years after the date of conviction, provided you meet certain criteria. Some of these criteria include:

  1. You must not have any pending criminal charges;
  2. You must have paid all fines, fees, and restitution, if any;
  3. It must be five years from the date of your conviction;
  4. You must not have committed any other crime, even a misdemeanor, in the five years prior to filing for expungement.

For an eligible Level 6 Felony Possession of Marijuana conviction, you are generally eligible to apply for expungement eight (8) years after the date of conviction, provided you meet certain criteria. Some of these criteria include:

  1. You must not have any pending criminal charges;
  2. You must have paid all fines, fees, and restitution, if any;
  3. It must be eight years from the date of your conviction;
  4. You must not have committed any other crime, even a misdemeanor, in the eight years prior to filing for expungement.

The fourth requirement often confuses people.  So here is an example to help explain:

A Defendant is convicted of a Level 6 Felony on January 1, 2015.  The Defendant will become eligible to expunge that conviction on January 1, 2023.  However, if the Defendant is convicted of a any other crime anywhere (crime, not infraction like a speeding ticket), say for example Class B Misdemeanor Public Intoxication on September 20, 2021, then the Defendant is not eligible for expungement until September 20, 2029.  Basically, any new conviction, misdemeanor or otherwise, resets the 8-year waiting period.

Expungement is not automatic, and you will need to petition the court to have your record expunged.  It’s advisable to consult with an experienced Indiana Expungement Lawyer.

Can I Possess Marijuana Paraphernalia in Indiana?

Possession of marijuana paraphernalia is illegal in Indiana. This includes items used for cultivating, distributing, or consuming cannabis. Penalties can include both fines and jail time and are described in more detail below.

35-48-4-8.3. Possession of paraphernalia

(a) This section does not apply to rolling paper.

(b)  A person who knowingly or intentionally possesses an instrument, a device, or another object that the person intends to use for:

(1)  introducing into the person’s body a controlled substance;

(2)  testing the strength, effectiveness, or purity of a controlled substance; or

(3)  enhancing the effect of a controlled substance;

commits a Class C misdemeanor. However, the offense is a Class A misdemeanor if the person has a prior unrelated judgment or conviction under this section.

This means that other than rolling papers, it is a Class A or Class C Misdemeanor in Indiana to possess any other paraphernalia in Indiana that is intended to be used to enhance, test, or introduce marijuana into the person’s body. An important distinction is that it is not a crime to possess the paraphernalia by itself, but it becomes a crime when someone intends to use the paraphernalia for a reason described above.

What are Some Potential Defenses to Possession of Marijuana Charges in Indiana?

We recommend that you consult with an experienced Indiana criminal defense attorney to discuss any potential defenses that may be applicable to any particular case.  However, in general, several defenses may be applicable to a possession of marijuana charge in Indiana, depending on the situation, including:

  1. Illegal search and seizure: If law enforcement located the marijuana evidence through an unlawful search or seizure, it might be possible to challenge the admissibility of that evidence in court.
  2. Unlawful Stop or Arrest: Similar to an illegal search and seizure, if law enforcement officers did not have a valid reason to stop or arrest you, any evidence collected as a result of the stop or arrest may be challenged and excluded.
  3. Medical necessity: While Indiana doesn’t have a comprehensive medical marijuana program, if someone can prove that marijuana use was the only viable medical option, it might be a potential defense.
  4. Lack of Knowledge or Control: If you were unaware of the presence of marijuana or didn’t have control over it (such as in a shared space like the backseat of a car), you may be able to argue that you were not in possession of the marijuana.
  5. Constructive Possession Dispute: Related to the defense above, the concept of “constructive possession” means you were aware of the marijuana’s presence and/or had the ability to exercise control over it. If there’s doubt about your knowledge or control, it might affect the case.
  6. Chain of Custody Issues: The prosecution needs to establish a clear chain of custody for the seized evidence. If there are gaps or inconsistencies in the chain of custody, it could weaken the prosecution’s case.
  7. Lab analysis: The substance in question might not be marijuana. A lab analysis can confirm its composition. Additionally, if the lab made an error in testing the substance or handling the substance it could weaken the prosecution’s case.
  8. Entrapment: If you were induced or coerced into committing a crime you wouldn’t have otherwise committed, you might be able to argue entrapment.
  9. The Drugs were Planted: If you feel the drugs were planted by an officer or another individual you may be able to use resources such as dash cameras, body cameras, and witness statements to help validate your defense and weaken the case against you.
  10. Constitutional Issues: Depending on the circumstances of your case, there might be constitutional issues related to due process, equal protection, or other rights that could be raised in your defense.

Remember, each case is unique, and the viability of these defenses will depend on the specific facts and details of the situation. It’s essential to consult with an experienced Indiana criminal defense attorney who has experience in Indiana law to understand the best strategies for your case.

Closing Thoughts

In conclusion, while attitudes toward marijuana are shifting nationwide towards legalization, Indiana remains stringent regarding its marijuana laws. It’s essential to be informed and to consult an experienced Indiana criminal defense attorney if faced with marijuana-related charges in the state. If you are a loved one are facing criminal marijuana related charges, contact Avnet Law today.

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