The statements and opinions expressed below represent the best judgment of the Executive Office of Public Safety and Security ("EOPSS") at the current time. Not all of the issues, however, are clear cut. The materials below do not carry the force of law and should not be taken as legal advice. It is strongly recommended that affected individuals or organizations consult with legal counsel before taking action in response to Question 2.
QUESTION 2 GENERALLY:
When did Question 2 go into effect?
On November 4, 2008, the voters passed Ballot Question 2, "An Act Establishing a Sensible State of Marijuana Policy." In accordance with state constitutional procedure, the Secretary of State presented the official results of the vote to the Governor and the Governor's Council for certification on December 3, 2008. The new law went into effect on January 2, 2009, 30 days after certification.
Is possession of an ounce or less of marijuana now legal?
No. Possession of an ounce or less of marijuana is now a civil infraction, rather than a criminal offense. Question 2 amended chapter 94C of the General Laws by adding three new sections, 32L through 32N, and amending language of section 34 of chapter 94C to conform to the new law. The new Section 32L changes the possession of an ounce or less of marijuana or THC from a criminal offense to a civil offense, making it punishable by civil penalties and forfeiture of the contraband. For an adult the offense is punishable by a $100 civil penalty and forfeiture of the contraband. An offender under the age of 18 is subject to the $100 civil penalty and forfeiture of the contraband, and is also required to complete a drug awareness program within one year of the offense, with enhanced penalties for failure to comply.
Does the penalty increase for subsequent violations?
No. Each violation of Section 32L is punishable by the $100 civil penalty.
QUESTION 2 CITATION PROCESS:
Who is responsible for enforcing the new law?
The police department of each political subdivision is responsible for the enforcement of the new law through a citation process consistent with the non-criminal disposition provisions of G.L. c. 40, § 21D, as modified by Question 2. The section 21D procedure is used in many cities and towns for violations of by-laws or ordinances, including building and health code violations.
Can state, transit, and public college and university campus police issue citations for Section 32L violations?
Yes. Nothing in Question 2 prevents police officers who possess civil enforcement powers from issuing citations for Section 32L violations, but they will have to follow the G.L. c. 40, § 21D, procedures, and all proceeds will go to the municipality where the offense occurred.
How does the section 21D citation process work?
A law enforcement officer with civil enforcement powers may issue a citation to the violator at the time and place of the violation, or if that is not possible, the officer may, within 15 days, mail or deliver the citation to the offender's last known address.
The citation form gives the offender the choice to pay the $100 penalty or request a hearing within 21 days. Payments are made to the town clerk's office, but hearing requests go to the local District Court or the Boston Municipal Court (BMC), which will set a date for the offender to appear. Close coordination among the police department, the town clerk, and the court is essential.
To see the text of Massachusetts General Laws chapter 40, section 21D, go to http://www.mass.gov/legis/laws/mgl/40-21d.htm.
For a model citation form, click here .
To see a directory of city and town offices, where payments may be directed, go to http://www.sec.state.ma.us/ele/eleclk/clkidx.htm.
For a list of the addresses of the District Courts and the BMC, where requests for hearings should be directed, click here .
In 1991, the former Executive Office of Communities and Development prepared " A Guide for Using Non-Criminal Disposition for By-Law Enforcement file size 2MB ", explaining the section 21D civil enforcement process. While some of the information contained therein may be out of date, it may provide a useful resource to cities and towns and their police departments.
Is a city or town required to formally "adopt" G.L. c. 40, § 21D, to enforce Section 32L violations?
No. Question 2 itself requires police departments to enforce Section 32L "in a manner consistent with the non-criminal disposition provision of Section 21D of Chapter 40." In shorthand terms, Question 2 "adopted" section 21D on a statewide basis for use in citing and processing Section 32L violations.
Where does the money received from the civil penalty go?
The money received goes to the city or town where the offense occurred, regardless of the department that issued the citation.
Where can I get a section 21D citation book?
Many cities and towns already issue section 21D citation books to designated "enforcing officials," such as police officers or building inspectors. They can be purchased from the same printers who distribute other citation books.
Does the police officer who issued the original citation have to appear in court if the violator requests a hearing?
Neither Question 2 nor section 21D requires the citing officer to be present at the District Court or BMC hearing to prove the Section 32L violation. These hearings are similar to first-level clerk-magistrate hearings currently held for civil motor vehicle infractions. Accordingly, a police prosecutor or court liaison should be permitted to appear and rely on the reports of other officers.
Of course, because Question 2 citation process will raise novel issues, each police department will need to establish its own policies and practices in conjunction with the local court. At a minimum, it is recommended that citing officers prepare detailed incident reports - especially concerning any evidence supporting the conclusion that the substance in question is marijuana - for presentation in the event the offender elects a hearing.
OFFENDERS UNDER 18:
How are offenders under age 18 treated?
An offender under the age of 18 is subject to the $100 civil penalty and forfeiture of the contraband, and is also required to complete a drug awareness program within one year of the offense.
If the offender fails to complete the program within one year of the offense, the District Court or BMC may increase the civil penalty to as much as $1,000, for which the offender and his or her parents are jointly liable. Under Question 2, the offender or his/her parent or legal guardian is responsible for demonstrating to the court that the offender has completed a drug awareness program and community service, by filing a certificate of completion of the program with the court. If a certificate is not timely filed, the court is to notify the offender and the parent or guardian of a hearing to show cause why the civil penalty should not be increased to $1,000. Lack of ability to pay, and unavailability of a program, are recognized defenses.
The proceedings discussed above take place in the District Court or BMC, not in Juvenile Court. If an offender who was under the age of 17 at the time of the Section 32L violation fails to complete the drug awareness program, however, he or she may be referred to Juvenile Court for delinquency proceedings.
Are District Court or BMC hearings that involve alleged juvenile violators public?
Yes. Question 2 directs these hearings to the District Court or the BMC, where hearings are public, unlike Juvenile Court.
How are offenders under age 18 and their parents/guardians notified about Section 32L violations?
In addition to issuing a citation to the offender under the age of 18, the citing officer must send a second copy of the notice to the parent or legal guardian at their last known address. Because section 21D permits the issuance of citations within 15 days of the offense, it is recommended that enforcing officers or their departments mail a second notice of the violation to the offender's parent(s) or legal guardian from the police station, as soon as possible after issuing the citation to the offender in person. The notice should include information about the offender's additional obligations concerning the drug awareness program. For a model notice form for offenders under 18 and their parents/guardians, click here .
Where can I find information about the drug awareness programs?
The Institute for Health and Recovery (IHR), a statewide non-profit organization, has developed the Youth Drug Awareness Program to comply with the requirements of Question 2. Classroom instruction sessions are scheduled periodically based on demand. Any offender under age 18 who receives a citation must register for the class by calling IHR at 617-661-3991 or 866-705-2807 and asking for a "Question 2 project specialist." The offender must provide a current address and telephone number. IHR will then contact the youth when there is space available in a class.
LAW ENFORCEMENT LEGAL ISSUES:
How does Question 2 define possession of marijuana?
The new law expands the definition of possession. Section 32L states that possession of an ounce or less of marijuana or THC includes the traditional understanding of "possession," but also includes having metabolized products of marijuana or THC in one's bloodstream.
Does Question 2 apply only to marijuana?
Because the new definition specifically includes possession of an ounce or less of THC, the primary psychoactive ingredient in marijuana, some Class C substances, such as hashish or hash oil, may also be subject to Section 32L.
Can a driver suspected of being under the influence of marijuana or THC be charged with operating under the influence pursuant to G.L. c. 90, § 24?
Yes. Nothing has changed relative to operating under the influence laws. Question 2 did not repeal or modify existing laws, ordinances, or by-laws concerning the operation of motor vehicles while under the influence.
Does Question 2 change the laws with regard to distribution of marijuana or possession with intent to distribute marijuana?
No, the law is unchanged in that respect. The law specifically leaves intact all laws concerning distributing, selling, manufacturing, or trafficking marijuana, possessing more than an ounce of marijuana, and unlawful possession of prescription forms of marijuana such as Marinol.
What if a suspect possesses an ounce or less but is suspected of distributing the ounce or a portion of it? What if the suspect is in possession an ounce or less and in the police officer's opinion it is packaged or intended for distribution?
The law is unchanged. If there is probable cause to believe the suspect was engaged in distribution or possession with intent to distribute, then police may charge him/her accordingly.
Is public use of marijuana illegal?
Question 2 permits the cities and towns to pass ordinances or by-laws prohibiting public use of marijuana or THC and to provide for additional penalties for public use.
EOPSS recommends that municipalities enact such by-laws or ordinances and provide police with the option of treating public use as a misdemeanor offense.
The Office of the Attorney General has prepared a model public use by-law, which is available here .
Will someone who possesses an ounce or less of marijuana lose his/her driver's license?
No. The law specifies that no action may be taken against a violator's license for mere possession of an ounce or less of marijuana in violation of Section 32L.
May police stop and detain suspects for Section 32L violations?
In general, if police have reasonable suspicion that a suspect possesses marijuana or THC, which remain controlled substances under chapter 94C of the General Laws, they may conduct a threshold stop to investigate. Once an individual or automobile is stopped based on reasonable suspicion, police should proceed as usual with observation and questioning. As before, a protective search is justified where there are reasonable grounds to believe the individual is armed and dangerous.
May police conduct a warrant management search of the suspect during the inquiry?
Yes. The rule remains unchanged; a stop may last only as long as it takes to effectuate the purpose of the stop, and the investigation should relate to the circumstances of the stop. The stop should not be disproportionately long relative to its purpose. Police may extend the investigative stop to other criminal activity if there is reasonable suspicion of other criminal activity. However, the mere odor of burnt marijuana cannot reasonably provide suspicion of criminal activity.
When may police search for marijuana?
Prior to the passage of Question 2, courts held that the odor of marijuana alone provided probable cause to believe that criminal activity was underway. However, the SJC has recently held (in Commonwealth v. Cruz, decided April XX, 2011) that, because possession of one ounce or less of marijuana is no longer a crime, the odor alone no longer necessarily indicates criminal activity and, therefore, cannot justify a warrantless search. Marijuana is still unlawful to possess, but it is not criminal in amounts of an ounce or less. Thus, because the odor of marijuana alone does not provide probable cause to believe that a crime is being committed, a warrantless search is not justified. There must be additional articulable facts, beyond mere odor, to demonstrate a suspicion that a suspect possesses more than one ounce of marijuana or is committing another criminal offense. Only where exigent circumstances exist and police have probable cause based on the totality of the circumstances to believe there is evidence of a crime, police may conduct a search without a warrant. Keep in mind the principle of proportionality - without probable cause that a crime is being committed, "such an intrusive measure as a warrantless search" is not justified. As the SJC has emphasized, "it is unreasonable for police to spend time conducting warrantless searches for contraband when no specific facts suggest criminality."
May police search an individual for marijuana?
No, unless there are exigent circumstances and articulable facts to demonstrate a suspicion that the suspect is committing a crime, such as possession of more than one ounce of marijuana, possession with intent to distribute marijuana, or operating under the influence of marijuana. Police may not conduct a warrantless search of an individual based solely on possession of one ounce or less of marijuana.
May police search a motor vehicle for marijuana?
No, unless there are articulable facts to demonstrate probable cause that the occupants are committing a crime. Under the "automobile exception," a warrantless search of an automobile is permitted when police have probable cause to believe that a motor vehicle on a public way contains contraband or evidence of a crime, and exigent circumstances make obtaining a warrant impracticable. However, while marijuana is still considered contraband because it is unlawful to possess, there must be probable cause to believe that a criminal amount of contraband is present. Without probable cause to believe a crime is being committed, a warrantless search is not justified. The SJC (in Commonwealth v. Cruz) has specifically rejected the notion that the odor of marijuana creates probable cause to believe that an automobile contains a potentially criminal quantity of contraband. There must be additional articulable facts that a crime is being committed before a warrantless search is justified. The standard used to determine the validity of a warrantless search is the same as that used by a magistrate considering the application for a search warrant; and search warrants, as the SJC has emphasized, are for criminal cases, not civil infractions.
May police order the occupants out of a motor vehicle based on possession of marijuana?
No. The SJC has stated that "Without at least some other fact to bolster a reasonable suspicion of actual criminal activity, the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order." Following this reasoning, plain sight of less than one ounce of marijuana alone would not reasonably provide suspicion of criminal activity either, and thus cannot be the sole basis for an exit order.
Now that marijuana possession of an ounce or less is subject only to civil penalties, can police search based on a lesser standard than probable cause?
No. The standard for a search remains probable cause.
May police consider the smell of unburnt or of freshly burnt marijuana as a factor in determining probable cause?
Yes. The odor of marijuana is one factor that may be considered in determining probable cause. (Police must be able to demonstrate familiarity with the smell of marijuana, whether burnt or fresh.) However, the odor of marijuana alone no longer provides probable cause or reasonable suspicion to believe that a crime is being committed. There must be additional articulable facts to demonstrate a suspicion that a suspect possesses more than one ounce of marijuana or is committing another criminal offense. The SJC has further stated that "even if the odor is present in a so-called 'high crime' neighborhood," these two factors combined are still not sufficient create a reasonable suspicion of criminal activity.
May police conduct a search incident to an arrest for a Section 32L violation?
After Question 2 and Commonwealth v. Cruz, it is unlikely that police retain the authority to arrest without a warrant for mere possession of an ounce or less of marijuana. The SJC has said that "ferreting out decriminalized conduct with the same fervor associated with the pursuit of serious criminal conduct is neither desired by the public nor in accord with the plain language of the statute."
Because there is no power to arrest for a Section 32L violation, a search incident to arrest is impossible. If a search is justified, it should be conducted prior to arrest. Note, however, that arrests for possession of more than an ounce of marijuana and possession of less than an ounce with intent to distribute, remain criminal offenses subject to arrest without a warrant and to subsequent searches incident to those arrests.
How can police determine whether the amount is over or under one ounce, and whether to treat possession as a civil or criminal offense?
Individual officers will have to make an initial assessment based on training and experience. Probable cause is the standard. In many instances, the approximate weight will be clear. If police have probable cause to believe the suspect possesses more than an ounce, the suspect may be arrested. However, where police do not have probable cause to suspect possession of more than an ounce, and portable scales are not available, they have the option of taking the suspect's information and releasing him while also instructing him that he will receive something in the mail. When police return to the station, they may weigh the marijuana. If the weight is more than an ounce, the suspect may be summonsed to court on a criminal complaint. If the weight is an ounce or less, a citation may be mailed to the suspect within 15 days of the offense.
What will police do with seized marijuana?
Most police departments have a procedure for logging in the contraband and maintaining the chain of custody. If the seized marijuana will be evidence in a criminal case - because it appears to weigh more than an ounce, or because there is evidence of intent to distribute - it should be submitted to the relevant state crime lab as usual. If the contraband will be evidence solely of a Section 32L violation, it should not be sent to the crime lab, both because it may be needed as evidence at a clerk-magistrate hearing in a very short time frame, and also because the state crime labs analyze only evidence of crime.
If the marijuana is not going to be sent to the lab in Section 32L cases, how will police prove the substance is marijuana?
While the details remain to be worked out, and may vary from court to court and clerk-magistrate to clerk-magistrate, neither a laboratory analysis nor expert testimony should be necessary to prove, by the preponderance standard, that the substance is marijuana. A detailed police report including the circumstances in which the substance was seized, the violator's statements and the officers' training and experience, together with presentation of the evidence in court, should suffice. In addition, when a violator requests a hearing, some departments may choose to conduct a relatively inexpensive field test of the substance.
What if a suspect is in possession of marijuana or is clearly under the influence, and has a child with him/her?
If police reasonably believe there is a safety concern for the child, follow the current procedure and contact the Department of Children and Families (DCF) emergency hotline. Child safety concerns remain paramount.
Is a violation of Section 32L considered criminal offender record information (CORI)?
No. Question 2 specifies that violations shall not be recorded in the CORI system.
What is the process for charging a Section 32L violation when criminal charges are also involved?
While the criminal charges proceed as before, Question 2 does not provide for Section 32L violations to be handled through criminal complaints. Accordingly, they must proceed through the G.L. c. 40, § 21D, process on a separate track.
EOPSS has set forth below its best judgment concerning law enforcement-related employment issues arising out of Question 2. Because of the potential for differing interpretations, it is strongly recommended that police departments consult with legal counsel before taking employment action against an employee with respect to possession of an ounce or less of marijuana.
Will Question 2 affect the authority of police departments to discipline police officers for on-the-job possession of an ounce or less of marijuana?
In EOPSS's view, no. Most police departments have collectively bargained employment policies and procedures that prohibit use of controlled substances by officers on or off the job. The policies may provide for drug screen testing for both prospective and current employees. Actions may be taken where there is evidence of use of controlled substances. An applicant may be denied entrance to the police department. Employees may be subject to discipline progressively delivered and ranging from a written warning to termination. In some instances a police officer may be required to attend treatment for substance abuse. Nothing in Question 2 purported to alter the applicability or enforceability of such collective bargaining agreement provisions.
Even absent a collective bargaining agreement, nothing in Question 2 purports to alter the ability of a public employer to enforce workplace policies or to impose workplace disciplinary measures. Rather, Question 2's stated purpose is to decriminalize the possession of one ounce or less of marijuana and, in doing so, to preclude not only the criminal conviction and criminal record that previously resulted from the offense, but also the ancillary consequences that flowed from the conviction. Accordingly, Question 2's preclusion on the imposition of other forms of "penalty, sanction or disqualification" for possessing an ounce or less of marijuana is most appropriately read as intending to bar penalties of the type that would previously have resulted from a criminal conviction, not to prohibit workplace discipline that has historically been wholly separate and distinct from the criminal process.
Consistent with this interpretation, Question 2 itself states, "Nothing contained herein shall be construed to repeal or modify existing laws, ordinances or bylaws, regulations, personnel practices or policies concerning the operation of motor vehicles or other actions taken while under the influence of marihuana or [THC]" (emphasis added).
In any case, it is clear that police departments are responsible for maintaining public safety and order. Even the civilian employees of police departments, such as civilian dispatchers, are involved in the public safety mission. Public safety agencies must take action to protect both public safety employees and the public they protect and serve.
A strong argument can be made that the primary purpose of employment actions based on on-the-job possession of marijuana is to protect the public, not to punish the employee. In this case, the action taken by the department is regulatory or remedial in nature, rather than penal. Considering the totality of the circumstances, the action taken by the department serves a remedial goal driven by its responsibility to ensure competence among its officers, to protect its employees, and to provide public safety to the best of its ability.
Finally, Question 2 makes a strong distinction between possession and use of marijuana, specifically permitting the enactment of ordinances targeting public use. In our opinion, the drafters of Question 2, and the voters who approved it, did not intend to permit the possession of marijuana in a manner inconsistent with public safety.
Question 2's definition of possession includes having metabolized marijuana or THC in the body. Does that mean police officers can work while under the influence without consequences?
No. Question 2 distinguishes between possession and use, and does not prohibit sanctions based on working under the influence.
What if a police officer possesses marijuana by being under the influence and violates an existing department personnel policy?
Question 2 specifically states that it does not repeal or modify existing personnel practices or policies concerning the operation of motor vehicles or other actions taken while under the influence of marijuana or THC. So, if a police officer violates an existing personnel practice or policy while under the influence, he/she may be subject to penalty, sanction, or disqualification.
What is the status of existing statutory disqualifications for police officers who violate the controlled substance laws?
A felony conviction is a disqualification for initial appointment as a municipal police officer under G.L. c. 41, § 96A. As possession of any amount of marijuana was a misdemeanor crime under G.L. c. 94C, § 34, prior to Question 2, it was not a disqualification. On the other hand, under G.L. c. 22C, § 14, any conviction under chapter 94C is a disqualification for appointment as a member of the State Police. In the future, violations of Section 32L will not disqualify applicants to the State Police. However, we do not read the disqualification provision of Question 2 as applying retroactively to past convictions under G.L. c. 94C, § 34, which may involve substances other than marijuana or THC, and may involve quantities over one ounce.
Does a civil citation for possession of marijuana issued under Section 32L disqualify an applicant for a firearms license?
No. Because possession of an ounce or less of marijuana is now a civil infraction, this infraction will not appear on a CORI report. The text of the new Section 32L clearly states that these infractions should not serve as a disqualifier for any government program or privilege: "[N]either the Commonwealth nor any of its political subdivisions or their respective agencies, authorities or instrumentalities may impose any form of penalty, sanction, or disqualification on an offender for possessing an ounce or less of marihuana."
For firearms license applications filed after the effective date of the Question 2, does a prior conviction for possession of marijuana still serve as a disqualifier?
Yes. Question 2 does not turn past convictions for possession of marijuana into civil offenses. It simply decriminalizes the possession of an ounce or less of marijuana or THC after January 2, 2009.
Until January 2, 2009, a conviction for possession of marijuana in any amount would come under G.L. c. 94C, § 34, and appear as "possession Class D" on the CORI report. A section 34 conviction may encompass controlled substances other than marijuana, and may involve quantities more or less than an ounce, none of which appears on the CORI report or on the court's docket entries.
The prohibition on governmental disqualifications, which will appear in the new Section 32L, refers to "an offender." The term "offender" thus refers to an offender under § 32L, not a person with a past criminal conviction under § 34.
May the licensing officer reject an applicant for a license to carry as an unsuitable person based on possession of marijuana?
The prohibition of disqualifications means that the licensing officer cannot reject an applicant on the ground that he or she has been issued a single or multiple citations for possession of an ounce or less of marijuana in violation of Section 32L. A licensing officer, however, may be able to reject an applicant on the ground that he or she is a known user of controlled substances, has a substance abuse problem, or is suspected to be linked to drug dealing.
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