Does possession of an ounce or less of marijuana become legal on January 2, 2009?
No. Question 2 amends 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.

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 be subject to Section 32L.

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.. 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 information 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.

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 new 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.

How does the section citation process works?
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.

Does the penalty increase for subsequent violations?
No. Each violation of Section 32L is punishable by the $100 civil penalty.

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.

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.

How are youthful offenders 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.

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.

Does a civil citation for possession of marijuana issued under Section 32L disqualify an applicant for a firearms license?
No.

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.

When may police search for marijuana?
The new law has decriminalized the sanctions for the possession of an ounce or less of marijuana or THC; it has not legalized marijuana. Marijuana is still an illegal substance pursuant to G.L. c. 94C. The new law does not change police procedure relative to warrantless searches. Where exigent circumstances exist and police have probable cause based on the totality of the circumstances to believe there is either contraband present or evidence of a crime, police may conduct a search without a warrant.

May police consider the smell of unburnt or of freshly burnt marijuana as a factor in determining probable cause?
Yes. The presence of marijuana, or the smell of unburnt or freshly burnt marijuana are factors that may be considered in determining probable cause.  Police must be able to demonstrate familiarity with the smell of marijuana, whether burnt or unburnt, to justify a search on this ground.

May police conduct a search incident to an arrest for a Section 32L violation?
After Question 2, it is unlikely that police retain the authority to arrest without a warrant for mere possession of an ounce or less of marijuana.  Section 41 of chapter 94C authorizes warrantless arrests for any offense under chapter 94C, and an argument can be made that a Section 32L violation is still an “offense” under chapter 94C.  However, proponents of Question 2 would likely argue that by decriminalizing possession of an ounce or less of marijuana, Question 2 revoked officers’ power to arrest for this civil offense.

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.

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 find information about the drug awareness programs?
Question 2 requires the state Department of Youth Services (“DYS”) to develop the drug awareness program, which is required to include at least four hours of classroom instruction or discussion specific to the use and abuse of marijuana and other controlled substances... as well as ten hours of community service. Question 2 did not provide funding for such drug awareness programs, nor has the legislature appropriated any funding for this purpose. DYS and the Executive Office of Health and Human Services are in the process of designing a drug awareness program to comply with Question 2 to the best of their ability.

Source: Question 2 FAQ

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