Decriminalization of Marijuana Possession

Marijuana is not “legal” in Massachusetts.

In 2008 a ballot initiative was passed by voters that decriminalized the possession of small amounts of marijuana. While this does not mean that possessing a small amount of marijuana within the state of Massachusetts is legal, it does mean that possession cases that involve ounce or less of marijuana are not a criminal offense and are not reported to one’s criminal record. However, those that are found in possession of 1 ounce of marijuana or less will still face a civil infraction and be forced to pay a $100 fine.

What Marijuana Possession is Still Criminal in Massachusetts?

  • If you are under 21 it is still a crime to have marijuana.
  • If you have more than an ounce, that is a criminal charge.
  • If you sell marijuana, that’s a criminal distribution charge.


Possession of More than 1 Ounce.

If you are convicted of a first offense for possession of more than one ounce of marijuana, and if you have no other convictions on your record, you are entitled to probation (no jail time). Further, if you successfully complete probation for this offense, your record will automatically be sealed (except from law enforcement).

Second or subsequent offense:

  • Up to 6 months in jail;
  • $500 fine;
  • 1 year license loss (mandatory).


Operating a Motor Vehicle Under the Influence of Marijuana.

If you are proven Guilty of operating a motor vehicle while under the influence of marijuana, you will fact the same penalties as someone convicted of driving while under the influence of alcohol.


Possession with Intent to Distribute.

No matter how much marijuana you possess, possessing it with the intent to distribute it is a serious crime.

Often this is charged and proven based on the presence of so-called “indicia” of intent to distribute.  These include the presence of scales, plastic baggies for packaging, cash,  records of sales, and multiple cell phones.  Of course, the more marijuana you possess, the greater the likelihood you will be charged with possession with intent.

Distribution of Marijuana.

You can be found guilty of Distribution of marijuana even if no money changes hands.  Sharing a joint, or a bag, can result in a charge of distribution.

Marijuana in a School Zone.

Even if school is not in session, possession in a school zone with the intent to distribute is a mandatory jail sentence for anyone 18 or older.


Criminal Conspiracy.

Criminal conspiracy is an agreement by two or more persons to commit an unlawful act or to commit an act via unlawful means. Conspiracy is often charged as part of a drug case alleging a distribution network.

If you are charged with conspiracy, you are innocent until proven guilty. In order to prove you guilty, the Commonwealth must prove, beyond a reasonable doubt, that:

1) you joined in an agreement or plan with one or more other persons;
2) that the purpose of the agreement was to do something unlawful, or to do something by unlawful means; and
3) that you joined the agreement knowing about the unlawful plan and intended to help carry it out.

Easier to prove in Massachusetts than in some other states.

In Massachusetts, it is not required to prove that you took some step( s) towards carrying out the conspiracy. This makes convictions much easier to obtain.

In addition it is not always possible to prove a conspiracy by direct evidence, so prosecutors often rely on circumstantial to seek convictions. While some states also require an overt act in furtherance of the conspiracy to be proved, meaning the prosecutor must show that the defendant also took some step towards carrying out the conspiracy, Massachusetts court have long discredited this approach.

In most cases, conspiracy is charged in addition to another offense, normally the subsequent crime committed as part of the conspiracy. Under Massachusetts law, even if a defendant is acquitted for the subsequent offense, the defendant can be found guilty of conspiracy or vice versa.

Penalties for conspiracy.

The penalties for conspiracy can be severe, depending on the offense the defendant conspired to commit. If the defendant conspired to commit a felony that is punishable by life in prison, the punishment for the conspiracy offense could be up to 20 years in jail in addition to a $10,000 fine. If the defendant conspired to commit an offense that was punishable by ten years or more, then the defendant could be placed in jail for up to ten years and fined up to $10,000. For all other conspiracies to commit felonies punishable for less than ten years in prison, the defendant could be held in jail for five years and charged a fine of $5,000. Finally, if a defendant is found guilty of conspiracy to commit a crime that is not a felony, the defendant could still be given a sentence of up to 2 ½ years in jail and a fine of $2,000.

These penalties are in addition to any sentence for the crime that was the purpose of the conspiracy, such as distribution of drugs or fraud.

Distribution and Possession With Intent to Distribute

Distribution of a controlled substance and possession with intent to distribute a controlled substance are treated as essentially the same crime in Massachusetts.

A conviction of either for a class A, B, or C substance is a felony.  Conviction for a class D or E substance, as a first offense, is a misdemeanor, but the consequences can still be severe.

Distribution of a Controlled Substance.

Distribution of a controlled substance is exactly as the words indicate. In order to be charged, the police must have probable cause to believe that you actually took place in a transaction in which you gave another person an illegal substance.

The amount of the drug is not an element of the crime. It could, and often is, very little.  It is not necessary that any money be exchanged, either.  Simply handing a bag, joint, pill, or any other form of a controlled substance to another person is a crime.

This is a serious offense, and it will be vigorously prosecuted by the Government.

Possession of a Controlled Substance With Intent to Distribute.

The crime of Possession of Drugs with Intent to Distribute is a serious offense in Massachusetts. If you are convicted, the possibility of jail time is very high.

Massachusetts drug laws do not state a specific amount or quantity of illegal drugs or controlled substances that a person must be found with in order to be charged with the crime of Possession With Intent To Distribute. A person can be charged with this crime even if very uncertain or vague circumstances surrounded the arrest. Police will often charge a person with this serious offense if they find even the slightest evidence, or “indicia”, that you intended to distribute (or sell) the substance involved. These include the presence of scales, plastic baggies for packaging, cash, multiple marijuana plants, records of sales, and multiple cell phones.

Of course, the more of a substance you possess, the greater the likelihood you will be charged with possession with intent, but even a small amount of a substance can lead to a possession with intent charge in the presence of other “indicia.”

Proof of Possession with Intent to Distribute.

In order to convict you of Possession with Intent, the government must prove beyond a reasonable doubt:

First, that you intentionally or knowingly possessed the particular controlled substance charged; and
Second, that you intended to distribute, dispense, or manufacture the controlled substance.


Possession means that the defendant either had actual possession of the substance on his body, or that he exercised control over the substance and had ready access to it. Possession can be actual or it can be “constructive”. “Constructive possession” means that you have control over something even though it is not in your hands, on your body, or right next to you. You might have constructive possession over something that is in the trunk of a car you own, or buried in your back yard.

Proving intent.

A person’s intent is his or her purpose or objective. Determining what is in someone’s mind is sometimes very difficult, but jurors are told that they should examine the defendant’s actions and words, and all of the surrounding circumstances, to help them determine what the defendant’s intent was at that time.

Jurors are also instructed that m as a general rule, it is reasonable to infer that a person ordinarily
intends the natural and probable consequences of any acts that he does voluntarily or deliberately.

A jury does not have to find that the defendant knew that he was breaking the law, but it is necessary that they find he intended the act to occur which constitutes the offense.

Penalties for Possession with Intent to Distribute.

Depending on the drug involved and which class of controlled substance the drug belongs to, defendants charged with repeat offenses could face severe penalties including minimum-mandatory sentences and lengthy state prison sentences.

Because there are a variety of drugs that are considered controlled substances, there is no “one” punishment or penalty that attaches to this crime. Instead, the penalties differ depending on the particular drug that was involved, and the class of controlled substances that the drug belonged to. Most often, Possession With Intent To Distribute usually involves either heroin, cocaine or marijuana.

Possession Of Heroin With Intent to Distribute.

Heroin is a Class A controlled substance Penalties are governed by Massachusetts General Laws Chapter 94C Section 32. The punishment following a first conviction of this offense ranges from 2 ½ years in a House of Correction/County Jail, to as much as ten years in state prison. In addition to incarceration, there is also a fine of anywhere from $1,000 to $10,000 that a judge can impose. A second conviction carries a mandatory minimum prison sentence of 5 years to a maximum of 15 years.

Possession of Cocaine With Intent to Distribute.

Cocaine is a Class B controlled substance. Penalties are governed by Massachusetts General Laws Chapter 94C Section 32A. The punishment following a first conviction of this offense includes 2 ½ years in a House of Correction/County Jail, together with a fine ranging from $1,000 to $10,000. Penalties following a second (or subsequent) conviction carry a 3 year mandatory minimum sentence to state prison, with a possible maximum sentence of 10 years. In addition to incarceration, a judge can impose a fine ranging anywhere from a minimum of $2,500 to a maximum $25,000.

Possession of Marijuana With Intent to Distribute.

Marijuana is a Class D controlled substance. If an individual is arrested for possessing marijuana and police or prosecutors believe that the defendant intended to distribute it, they will be charged with Possession with Intent despite the decriminalization of possession of less than one ounce of marijuana.

The punishment following a first conviction of this offense includes a 2 year sentence to a House of Correction/County Jail and/or a fine of $500 fine. Penalties following a second (or subsequent) conviction carry a minimum sentence of 1 year up to a maximum of 2 ½ years in a House of Correction/County Jail. A second conviction also carries a minimum fine of $1,000, up to a maximum of $10,000 dollars.

Penalties for Possession of Intent To Distribute Other Drugs.

The following are minimum penalties for each class of Controlled Substance:

  • Class A substance: First (1st) Offense: 2 ½ years in a House of Correction/County Jail; Second (2nd) Offense: Mandatory minimum of 5 years in a state prison.
  • Class B substance: First (1st) Offense: 2 ½ years in a House of Correction/County Jail; Second (2nd) Offense: Mandatory minimum of 3 years in a state prison.
  • Class C substance: First (1st) Offense: 2 ½ years in a House of Correction/County Jail; Second (2nd) Offense: Mandatory minimum of 2 years in a state prison.
  • Class D substance: First (1st) Offense: 2 ½ years in a House of Correction/County Jail; Second (2nd) Offense: Mandatory minimum of 2 years in a House of Correction/County Jail.

Note: For a conviction in any class of drugs, if the arrest occurred within a school zone, a mandatory minimum sentence of 2 years’ incarceration follows a first offense.

School Zone Drug Violations

School Zone Mandatory Minimum.

In Massachusetts, otherwise relatively simple drug charges are dramatically escalated when they occur within 300 feet of a school or park (this distance was reduced from 1000 feet to 300 feet in 2012). When someone is charged with a drug offense in a “school zone,” the penalty for the school zone violation includes a mandatory minimum sentence of two years in jail, which must be imposed “from-and-after” the punishment for the underlying drug offense. This means the mandatory minimum does not even begin to run until the punishment for the underlying offense is done.

For example, if you are sentenced to sixty days for possession and the two year mandatory minimum because you were arrested in a school zone, then you must serve the sixty days in jail, then begin the two year sentence on day 61.

Defending a School Zone Charge.

First, before the Commonwealth can prove a violation of the school zone law, it must prove the underlying drug charge.

Second, the Commonwealth must prove that the violation occurred within 300 feet of a school, park, daycare center, or other similar location described in the statute.

Beyond the defense of the underlying charge, there are viable defenses to the allegation that the offense occurred in a school zone. The police and district attorneys are not often required to prove that a given property is a “school” or “park” as defined in the statute. Nor are they often required to prove the distance from one point to another, which is required to prove a school zone violation. Sometimes, the police bring the charge of a school zone violation based on an approximations made beforehand which may have never been tested, but if the Commonwealth wants to impose a mandatory minimum because of a school zone violation, even the measurements made by police must be called into question.

Possession of Controlled Substances

Controlled Substance Classification in Massachusetts.

Massachusetts classifies controlled substances on a 5 tier, A through E scale.

Class A – Some examples of class A drugs are heroin, morphine, codeine, or ketamine, although other drugs are listed as class A. These drugs are considered to be the most dangerous of controlled substances and carry the harshest possession penalties.

Class B – While not classified as dangerous as class A drugs, class B drugs are still considered very dangerous and the possession of these drugs will carry harsh penalties. Drugs considered to be class B are cocaine, crack, PCP, LSD, or amphetamines.

Class C – Class C drugs will carry less harsh penalties than classes A or B, and these drugs include mescaline, diazepam, or peyote.

Class D – Class D drugs are considered to be less dangerous on the controlled substance scale, and this class includes marijuana, hashish, or any drug containing THC as its psychoactive component.

Class E – Class E drugs include prescription medication, and if a person is found not to have a prescription for the class E drugs they are in possession of they may face criminal drug possession charges.

Each class of controlled substances carries its own penalties for possession. Class A drug possession holds the harshest penalties for even small amounts of the drug, while the penalties incurred for possessing classes D or E drugs are much lower.

Penalties for Controlled Substance Possession.

Class A – The possession of a class A substance will come with a period of incarceration of up to 2 years in jail for a first time offense, and these penalties can go as high as 5 years in prison for subsequent offenses. These charges may also come with potential fines that go as high as $2,000, or $5,000 if the drug in question is heroin.

Class B – A first time offender may receive up to a year in jail, while those with past convictions could face 2 years in jail. These charges may also come along with fines.

Class C – Possession of a class C substance in the state of Massachusetts is similar to possession of a class B substance in terms of penalties. Often, a first time offender will face up to a year in jail as well as fines, while the penalties will grow with subsequent offenses.

Class D –The maximum penalty a person may incur for possessing a class D substance, such as marijuana, is a jail sentence of up to 6 months as well as a fine not exceeding $500 and a 1 year driver’s license revocation. Typically, the penalties for possessing a class D substance, particularly for a first time offender holding a small amount, are much less. Possession of less than one ounce of marijuana is not a crime at all and you can only be prosecuted for an amount exceeding 1 ounce or distribution.

Class E – Possession of a class E substance in the state of Massachusetts may result in a misdemeanor charge as well as probation and/or a fine.

Possession Of Heroin in Massachusetts.

Heroin possession carries some of the weightiest penalties in the state of Massachusetts. Although a class A drug, heroin possession and other heroin related charges will often carry penalties harsher than those for other Class A substances.

A first time offender facing heroin possession charges may be forced to pay a fine of up to $2,000 as well as a 2 year prison sentence.

For subsequent charges, a convicted person could then face up to 5 years in prison as well as a fine of up to $5,000. Also, while the possession of other classes of drugs will often come with a misdemeanor charge, heroin possession is more likely to be considered a felony.

Knowingly Being Present Where Heroin is Kept.

Knowingly being present where heroin is kept is a misdemeanor under Massachusetts General Laws Chapter 94C Section 35. You can be convicted of this crime if the district attorney proves beyond a reasonable doubt either:

  • That you knew you were at a place where heroin was kept or deposited; or
  • That you were with another person who you knew to be in possession of heroin.

It is not a crime to be present where drugs other than heroin are present, even if you are aware of it. For example, it is not a crime to knowingly be present where marijuana is kept, stored or even grown. This is because the legislature considers heroin use or sale to be so dangerous and destructive that merely being around the drug should be a crime.

Drug Trafficking

Drug Trafficking & Distribution

Selling and distribution of illegal drugs or prohibited substances is a crime at both state and federal levels. Persons charged with drug trafficking and distribution face serious penalties, including sentencing, fines and loss of freedom. It is essential to get an experienced Criminal Defense Lawyer to help you fight for your rights and freedom if you are charged with this type of criminal activity.

Drug Trafficking & Distribution Laws

In the state of Massachusetts, the possession or trafficking of drugs or narcotics is defined as the possession of the drugs with an intention to distribute them, or the actual distribution of drugs or narcotics. You would be charged either with possession or trafficking, depending on how much of those illegal drugs you possessed and whether you had any drug distribution paraphernalia in your possession.

In a trial, the prosecutor needs to prove several elements beyond a reasonable doubt. All elements of the drug possession and the amount of drugs that were charged in the indictment must be proven. Drug trafficking is the most serious of all drug crimes in Massachusetts and they have a mandatory minimum prison sentence that a convicted person must serve before they can get a parole.

The three most frequent types of drug possession and trafficking in this state are:

  • Marijuana
  • Cocaine
  • Heroin

About Drug Dealing Laws in Massachusetts

Drug possession is a serious crime in Massachusetts and it is dealt with harshly. Trafficking is an even greater crime, with harsher punishments. If a person is convicted for the illegal possession of a prescription drug, they can be sentenced to jail for up to one year and be fined $1,000.

Someone who is found in possession of heroin will get two years in jail and a fine of up to $2,000. Possession of the last of these three prohibited drugs, marijuana, will land a convicted person with up to six months in jail and a fine up to $500.

Sentencing for Trafficking in Massachusetts

Drug Trafficking in Massachusetts is a Class D Felony. If you are convicted of this criminal offense, you could receive a serious sentencing:

  • 2.5 to 15 years in prison if you are found guilty of trafficking 50 pounds or more of the drug. You may also face another 1 to 2.5 years in the county jail; a one year sentence is mandatory.
  • 3 to 15 years in state prison is the sentence for trafficking 100 pounds but less than 2000 pounds. There is a minimum three year sentence for an offense of this magnitude.
  • 5 to 15 years in state prison is the sentence for trafficking 2000 to 9999 pounds. The minimum sentence required is five years.

Drug Trafficking for cocaine in Massachusetts is more serious than a conviction for trafficking marijuana. It is a Class B Felony. For a conviction, the following sentences apply:

  • For up to 14 grams but less than 28 grams of cocaine, you get 5 to 20 years in prison; there is a five year minimum sentence.
  • For up to 28 grams but less than 100 grams, there is a sentence of 10 to 20 years in prison; the minimum sentence is 10 years.
  • For up to 100 grams but less than 200 grams, 10 to 20 years in prison; 10 years minimum sentence.

Anyone convicted for trafficking in heroin in Massachusetts will be charged with a Class A Felony.

  • 14 grams but less than 28 grams of heroin gets you up to 20 years, with five mandatory years in prison.
  • 28 grams but less than 100 grams will bring 20 years in prison and a seven year minimum sentence.
  • 100 grams but less than 200 grams is a 20 year prison sentence with 10 year minimum sentence.

Defense for Drug Trafficking Charges

The best defenses are created by experienced Drug Trafficking Criminal Defense Attorneys. They use multiple defenses to protect their clients and create defenses customized for each case and client.

In many drug trafficking cases, the person charged with this crime is merely a mule or agent, and that this type of participant was not the target of legislators who imposed mandatory sentences for controlled substances. When the lawyer is familiar with the court systems, judges, prosecutors and other factors, they may use a mule defense to benefit their client.

New laws and rulings also affect the defense strategy used by Criminal Defense Attorneys. They understand any ambiguity in mandatory minimum sentencing. They can argue a defense that there is no tie to a larger organization, no violence or weaponry was used and cite other factors to help strengthen your defense case. They will call in reliable resources and expert witnesses to support your defense case.

An experienced drug trafficking lawyer will use many strategies to circumvent or avoid minimum mandatory prison sentences. Some claims in this area include challenging the admissibility of any State evidence. Medical records are usually protected, but if used for prosecution of drug trafficking, there could be a potential error there to exploit in your defense. Lawyers always are watching for any violation of constitutional rights.

Other challenges are based on search and seizure tactics. If there were violations here, that evidence could be suppressed. Entrapment is another possible defense argument if a suspect was persuaded to commit a crime by undercover agents. The lawyer will also present effective cross examinations of government witnesses, to try to show motivations and lack of credibility.