CBS Boston

Marijuana Possession in Massachusetts: What is Now Legal, and What Remains Illegal

December 16, 2016

As just about every Massachusetts resident with a pulse is now aware, the voters decided on November 8th to “legalize” marijuana possession in the Commonwealth. Well, kind of. I intentionally used quotation marks because there are significant caveats to the new act under M.G.L. c. 94G of which most people are unaware and thus many pot smokers will unknowingly violate.  The most important fact is that the Controlled Substances Act, long- governed by M.G.L. c. 94C, is still in full effect. The new Act passed last month merely provides certain “personal use” exceptions for adults, both decriminalizing previously illegal conduct, and in some cases fully LEGALIZING other previously illegal conduct.

I have written this blog to highlight what I believe to be the most relevant and important points of the new law for the general public to know at this time. This blog in no way constitutes legal advice or an attorney- client relationship. If you have specific questions or personal issues, you should contact your own criminal defense attorney.

Personal Possession / Use in Public

As most pot smokers know, in 2008 the voters of Massachusetts decided to decriminalize simple possession of less than one ounce of marijuana. So long as the amount was less than one ounce, there was no indication of distribution, and no indication of an intent to distribute any of that small amount, then you could no longer be charged with a crime. (As a criminal defense attorney, after 2008 I found that more arrests for “Possession with intent to distribute class D” followed as the result of conduct that would have previously been charged as simple possession, as a mechanism for law enforcement to still make weed- related arrests given the decriminalization of simple possession, but I’ll save that for a whole other blog). Possession of that minor quantity became merely a ticket-able offense, sort of like a parking ticket,except the RMV was not enforcing license loss for such offenders. NOW, that same amount is not even a civil offense, but actually legal, provided that the person in possession is at least 21 years old and the amount is less than one ounce. The penalty for more than one ounce but less than two ounces remains a civil violation, while possession of more than two ounces remains a criminal offense under the Controlled Substances Act.

Those people under 21 years old caught in possession of any amount shall still be subject to a civil penalty (usually a fine), and required to complete a drug awareness program set out by the Controlled Substances Act.

Marijuana products or “open containers” of marijuana in the passenger area of cars are still illegal, the same way that open containers of alcohol in the car are illegal. What exactly are “open containers” of marijuana? I expect differing opinions and eventually a court decision will clarify the definition. Until then, anticipate law enforcement to apply a pretty liberal definition, so it’s probably best to just put the weed in your trunk when traveling. (Yes, it’s still illegal for any passenger to smoke weed in a moving vehicle, and you’re setting the driver up for a possible OUI- drugs arrest with the presence of lit paraphernalia or even the smell alone).

Smoking weed in public is illegal, the same way walking down a public sidewalk with a beer is illegal in Massachusetts. Also, any place where smoking tobacco is prohibited (think public buildings in Boston), so is smoking weed. The exception to this provision is local ordinances that allow smoking tobacco (or now weed) at certain bars and similar establishments.

Weed at Home

The new law gives pot smokers greater freedoms when it comes to possession in one’s own home. This means you may have more weed in your PRIMARY RESIDENCE, not your friend’s home. You may possess up to ten ounces in your own primary residence. However, any amount more than one ounce must be “secured by a lock.” Get yourself a weed safe.

You may now cultivate (grow) weed in your own home. If you live alone, you may grow up to six plants. If two or more adults (21+) live in the premises, up to twelve plants may be grown there. All of the plants must be in an area secured by a lock (think of having a separate room with key entry), and none of the plants may be visible from a public place; even through a window. The total amount of “cured product” (actual weed on the plants) must still be under ten ounces.


I put this section in quotation marks, because I anticipate a significant number of arrests, and later defenses in the criminal case, based on this issue. By that, I anticipate many law enforcement officials and defense attorneys to take different positions on whether the small amount of weed was “gifted” or sold. Under the new law, it is legal to GIVE (no money or compensation exchanged) up to one ounce of weed to another adult (21+), so long as the transfer is not advertised or promoted to the public. While I don’t anticipate many people advertising their desire to give away weed, I do expect the basis of the transfer (sale vs. gift) to be a common challenge in court.

The new “Regulation and Taxation of Marijuana Act” is a lot more complex than the points I have highlighted in this blog, but I hope this answers some basic questions for those who, well, might be interested.

A lot of people have been asking about how the legalization of marijuana in Massachusetts will effect OUI- drug offenses relating to marijuana. I intend to write a whole other blog on that issue in the near future.

If you have been arrested, charged with a crime, or have any other criminal matters in the state or federal courts of Massachusetts, contact our office for a free initial consultation:


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