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Photo: Franklin County Prosecutor Chris Huerkamp. His answers are in italics.
Will people be arrested if they are caught bringing marijuana from Ohio into Indiana?
Under Indiana Law, it is illegal to knowingly or intentionally possess marijuana in any quantity, and it is classified as a misdemeanor offense. Therefore, any individual believed to be in violation of this law in the presence of a police officer could be subject to arrest. An officer could also exercise his/her discretion and issue a citation/summons to a suspected offender in lieu of a physical arrest.
It should also be noted that even if one legally consumes marijuana in Ohio, but subsequently operates a vehicle in Indiana while still under the influence of it, he/she could be subject for arrest and prosecution for OWI (including serious felony OWI offenses involving causation of serious injury or death).
In fact, under Indiana Law, the presence of any amount Schedule I or II controlled substance (including THC, marijuana’s active ingredient) or its metabolite in the blood of an individual who operates a vehicle subjects that person to criminal liability for an OWI offense.
However, the legislature has recently enacted a defense under the same law and bars criminal prosecution if the following 4 factors exist:
1.) the controlled substance in one’s blood is marijuana or its metabolite;
2.) the person is not intoxicated (as defined by Indiana Law);
3.) the person did not cause a traffic accident; and
4.) the substance was identified pursuant to a chemical test offered by law enforcement.
What is the charge for possession of a small amount of marijuana in Indiana? The penalty?
Simple possession of marijuana is a Class B Misdemeanor, punishable upon conviction by 0-180 days in jail with some or all of that time subject to being suspended for a term of probation, a fine up to $1,000, plus court costs and probation and/or countermeasure fees.
The offense can be elevated to a Class A Misdemeanor (up to 1 year in jail, fine up to $5,000) if the person has a prior conviction for a drug offense. It can be elevated to a Level 6 Felony (6-30 months in jail, fine up to $10,000) if the person has a prior conviction for a drug offense and possesses at least 30 grams of marijuana.
And the charge for selling marijuana in Indiana?
Dealing in Marijuana is a Class A Misdemeanor. The offense can be elevated to a Level 6 Felony if the person has a prior conviction for a drug offense and the amount involved is under 30 grams.
It can be elevated to a Level 5 Felony (1-6 years in prison, fine up to $10,000) if the offense involves sale to a minor, if the amount involved is at least 10 pounds, or if the person has a prior conviction for a drug offense and the amount involved is between 30 grams and 10 pounds.
How does Indiana law enforcement test a driver for marijuana impairment?
In addition to standard field sobriety testing, many local patrol officers have received advance training and additional certification as drug-recognition experts to detect possible drug (including marijuana) related impairment from drivers.
If an officer has sufficient cause to believe that a driver has operated a vehicle and is impaired as a result of marijuana use, the subject will be offered the opportunity to submit to a chemical test (typically a blood draw) to confirm or dispel the officer’s suspicions.
If a subject refuses, the officer can seek a search warrant from a judge to compel a blood draw from the suspected impaired driver. A subject’s blood test results are typically known and available to the police and/or prosecutor within 90-120 days of submission to the State lab for analysis.
What are the long-term consequences of a marijuana conviction on future employment?
Prosecutor Huerkamp explained.
“It is not for me to speak on how a current or prospective employer should consider the conviction history of an employee or applicant. However, common sense would suggest that while a marijuana-related conviction may be potentially disqualifying in certain fields, in others it may not have nearly as much bearing on one’s employability.
Has the Indiana Attorney General issued any new guidance for prosecuting marijuana cases?
Prosecutor Huerkamp answered.
As far as I know, the Indiana Attorney General’s Office has not issued any “guidance” to local prosecutors with regard to how marijuana cases should be handled. In January 2023, the AG published an official opinion with regard to the legality of THC Variants and Other Designer Cannabinoid Products (including but not limited to: Delta-8 & Delta-9 THC), but the validity of that opinion is being challenged in Federal Court by the Midwest Hemp Council. At last check, the litigation remains pending.
Expungement
In Indiana, otherwise eligible individuals can typically seek expungement of a marijuana conviction after the passage of 5 years for a misdemeanor and 8 years for a felony. The criteria for expungement are defined by statute.
Marijuana Remains Illegal
Although the legislature has determined that potential penalties for violations should be less serious than for other drugs such as meth, heroin, cocaine, and unlawfully obtained prescriptions, Marijuana remains an illegal controlled substance in Indiana.
Will Enforce the Law
As with any other type of criminal case, the Franklin County Prosecutor’s Office will continue to handle marijuana-related offenses on a case-by-case basis, and will seek to enforce the applicable existing law and pursue justice as dictated by the facts and circumstances of each case.
Contact State Legislators for Changes to the Law
If one believes that marijuana possession/use/distribution should be further decriminalized (or that offenders should face harsher potential penalties), then he/she should contact the appropriate local legislator with those concerns, not the local prosecuting attorney. I have authority to enforce the law, not to make or change it.
Finally, any and all suspected marijuana-related offenders remain presumed innocent unless and until proven guilty.
In Kentucky
The Kentucky state legislature legalized medical marijuana effective January 1, 2025. The state gave counties, cities and towns the option to allow or ban such sales within their boundaries. Northern Kentucky will be a patchwork of areas that will allow or not allow sales. Some jurisdictions are leaving the question of local sales to voters in November 2024. Recreational use of marijuana will remain illegal in Kentucky.
No Action on Indiana Legislation
Indiana House Bill 1410 for “Legalization of Cannabis” died in committee in January 2024. No votes were taken.
Reported by Sara Duffy
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