Des Moines, Iowa Marijuana Possession Lawyer
Marijuana is still illegal in the state of Iowa, which means that you can be charged with a crime if you are caught with it. However, you can fight these charges. An experienced Iowa marijuana possession lawyer will know how to use these defenses to help you avoid a conviction.
Out-of-state medical marijuana patients, in particular, are vulnerable to unjust prosecutions under Iowa's marijuana laws. Fair or not, cannabis criminalization classifies marijuana as a "Schedule 1 intoxicant." The legislature asserts that weed has a "high potential for abuse" and "no currently accepted medical use."
If the State charges you with a crime related to marijuana, contact an experienced criminal defense attorney as soon as possible. An attorney can help you understand the charges against you and the possible defenses that may be available. Contact us today for a free consultation. We will review your case and help you decide the best course of action.
Penalties for possessing marijuana in Iowa
If you have no prior convictions for possessing other drugs, possessing precursors, or for failing to possess a tax stamp, penalties are as follows:
- For an Iowa first offense possession of marijuana charge, the maximum punishment is a $1,000 fine plus a 15 percent surcharge. Additionally, a judge could sentence you to up to 6 months in jail. (Iowa Code Section 124.401(5))
- For second offense marijuana possession, Iowa imposes fines of $430-$2,560. Further, the judge could impose incarceration for up to 365 days.
- Third offense possession of marijuana is an aggravated misdemeanor. Fines cost $855-$8,540. The maximum sentence is two years in prison.
- Subsequent offenses also constitute aggravated misdemeanors.
For all drug possession charges, there is a minimum 48-hour sentence. The judge can put you on probation and suspend the 48-hour mandatory minimum for drug offenses. Your probation officer may subject you to random drug testing.
Additionally, there is a 15% surcharge for all criminal fines.
Will I Lose My Driver's License for a Marijuana Possession Conviction?
As of 2018, the state will not revoke your driver's license for marijuana possession. A marijuana conviction could still affect your relationships and your ability to get a job. Additionally, a marijuana conviction can affect your student loans and child custody. Long-term, this can be very expensive.
Enhancements for Drug Possession, Precursor Possession, and Tax Stamp Violations
If you have convictions for possession of controlled substances other than marijuana, precursor convictions, or tax stamp convictions, you're facing harsher penalties:
What Are the Elements of Possession of Marijuana?
The prosecution must prove that a defendant knew that the substance was marijuana.
They can prove this knowledge in several ways. Witness testimony or a defendant's admission could be enough. Sometimes, the defendant's actions may support a knowledge inference. For example, if the defendant had a large quantity of the substance or if they grew it, a jury may assume knowledge. Other circumstantial evidence can establish knowledge. For example, if a defendant packaged marijuana like illegal drugs, the court may infer that the person knew it was marijuana. Alternatively, the court may infer knowledge previous drug-related offense convictions.
However, even if the prosecutor can prove that the defendant knew the substance was marijuana, they must also prove that the defendant intended to possess it. If the defendant can show that they did not know the substance was marijuana or that they did not intend to possess it, they may be able to avoid a conviction. Ultimately, whether or not they can prove knowledge will depend on the specific facts of each case.
How Does Iowa Law Define "Possession" Of Marijuana?
To convict you for possession of marijuana, the prosecutor does not have to prove that you had the marijuana on your person.
The prosecutor must prove that you knew the marijuana was in your possession and that you had control over it. They can prove possession in either of two ways. Either "actual possession" or "constructive possession" is adequate to support a conviction. Proving possession requires evidence that you owned the cannabis, used it, or had the power to dispose of it. This is called “constructive possession.” The State could prove constructive possession even if you did not have the marijuana on your person. For example, if the police find marijuana in your car while you aren't present, they could charge you with possession. Alternatively, they could prove guilt with actual possession. Direct physical control over drugs establishes actual possession.
What Does It Mean to Have "Dominion and Control" Over a Controlled Substance?
"Dominion" and "control" are often used interchangeably in drug possession cases. Owning or possessing something is "dominion." Control refers to the power or ability to influence or direct something.
The prosecution can prove dominion and control in one of several ways. One way is by finding drugs on the defendant's person. Generally, drugs in a defendant's pocket are within the defendant are within the defendant's exclusive control.
Another way the prosecutor can prove dominion and control arises when police find drugs in a location under the defendant's control, such as their home or car. A defendant's sole access to the drugs' location establishes a rebuttable presumption.
Finally, a jury may infer dominion and control. Evidence that the defendant purchased the drugs supports prior possession. Similarly, evidence that a defendant possessed marijuana paraphernalia suggests that a defendant knew about the drugs.
How Can They Prove That Something Is Marijuana?
The Smell Test Isn't Enough.
Cops have mistaken plenty of things for the "distinctive" odor of marijuana. For example, law enforcement once raided a couple's home to look for marijuana. They applied for a search warrant because they could not tell the difference between a hibiscus plant and a cannabis plant. Police raided another elderly couple after mistaking the smell of moss phlox for marijuana odor. Additionally, hops smell like marijuana. Marijuana smells like skunks. Iowa State University researched compounds in both cannabis and skunk smell. Skunk cabbage is common in Iowa and also smells like skunk -- and therefore like marijuana. Therefore, the "smell test" is not dispositive.
Even Laboratory Testing May Be Insufficient.
If cops accuse you of possession of marijuana in Iowa, it's essential to understand how the state laboratory tests substances.
The cannabis plant produces both marijuana and hemp. Hemp is legal unless you smoke it. Marijuana is illegal. The only difference between marijuana and hemp is the level of Delta (9)-tetrahydrocannabinol. If the combined amount of THC and THC-A total more than .3% of the plant's weight, a cannabis sample meets the legal definition for marijuana.
In most cases, the laboratory uses a semi-quantitative test to measure how much THC is in a sample. THC is the active ingredient in marijuana. It is a psychoactive compound. Iowa's DCI Crime Laboratory mirrors the method used by the DEA. This semi-quantitative test can detect very low levels of THC.
Fortunately, the DCI lab's semi-quantitative test requires at least 5 grams of material for proper testing. Except in "exceptional circumstances" -- including things like felony crimes of violence, offenses causing serious injury or death, and weapons crimes -- the DCI lab does not test samples involving less than 5g of material. This can be helpful to defendants charged with possessing tiny amounts of plant material or residue.
What to Do If Police Arrest You for Marijuana Possession
Stop! Don't talk! Don't admit to anything. The police will encourage you to cooperate. The police can and will lie to you. They want you to admit to the crime. Admitting to a crime makes officers' (and prosecutors') jobs easier. The police do not want you to invoke your right to a marijuana possession lawyer.
When officers perform a raid or execute a warrant, being at the wrong place perform a raid or execute a warrant doesn't guarantee a conviction.
If the police ask for permission to search you, your car, or your home, DO NOT GIVE CONSENT. If officers indicate intent to search anyway, do not interfere. State plainly and clearly that you do not consent to any searches. Afterward, wait quietly. Try to make mental records about what happens so that you can tell your lawyer later.
Know What to Ask
Develop good police habits. Even if you're innocent, when the police approach you, tell them that you want to leave. Ask the officer if you are free to go. If the officer tells you that you are free to go, go. If the officer tells you that you cannot leave, ask for clarification. Ask them -- "does this mean that I'm under arrest?"
If they arrest you, be clear! State "I want to remain silent." Also say that "an attorney told me never to speak to police without a lawyer." After that, don't talk! Don't answer questions. Don't initiate conversation. You could accidentally give up your right to remain silent if you talk.
Call a marijuana possession lawyer soon as you can to discuss your arrest and your next steps.
How Your Marijuana Possession Lawyer Can Help
The first thing that will happen is a conversation. Many people facing marijuana possession charges feel less stressed after talking to an Iowa marijuana possession lawyer.
You should tell your drug defense attorney what evidence the State has. Don't volunteer additional information unless you are sure the information is helpful to your case. If you are unsure, ask your lawyer -- "would it be helpful for me to talk to you about ____?" An Iowa criminal defense attorney may speculate about issues that might arise in your case but cannot ethically guarantee any outcomes.
Explore Dismissal Possibilities
After you hire a drug defense firm, your attorneys will assess whether or not there is a way to make your charges go away. They can review the evidence, including your statements, to determine whether or not there's a significant likelihood that the police improperly searched you or violated your rights in another way. If a judge agrees to suppress evidence in your case, the prosecutor may not have enough evidence to convict you. Dismissals often follow suppression orders.
If you're acquitted of all charges, all charges are dismissed, or you complete probation after receiving a deferred judgment, your weed charges may be eligible for expungement.
Explore Plea Bargain Options
If dismissal is a pipe dream, your lawyer will review any plea bargain the state offers. The prosecution does not always offer a plea deal. Nonetheless, plea agreements resolve most drug possession cases in Iowa. Very few marijuana cases go to trial. Jury trials can quickly become time-consuming and expensive.
If you're eligible for a deferred judgment, this might be an option for your marijuana possession charge.
After successfully discharge from probation, a deferred judgment won't show up on basic criminal background checks or Iowa Courts Online. However, the disposition will still show up in specific databases. If you sign a waiver to let an employer do an in-depth background check, they will likely find out about your marijuana charge.
The prosecution often offers to recommend a sentence that you could probably get after trial anyway. When this happens, you should consider whether or not you want to give up your chance of being acquitted at trial.
Drug Defense at an Iowa Marijuana Possession Trial
You have a constitutional right to a trial by a jury of your peers. You are the only one who can decide whether or not to go to trial. Your Des Moines criminal lawyer can guide you on whether trial seems like a smart move. No attorney can guarantee any particular outcome. You are the only person who can decide whether or not to take your case to trial.
Another constitutional right you have is a presumption of innocence. The government must prove your guilt beyond a reasonable doubt. Until and unless they succeed, a jury must presume your innocence.
Trials do not determine whether or not you're innocent. Instead, the focus is on whether or not the prosecution has proven your guilt beyond a reasonable doubt. Therefore, after the trial, the jury will find you "Guilty" or "Not Guilty."
Sentencing and the Trial Penalty
Many people worry that they will receive a worse sentence after trial if they reject a plea offer. This isn't necessarily true. First, accepting a plea offer does not bind the judge. The judge is still free to impose any legally-acceptable sentence. Second, you still get to argue sentencing if the jury convicts you. Your sentence after trial could often be better than the plea offer was. Because of this, if you can afford a trial and if there is a viable route to reasonable doubt, trial may not be a bad option.
Iowa Marijuana Trafficking Crimes
Delivering and distributing marijuana is more severe than marijuana possession. Unlike simple possession, drug trafficking charges are felonies.
How Can the Prosecution Prove Intent to Distribute a Controlled Substance?
The prosecution can prove intent to distribute a controlled substance in a few different ways. First, the drugs' weight could support intent. If they seized more drugs than necessary for personal use, the drugs' weight can evidence intent to distribute. Another way the prosecution can prove intent to distribute is through inference from the defendant's text messages or statements. For example, if you frequently write about selling drugs or you mention drug deals in conversation, your statements suggest intent to distribute drugs. Finally, the prosecution can use circumstantial evidence to prove intent to distribute. This might include evidence of large cash deposits, frequent meetings with known drug dealers, and things like scales and baggies. Taken together, this evidence can help to prove that the defendant intended to distribute drugs.
In some circumstances, it may become sensible to cede possession and simply argue that a defendant possessed a larger-than-average amount for personal use. Understandably, some defendants may prefer not to make frequent drug purchases. Alternatively, they may have addictions that lead them to use a larger volume of drugs more frequently than others.
How Do Police Weigh Drugs in Iowa?
When deciding what level of a drug offense to charge you with, a prosecutor assesses the drug's weight. They don't just weigh the drug in isolation, though. When police officers in Iowa weigh drugs, they account for the weight of any mixture or substance containing a detectable amount of marijuana. For example, if a baggie of marijuana is mixed with tobacco, the "mixture" would include both the weed and the tobacco. See State v. Maghee, 573 N.W.2d 1, 12 (Iowa 1997) (upholding a conviction when the State proved that a defendant had three bricks of a mixture that contained a detectable amount of cocaine.)
Law enforcement might also include the weight of the packaging. The packaging includes anything that the drug is packaged in, such as a container, envelope, or baggie.
Police weighing drugs use scales that measure weight in grams.
Your drug defense lawyer will review the margin of error and consider how recently a scale was calibrated.
What Are the Possible Defenses to Marijuana Trafficking Charges in Iowa?
If they've charged you with trafficking marijuana in Iowa, you may wonder what defenses are available. One possible defense is that you didn't have intent to distribute. For example, if you simply carried a small amount of marijuana for personal use, you would not be guilty of trafficking. Intent to distribute is an essential element of the crime of trafficking. If the prosecution can't prove that you had this intent, they may reduce or dismiss the charges.
Another defense is that you did not engage in distributing or delivering marijuana. This might be the case if you were caught with a large amount of the drug, but there's no evidence that you sold, delivered, or otherwise distributed it to anyone. However, this can be difficult to prove, as the prosecution only needs to show that you intended to facilitate the delivery of marijuana, even if you did not participate in the transaction.
Finally, you could argue that you didn't know the drug was marijuana. If, for example, you were charged with trafficking after being caught with a large amount of hemp, this defense might be successful.
Whatever defenses are available in your particular case will depend on the facts and circumstances surrounding your arrest, so it's essential to speak with an experienced criminal defense attorney as soon as possible to discuss your options.
Possessing a small amount of marijuana to share with friends is an accommodation offense.
Accommodation offenses involving less than half an ounce of cannabis are punished like possession cases rather than trafficking cases. While this may seem like a minor offense, it can have significant consequences. If you are convicted of an accommodation offense, you may be subject to a fine of up to $1,000 and 30 days in jail.
It's important to note that accommodation offenses involve only marijuana plant material. Marijuana derivatives and extracts, like shatter or hashish oil, don't count. Sharing even a tiny amount of a marijuana concentrate with a friend can be prosecuted as felony drug distribution.
If you have been charged with an accommodation offense in Iowa, it is essential to seek the advice of an experienced criminal defense attorney.
Iowa Cannabidiol and Medical Marijuana
Iowa's Medical Cannabidiol Act - Chapter 124E
Iowa lawmakers expanded the Iowa Medical Cannabidiol Act in 2017. Further efforts by Iowa lawmakers to increase the THC cap have not yet been successful.
Permanent Iowa residents who are at least 18 years old can now apply for access to medical cannabidiol in Iowa. Health care practitioners sign written certifications that patients suffer from a debilitating medical condition, including severe wasting. The patients submit those certifications to the department of health and pay a fee of $100. (The fee is only $25 for people on social security disability, supplemental security insurance, or medical assistance.)
Legislation introduced in early 2022 sought to expand the medical marijuana program. Problems with the existing medical marijuana program include a low THC limit, limitations on acceptable forms of cannabidiol, and strict limitations on qualifying medical conditions. Lawmakers have also contemplated legalizing recreational marijuana in Iowa. Dispensary licensure requirements have made it difficult for many suffering patients to affordably and conveniently access their necessary medication.
What's the Difference Between Iowa Cannabidiol and Medical Marijuana?
For purposes of Iowa law, medical cannabidiol is any pharmaceutical-grade cannabinoid -- usually THC or CBD -- found in either India or Sativa cannabis plants.
Will the Reciprocity Defense Protect Me?
If you're driving through Iowa with your valid medical marijuana card from your home state, it is entirely possible that you will find yourself arrested and your medication seized.
Under Iowa law, though, that shouldn't happen. Iowa Code 124E.18 has a reciprocity provision. Out-of-state patients with marijuana registration cards will have their marijuana cards recognized. Out-of-state marijuana cards don't allow you to buy medical marijuana from Iowa cannabidiol dispensaries, though.
Any state or federal felony charge that involved possessing, using, or distributing a controlled substance will disqualify you from working in or owning an Iowa medical cannabidiol dispensary.
Possession of a Controlled Substance Enhancements
Habitual Offender Enhancement for Marijuana
Iowa Code 902.8 can enhance felony possession charges.
Some people call a habitual offender enhancement the "third strike" rule. Do you already have two or more felony convictions? Convictions from anywhere in the United States count. If so, your subsequent class C felony or class D felony conviction in Iowa makes you a "habitual offender."
Habitual offender convictions prevent you from getting parole for at least three years.
Call (515) 200-2787 today for a free initial consultation.