Sunday, April 24, 2011

Selfish Stoners are Less Culpable

Sometimes growing marijuana is NOT "Marijuana Cultivation."

I know that sounds strange, but it's true.  It all depends on the intent of the individual who is growing the funny green plant.  "Intent" can be a very complicated legal concept - and it takes a while to get the hang of it.  Last week, there was some discussion of intent in the previous post about the "Stripper Arson" question, and I got some great feedback from some of you about intent.  That was a more complicated issue of "specific intent." Today, the conversation about intent will be very simple.  The question for the person growing is this:  Do you intend to transfer the pot, or do you intend to smoke it yourself?  If the stoner in question intends to hoard his or her weed, they are not "cultivating" for the purposes of Kentucky law.  KRS 218A.1423 controls this act, and it reads:

218A.1423   Marijuana cultivation -- Penalties.
(1) A person is guilty of marijuana cultivation when he knowingly and unlawfully plants, cultivates, or harvests marijuana with the intent to sell or transfer it.
(2) Marijuana cultivation of five (5) or more plants of marijuana is:
(a) For a first offense a Class D felony.
(b) For a second or subsequent offense a Class C felony.
(3) Marijuana cultivation of fewer than five (5) plants is:
(a) For a first offense a Class A misdemeanor.
(b) For a second or subsequent offense a Class D felony.
(4) The planting, cultivating, or harvesting of five (5) or more marijuana plants shall be prima facie evidence that the marijuana plants were planted, cultivated, or harvested for the purpose of sale or transfer.

Subsection (1) is especially important to today's conversation.  In order to be guilty, a person must knowingly and unlawfully plant, cultivate or harvest marijuana "with the intent to sell or transfer" the marijuana.  If the "intent to sell or transfer" element is missing, the person is Not Guilty.

So, if a person is growing less than 5 plants, and they intend to keep the marijuana for themselves, they are not guilty of Marijuana Cultivation.  In actuality, said stoner may only be guilty of Possession of Marijuana (which will only be a Class B Misdemeanor beginning in June of 2011).  And "Bogarting."*  Keep in mind that even passing a joint to your buddy can constitute a "transfer" of marijuana.  So if a person grows, and intends to share in the least, they are guilty of Marijuana Cultivation.

The "5 plant" provision in subsection (4) of the above statute is especially important.  Growing marijuana is illegal in Kentucky regardless of the number of plants, but generally speaking, people who grow 5 or more plants are committing felonies.  Growing 4 plants or less will get someone in much less trouble.

If you have a Marijuana Cultivation charge in Louisville, Lexington, Frankfort, Elizabethtown, or the surrounding areas, call 502.618.4949 to speak with an experienced attorney.  You will not be charged for an initial consultation.  The lawyers at Gruner & Simms, PLLC have handled numerous Marijuana Cultivation charges with great success.

*"Bogarting" is not actually recognized as a criminal offense in the great Commonwealth of Kentucky.  Yet.

Questions answered in this blog post:  How many marijuana plants can someone grow in Kentucky without it being a felony, what is marijuana cultivation, what is the intent required for marijuana cultivation, how many weed plants is a misdemeanor, can I grow 5 plants in Kentucky, can I grow 4 plants in Kentucky, in Kentucky how many marijuana plants is a felony?


  1. Thanks for not bogarting the knowledge.

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