Sunday, June 5, 2011

As of Wednesday, You Cannot be Arrested for (only) Smoking Marijuana in Public.

Want to watch the law change?  You can physically see the big changes happening to Kentucky law, right before your eyes.

Many of the changes (brought to you by the letters HB and the numbers 463) to the Kentucky Revised Statutes are taking place this week.  Significant parts of House Bill 463 are solidifying as law on June 8, 2011 (which is this Wednesday).  And if you go to the KRS online, you can physically watch the changes taking place.  

If you click on the above link, you will see both the old and the new law posted under KRS 218A.1422, the Possession of Marijuana statute.  This double entry of the law evidences the change in Kentucky law - where the possession of marijuana has previously been a Class A misdemeanor, but as of June 8, 2011, it will be a Class B misdemeanor with a 45 day jail cap.  Any Louisville drug charge lawyer will tell you that this is significant de-criminalization, because a Class A misdemeanor carries up to twelve (12) months in jail.  In short, as of June 8, 2011, the maximum penalty for marijuana possession will be about 12% of what it previously has been.  Big change.

I’m not sure why, but some of the KRS changes are already posted without the previous laws.  For example, KRS 218A.1411, which governs Trafficking in Controlled Substance in or Near School, already has the changed law posted.  HB 463 has reduced the geographic scope of what will be considered “near” a school from 1000 yards to 1000 feet.  The statute has the “effective date” listed as June 8, 2011.  So technically, the current law is not posted on the KRS website.  This makes for a really sticky situation for everyone who gets arrested from now until Wednesday for Trafficking Near a School.  I believe that anyone who engages in trafficking within 1000 yards of a school between now and June 8, 2011 would have a very solid argument that the law posted by our great Commonwealth is the law that governs their actions.  Hopefully my clients will never have to find out whether I’m right.

The most significant change, I believe, is the change to KRS 431.015.  This statute previously granted the discretion to police officers to decide whether to arrest someone for a misdemeanor offense, or to give them a citation.  The change is simply massive.  It takes a good deal of discretion away from the officer, and requires that they just write a citation for a lot of non-violent, less dangerous misdemeanors.  For example, a person smoking marijuana in public cannot be arrested in Kentucky as of June 8, 2011.  The police will have to issue them a citation, just like they would for a speeding ticket.  Let’s take a look at the specific language of the KRS, because it is pretty important.  I am not going to post the entire Section, because the change we are talking about really just occurs in Subsection (1).  Pay attention to how the language “may issue” changes from the old statute to the new.

Here is the old law:

431.015   Citation for misdemeanor -- Failure to appear.
(1) A peace officer may issue a citation instead of making an arrest for a misdemeanor  committed in his presence, if there are reasonable grounds to believe that the person being cited will appear to answer the charge. The citation shall provide that the defendant shall appear within a designated time.

Here is the new law:

431.015   Citation for misdemeanor -- Arrest for certain misdemeanors -- Failure to appear.
(1) (a) KRS 431.005 to the contrary notwithstanding, and except as provided in paragraphs (b) and (c) of this subsection, a peace officer shall issue a citation instead of making an arrest for a misdemeanor committed in his or her presence, if there are reasonable grounds to believe that the person being cited will appear to answer the charge. The citation shall provide that the defendant
shall appear within a designated time.
(b) A peace officer may make an arrest instead of issuing a citation for a misdemeanor committed in his or her presence if the misdemeanor is:
1. A violation of KRS Chapter 508, 510, or 527, or KRS 189A.010;
2. An offense in which the defendant poses a risk of danger to himself, herself, or another person; or
3. An offense in which the defendant refuses to follow the peace officer's reasonable instructions.
(c) A peace officer shall make an arrest for violations of protective orders issued pursuant to KRS 403.715 to 403.785.

As a qualifier to the previous statement about how “as of June 8, 2011 a person in Kentucky cannot be arrested for smoking marijuana in public” please note that if any of the conditions present in subsections (b) or (c) are present, someone can be arrested.  Consider the following scenario:

Police Officer:  Excuse me, ma'am.  Are you smoking a marijuana cigarette?

Ma'am:  Yup.

Police Officer:  Would you kindly extinguish that marijuana cigarette?

Ma'am:  Nope.

Police Officer:  Well then, you are under arrest. (Police Officer handcuffs Ma'am and thrusts her into the back of a police cruiser) (End Scene)

The preceding dialogue is an example of how one might get arrested based on subsection (b)(3).  I knew that theatre degree would really come in handy one day.  Obviously, refusing to cease illegal activity would constitute a refusal to follow a peace officer’s reasonable instructions. 

Please keep in mind that I expressly advise against smoking marijuana in public.  It’s a really good way to establish probable cause to get you searched.  Further, if a police officer sees you sharing a joint with a friend or fellow Phish concert attendee, you can both be charged with trafficking in marijuana.  The simple act of “transferring” marijuana constitutes trafficking under KRS 218A.010, subsection (42).  And as of right now, if it is your second or subsequent offense, passing that joint can be a felony under KRS 218A.1421.

Also, for all of my marijuana reform readers – I’ve had more than a couple of people talk about how they think it would be a great idea to organize some sort of “smoking in public” day, where a bunch of people would meet up and light up in public because the law is changing.  There are a lot of perils of “trafficking” that would come along with that circus, as mentioned above.  However, I do NOT believe that organizing such an event would constitute “engaging in organized crime (as one person has expressed concern about the same), because it doesn’t rise to the level of the statute.  Here is the applicable subsection of KRS 506.120 –

"criminal syndicate" means five (5) or more persons, or, in cases of merchandise theft from a retail store for the purpose of reselling the stolen merchandise, two (2) or more persons, collaborating to promote or engage in any of the following on a continuing basis:
(a) Extortion or coercion in violation of KRS 514.080 or 521.020;
(b) Engaging in, promoting, or permitting prostitution or human trafficking in violation of KRS Chapter 529;
(c) Any theft offense as defined in KRS Chapter 514;
(d) Any gambling offense as defined in KRS 411.090, KRS Chapter 528, or Section 226 of the Constitution;
(e) Illegal trafficking in controlled substances as prohibited by KRS Chapter 218A, in intoxicating or spirituous liquor as defined in KRS Chapters 242 or 244, or in destructive devices or booby traps as defined in KRS Chapter 237;
(f) Lending at usurious interest, and enforcing repayment by illegal means in violation of KRS Chapter 360

The definition of “criminal syndicate” does not include smoking marijuana, or the organization of a marijuana related rally.  Again, none of this should be construed as advice advocating marijuana use.  Those funny little plants are certainly still illegal.

Criminal charges are serious.  If you have been charged with a drug offense in Louisville, Lexington, Frankfort, Elizabethtown, or the surrounding areas, please visit  Or you can call experienced Louisville drug charge lawyer Greg Simms at 502.473.6464.  The initial consultation is free.

Results.  As fast as the law will allow.

Questions answered in this blog post:  What are the changes in HB 463, How many feet is trafficking near a school, can a police officer arrest me for smoking marijuana in public, in Kentucky, how much weed can be a felony, Louisville drug charge lawyer; Elizabethtown drug lawyer; Elizabethtown attorney for drug possession; is a marijuana rally “organized crime”, is possession of marijuana a misdemeanor or felony.

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