Impact of other States Legalizing Recreational Marijuana in Indiana

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Impact of other States Legalizing Recreational Marijuana in Indiana

On Tuesday November 8, 2018, Voters in the State of Michigan approved the legalization of recreational marijuana.  While the sales side of things will take some time for the State of Michigan to get set up, there are a number of potential collateral criminal issues that Hoosiers need to be aware of should you decide to take advantage of the legalization during a trip to Michigan or any other similar state.

Marijuana is illegal in the State of Indiana

First and foremost, marijuana is illegal in the State of Indiana and cannot be brought back from any state where legal.  You cannot possess it in any form, in any amount, without potentially subjecting yourself to criminal charges being filed against you.  Possession of Marijuana is a Class B Misdemeanor under Indiana Law punishable up to 180-days in jail and a fine of up to $1,000.  If you have a prior conviction for possession of marijuana, it is enhanced to a Class A Misdemeanor that carries a potential penalty range of up to 365-days in jail and a fine of up to $5,000.  The potential charges can increase should you have a sizeable amount of marijuana or if the marijuana is packaged in a certain way that suggests “dealing” or you intend to sell.  These typically are felony offenses.

Marijuana is Illegal under Federal Law

Secondly, marijuana is still considered a controlled substance and illegal under Federal Law.  Should you choose to travel with marijuana from a legalized state, such as Michigan, into Indiana, you are subjecting yourself to potential Federal charges as the U.S. Government has jurisdiction when things cross state borders under the legal principle of interstate commerce.  The U.S. Department of Justice has recently made clear that they will not turn a blind-eye to states legalizing marijuana, though the extent to which they will enforce these statements or otherwise bring charges is unclear.  However, you’re well advised to be aware of the potential for charges in Federal Court.

It Can Impact your Blood Tests in an Indiana OWI

Indiana is known as a “Metabolite State” for purposes of Operating a Vehicle While Intoxicated or OWI charges.  This means if a blood draw for an OWI is performed and the results show that there are “leftovers” (or metabolites in scientific language) of a foreign substance with a traceable drug-based chemistry, that person can be subject to the per se charge for OWI with marijuana metabolites under IC 9-30-5-1; a Class C Misdemeanor that is subject to 60 days in jail, a fine of up to $500.00, and a potential license suspension from 0 to 730 days years depending on your history and/or if you refuse a chemical test!  This can be true even if the metabolite in your body is the inactive compound (or the type that would not cause intoxication despite its presence in your system).   That means potentially you can legally use marijuana in Michigan, be stopped in Indiana days to weeks later, be suspected of intoxicated driving (whether you are at that time or not) and face criminal penalties for the marijuana metabolite in your blood.  To most people this seems ridiculous, but it is in fact law in Indiana.

It Can Lead to an Intrusive Search of your Vehicle

Although only issued as a “memorandum decision” (or one that has no precedential value for attorneys to argue as authority in court), the Indiana Court of Appeals in Toschlog v. State, 96 N.E.3d 663 (Ind.Ct.App. 2018) found no Federal or State constitutional violation for law enforcement to search a vehicle when the requisite reasonable suspicion is based solely upon (meaning no other signs of possession or consumption of marijuana or any other criminal activity) an individual’s confession that at some point in the past, they possessed marijuana in the vehicle while in a state that it’s legal.  The Indiana Supreme Court denied transfer on the issue (meaning it has not been found to be unconstitutional at this time), so while it’s unclear the extent that matters like this (i.e. being upfront with law enforcement that you had marijuana while in Michigan) will play out, it’s important to know that as of right now, it could lead to an intrusive search of your person and/or vehicle.

As more and more states legalize marijuana for medicinal or recreational use, Hoosiers need to be careful and cautious to avoid any inadvertent potential criminal consequences.  This blog can only cover a few of the bigger issues and many more will certainly come to fruition as time goes on.

We Defend Against Criminal Charges

If you or somebody you know has recently been convicted of a crime or has questions about the criminal case process, contact the experienced criminal defense attorneys at Banks 7 Brower, LLC.  We are available at all times by calling us at (317) 870-0019 or by emailing