The legalization of marijuana continues to spread across the United States. Although possession of marijuana is still illegal in Indiana, all of Indiana’s neighboring states have legalized marijuana either recreationally or medically. In fact, at the time of this writing, only 6 states currently have no legal avenue in which to consume THC, the mind altering ingredient in marijuana.
With the widespread legalization of marijuana, there has developed a massive interest in growing and cultivating marijuana plants. The science behind growing different strains of marijuana, and the effect those strains have on the mind, has fascinated a growing number of marijuana enthusiasts. Much like the home brew craze that emerged in the early 2010’s with regards to craft beer, “home grow” operations are a budding hobby for those that enjoy cultivating their own marijuana.
In Illinois, for example, residents are allowed to grow up to five cannabis plants on their own property if the resident is at least 21 years old, the marijuana is grown out of public view, and the marijuana is in an area that is locked away from anyone under the age of 21. In Michigan, residents can grow up to 12 marijuana plants on their own property, so long as the marijuana plants are not visible from a public place.
So, what are the potential ramifications for growing marijuana plants in Indiana? The simplest explanation is found in Indiana’s possession of marijuana statute.
IC 35-48-4-11 states that:
A person who:
- knowingly or intentionally possesses (pure or adulterated) marijuana, hash oil, hashish or salvia;
- knowingly or intentionally grows or cultivates marijuana; OR
- knowing that marijuana is growing on the person’s premises, fails to destroy the marijuana plants;
commits possession of marijuana, hash oil, hashish, or salvia, a class B misdemeanor.
However, the class B misdemeanor for possession of marijuana can be enhanced to a class A misdemeanor if the person has a prior conviction for a drug offense. The offense becomes a level 6 felony if the person has both a prior conviction for a drug offense and the person possesses at least 30 grams of marijuana.
While a class B misdemeanor might not seem like a huge risk to someone wanting to explore the hobby of growing their own marijuana, a look into Indiana’s dealing marijuana statute reveals an additional problem.
IC 35-48-4-10 states that:
A person who:
- knowingly or intentionally:
- manufactures;
- finances the manufacture of;
- delivers, OR
- finances the delivery of;
Marijuana, hash oil, hashish, or salvia, pure or adulterated; OR
- possesses, with intent to:
- manufacture;
- finance the manufacture of;
- deliver; OR
- finance the delivery of;
marijuana, hash oil, hashish, or salvia, pure or adulterated, commits dealing in marijuana, hash oil, hashish, or salvia, a class A misdemeanor.
The offense can be enhanced to a level 6 felony if the person has a prior conviction for a drug offense and the amount of marijuana is less than 30 grams. The offense can also be enhanced to a level 6 felony if the person has no prior drug offense conviction, but the amount of marijuana is over 30 grams but less than 10 pounds.
If the person has a prior drug offense conviction and the amount of marijuana is over 30 grams but less than 10 pounds, the offense becomes a level 5 felony. Likewise, if the person has no prior drug offense conviction and the amount of marijuana is over 10 pounds, the offense is a level 5 felony.
Clearly, growing marijuana plants falls under the “manufacture” portion of the dealing statute. What does the term “manufacture” mean from a legal standpoint?
IC 35-48-1-18(2)(A) defines “manufacture” as:
“The preparation, compounding, conversion, OR processing of marijuana, hashish, or hash oil, either directly or indirectly by extraction from substances of natural origin, independently by means of a chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the marijuana, hashish, or hash oil, or labeling or relabeling of its container.”
To clarify, in Indiana, a person that grows their own marijuana can be charged with and prosecuted for dealing marijuana with no independent evidence of actually dealing marijuana. Per the dealing marijuana statute, the state is not required to prove that the marijuana was actually being sold. As the dealing statute is currently written, if an individual is growing their own marijuana, and the amount is over 10 pounds, the individual can be charged with dealing marijuana as a level 5 felony. If the amount being grown is over 30 grams but less than ten pounds, the individual can be charged with dealing marijuana as a level 6 felony.
Are you or someone you love facing a possession or dealing marijuana charge for growing marijuana? Do you think the Indiana dealing marijuana statute is outdated and unfair? Need a former prosecutor to fight back against the state? Contact the experienced attorneys at Banks and Brower anytime at info@banksbrower.com or at (317) 870-0019.