Failed to Pay a $100 Marijuana Ticket or Show for the Appeal? at Least 1 Massachusetts Court May Be Charging No-Pays/No-Shows Under Mgl C.94c Sec.34l (Possession of over 1 Ounce)
As many of you may know, several years ago Massachusetts decriminalized the possession of 1 ounce or less of marijuana. It is now punishable by a civil fine of only $100.00 (See Massachusetts General Laws, Chapter 94C, Section 32L). Since enacted, the decriminalized marijuana possession statute has resulted in some interesting discussions and court cases in the Commonwealth of Massachusetts including, for example, whether the odor of marijuana can still serve as the basis for the warrantless search of an automobile or to issue an exit order to a passenger (See Commonwealth v. Cruz, 459 Mass. 459 (2011)) and the disposition of the confiscated marijuana (destroyed, no lab testing) given the right to appeal the ticket and the resultant lack proof that substance was marijuana at the hearing.
However, a new discussion (and case) has emerged: Apparently, if you appeal your $100 ticket and fail to appear, or fail to pay the $100 ticket at all, the Commonwealth of Massachusetts is charging such civil ‘offenders’ (at least 1, anyway) pursuant to MGL Chapter 94C, Section 34 (i.e. for CRIMINAL Possession of 1 Ounce or MORE of Marijuana). This seems to be happening because there is no procedure in place to enforce payment of the $100.00 fine, and no criminal possession statute for possession of 1 ounce or less.
Regardless of the reasoning behind the practice, it is a blatant violation of due process and in direct violation of MGL Chapter 94C, Section 32L as well as the will of the citizens of Massachusetts who overwhelmingly supported decriminalizing the possession of 1 ounce or less of marijuana. The Commonwealth is subjecting individuals to criminal penalties where the statute specifically provides that “possession of one ounce or less of marijuana shall only be a civil offense” (emphasis added) and an offender shall not be subject “to any other form of criminal or civil punishment or disqualification”.
Moreover, those offenders ultimately arraigned on charges of Possession of More than 1 Ounce of Marijuana (MGL c.94C s.32L) will be burdened with a CORI record entry indicating that the individual was charged with the criminal possession of a large amount of marijuana. Contrary to the clear intent of the decriminalized marijuana possession statute, these individuals could be wrongfully ineligible for student loans, public housing, public financial assistance including unemployment benefits and the charges could affect the individual’s opportunity to serve as a foster parent or adoptive parent (See MGL c.94C, s.32L). It is tragic to think of how many people’s lives may be detrimentally altered because they were charged criminally in this way for something that is only supposed to be a civil infraction – and they may not even discover the problem until it’s too late. Furthermore, it is difficult to fathom how there could be sufficient probable cause to justify the issuance of such a criminal charge considering that an ‘offender’ would not have received a $100 ticket in the first place if the amount of marijuana were greater than 1 ounce!
After researching this issue, it seems that problem stems from the fact that the Commonwealth of Massachusetts does not have a procedure in place to deal with a situation where a marijuana-ticket recipient fails to pay the $100 or does not appear at an appeal hearing and then also fails to pay the fine. The closest procedural solution seems to be MGL Chapter 40, Section 21D, and this is the statute which serves as the basis for the current practice of charging a civil ‘offender’ with the crime of possession of over 1 ounce of marijuana (pursuant to MGL c.94C sec.34). MGL c.40, sec.21D provides that a complaint may be issued, but its application to the civil offense here (MGL c.94C sec.32L) is entirely misplaced and unlawful.
MGL c.40 sec.21D only applies to city or town ordinances, by-laws, rules or regulations (like local curfews) (in addition to a handful of low-level state-wide civil infractions – MGL c.85, s.11C; MGL c.90, 18A; MGL c.140, s.173A; MGL c.270, s.16A). In addition, MGL c.40, sec.21D is inapplicable here because it requires that the ordinance or by-law expressly indicate that the offender may appear before a district court clerk for a hearing “as an alternative to criminal proceedings”. First, the legislation at issue here (MGL c.94C, sec.32L) is a state statute. Second, this state statute expressly states that there “shall only be a civil offense”, and expressly eliminates all criminal penalties as an option for the Commonwealth to pursue an offender of the statute or enforce payment of the $100 fine.
Despite all of this support for prohibiting the application of MGL c.40 sec.21D to no-pays or appeal-hearing-no-shows, at least one court in Massachusetts has issued a criminal complaint for a violation of MGL c.94C, 34 (Possession of Over 1 Ounce of Marijuana) as the next step in the penal process to punish the ‘offender’ and/or enforce payment of the $100 fine for the civil infraction of marijuana possession.
The Legislature should act quickly to resolve this gap in the procedure for handling this civil infraction and no-payment of the $100 fine. Until then, ‘offenders’ will continue to be charged for a crime they clearly did not commit and for which there is absolutely no basis, and the criminal charge will follow the offender for life, inhibiting his or her ability to obtain student loans, public housing, unemployment benefits or become a foster parent.
UPDATE: After originally drafting this TJL Law-Blog, a hearing was held on a Motion to Dismiss and Expunge filed by The Jacobs Law LLC on behalf of our client. After a brief, but interesting oral argument, the Honorable Judge dismissed the charge for Possession of Over 1 OZ of Marijuana, but denied the request to expunge the charge from the client’s record, and assessed a $50 fine for failure to appear at the originally scheduled arraignment (which was on the possession charge that never should have been brought in the first place). Nevertheless, it seems this issue – couched in terms of a ‘criminal penalty’ where the statute expressly states the “only” penalty shall be a civil one, and no other civil or criminal penalties shall apply – is ripe for an appeal — so stay-tuned for future developments. Of particular note, too, is the possibility that the charge in this case was a ‘mistake’ – which is entirely plausible. However, another counsel informed me that he was aware of other ‘offenders’ who have experienced similar action, so the jury is still out on that issue it seems.
If you have been charged with Possession of Over 1 Ounce of Marijuana after originally receiving a $100.00 ticket, you should contact an attorney immediately – whether or not your case has been disposed of, as it could have the serious long-term affects referenced above. An attorney at The Jacobs Law, LLC is available to assist you to handle this type of criminal action including any such case that has already been disposed of. Contact The Jacobs Law, LLC by email at TJacobs@TheJacobsLaw.com or phone at 800-652-4783.