Current State of Marijuana Laws in New Mexico: Many Paths to Jail Remain!

To begin, it is important to know that marijuana is still considered a Schedule I Controlled Substance under both Federal and New Mexico statutes.  Although the penalties for minor marijuana possession have been reduced over the years in New Mexico, there are still pretty serious consequences.

The many remaining and serious consequences for marijuana are reflected in the penalties for repeat offenses, DUI marijuana laws, “distribution,” and the many consequences stemming from violations of probation, parole and other conditions of release.

Schedule I Classification

Federal law under 21 U.S. Code § 812 – Schedules of controlled substances, defines Schedule I as follows:

“(A) The drug or other substance has a high potential for abuse.

(B) The drug or other substance has no currently accepted medical use in treatment in the United States.

(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.”

“the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence.”

The DEA adds that they are “the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence.”  Both the Federal and New Mexico statutes list marijuana along side of heroin, LSD, ecstasy and peyote.

Charges for Possession of Marijuana in New Mexico

NMSA §30-31-23 addresses possession. It is aptly titled “Controlled substances; possession prohibited,” reflecting the continuing classification of marijuana as a controlled substance.

Petty misdemeanor classification quickly escalates with subsequent charges

The possible penalties are laid out in paragraph B of the statute.  For a first offense possession of one ounce or less, the charges are classified as a petty misdemeanor with maximum jail time of 15 days.  The petty misdemeanor classification quickly escalates with subsequent charges.  A second offense of possession of one ounce or less is a full misdemeanor with all the potential penalties of misdemeanor (i.e. up to one year in jail).

Possession of more than one ounce is a misdemeanor and comes with stiffer penalties from the outset.  Possession of more than 8 ounces carries felony penalties for possession and probably possession with intent to distribute.  Possession of 8  ounces or more is classified as a 4th degree felony.  Distribution comes with much greater consequences.

Distribution of Marijuana 

Suffice it to say that distribution or possession with intent to distribute is treated pretty harshly under NMSA §30-31-22.  The first offense for anything less than 100 pounds is a 4th degree felony.  Subsequent offenses are 3rd degree felonies.  Distribution of more than 100 pounds is getting well beyond any argument of personal use and begins at a 3rd degree felony and moves upwards from there.

Driving Under the Influence of Marijuana

DUI marijuana is treated much the same as DWI alcohol.  However, there are some important differences.  These are related to the measurement of impairment.

Unclear and Inconsistent Standards for DUI Marijuana

These measures have not quite been worked out to any degree of precision.  In addition, as addressed in our past articles, the courts are not always consistent in the standard to be applied.

As these measures are being worked out, expect that many officers will interpret the laws in the strictest possible terms.  Keep in mind also that because there are no set standards other than “under the influence of any drug to a degree that renders the person incapable of safely driving a vehicle.”

Because there are no measurable standards, some officers will interpret this in its broadest possible scope to mean any traces of THC, despite the complete lack of scientific basis.  This means that an expert may be required.

Conditions of Release

Conditions of release will be used broadly here to cover those cases where charges are pending, probation, and parole since all have the same blanket of prohibitions on the use of illegal drugs.

As is clear from the above discussion of Schedule I classification, marijuana remains an illegal drug.  Detection of THC in random urine testing will result in a violation of conditions of release.  Any violation of a condition of release has the possibility of incarceration.

Marijuana is particularly problematic, even for the infrequent user, since it can be detected for weeks after use.  Under conditions of release, there is no requirement of impairment. The only issue is whether it has been used or not, and this would be evident and difficult to refute following a positive drug test.

In short, marijuana can land you in jail, even on completely unrelated charges of any kind where conditions of release are imposed.  It would most definitely include pending charges for marijuana, even the petty misdemeanor variety.  As such, even the petty misdemeanor can quickly escalate into jail time.

In Conclusion

Several different paths to jail via marijuana

Do not be lured into believing that marijuana possession or use will not be treated harshly.  There are several different paths to jail by way of marijuana use.  Even beyond that, there are some pretty serious collateral (non-penal) consequences for marijuana-related convictions.

If you have been charged, no matter how petty the charge may seem, it is advisable to seek the guidance of an attorney.  Treating these charges as trivial could be quite disastrous.

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