Image of marijuana leaves to spell 420 to show how Indiana marijuana defense lawyer Josiah Swinney protect your rights.

An Indiana Marijuana Defense Lawyer Explains How to Beat a Possession Charge

Working with an Indiana marijuana defense lawyer is critical to protect your rights if you are charged with possession—even though the stigma associated with marijuana use has waned to some extent. Whether you’re in Hamilton County, the surrounding area, or even all the way down in DuBois County, you need reliable counsel to keep even a relatively minor offense from impacting your future.

Indiana marijuana defense attorney Josiah Swinney at Camden and Meridew, P.C. is just such an attorney. Here, he explains the essential proof necessary under Indiana marijuana laws to support a conviction for possession of marijuana.

Indiana Marijuana Laws Explained by an Indiana Marijuana Defense Lawyer

Indiana Code § 35-48-1-19 defines marijuana as any part of a Cannabis plant, including seeds, resin, oil, or a derivative, but it does not include hemp. Hemp, which has a similar appearance to marijuana, is defined under Indiana Code § 15-15-13-6 as any part of the specific type of Cannabis plant that contains a concentration of no more than .3 percent of delta-9-THC.

Possession of marijuana—not hemp—is prohibited under Indiana Code § 35-48-4-11. To support a conviction for possession of marijuana, the State must prove beyond a reasonable doubt both possession of the substance and that the substance in question is, in fact, marijuana.

Was It Actually Hemp? Changing Case Law for Marijuana Charges

Because hemp looks a lot like marijuana, visual inspection of the substance would not seem to be sufficient to support a conviction. Prior to 2022, case law allowed a person of “sufficient experience” to identify marijuana by visual inspection alone as sufficient to support a conviction although more definite evidence, such as through chemical analysis, was preferred. This changed in 2022.

In Rojo v. State, the Court of Appeals held that testimony of a police officer simply testifying that he knew the substance seized from the defendant was marijuana due to the substance’s appearance and smell was insufficient to establish beyond a reasonable doubt that the substance was actually illegal marijuana.

What does this mean? An officer cannot just testify that a substance is marijuana because it looks like marijuana. In considering this same issue in Fedij v. State, another panel of the Court of Appeals also held in 2022 that such opinion evidence, without more, was insufficient to sustain a conviction for possession of marijuana.

The Seriousness of a Possession of Marijuana Conviction

Conviction for possession of marijuana in Indiana can have serious consequences, even as a misdemeanor. Possession of even a minimal amount of marijuana is a Class B misdemeanor. Under Indiana Code § 35-50-3-3, the sentence for a Class B misdemeanor is incarceration for at least 180 days and a fine of no more than $1,000.

If you have a prior drug offense conviction or you were in possession of marijuana packaged to appear to be a low THC extract or legal version of Cannabis, the offense rises to a Class A misdemeanor. Indiana Code § 35-50-3-2 sets the sentence for such offenses at incarceration for up to one year and a fine of up to $5,000.

At its highest level, possession of marijuana may be a Level 6 felony. Under Indiana Code § 35-50-2-7, the sentence imposed could be incarceration between six months and two and one-half years with a fine of up to $10,000. The period of incarceration could increase depending on the defendant’s prior criminal record.

An Indiana Marijuana Defense Lawyer Who Can Help if You’re Charged with Possession of Marijuana

Whether you’re facing a possession of marijuana charge in Hamilton County, Dubois County, or anywhere in between, the law requires the State to prove that the substance at issue isn’t merely hemp or low-THC hemp extract.

Whether a substance qualifies as illegal marijuana hinges on definitive proof—not merely observation using physical senses—that the substance has a delta-9-THC concentration of above .3 percent. Below this threshold, substances may still look like marijuana when they are not, which means such substances are not illegal.

If you’re facing possession of marijuana charges in Indiana, you need an experienced criminal defense attorney as early in the process as possible. Reach out to Indiana marijuana defense lawyer Josiah Swinney at Camden and Meridew, P.C. to discuss how he can help with your marijuana possession case. For a consultation, please call 317-770-0000 or complete our online contact form.


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