Indiana Code Title 35. Criminal Law and Procedure § 35-48-4-11
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(1) knowingly or intentionally possesses (pure or adulterated) marijuana, hash oil, hashish, or salvia;
(2) knowingly or intentionally grows or cultivates marijuana; or
(3) 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, except as provided in subsections (b) through (c).
(b) The offense described in subsection (a) is a Class A misdemeanor if the person has a prior conviction for a drug offense.
(c) The offense described in subsection (a) is a Level 6 felony if:
(1) the person has a prior conviction for a drug offense; and
(2) the person possesses:
(A) at least thirty (30) grams of marijuana; or
(B) at least five (5) grams of hash oil, hashish, or salvia.
(d) It is a defense to a prosecution under subsection (a)(1) based on the possession of a substance containing cannabidiol that:
(1) the person is a patient or caregiver registered under IC 16-42-28.6 for the use of a substance containing cannabidiol;
(2) the person reasonably believed that the substance possessed by the person was a substance containing cannabidiol; and
(3) the substance containing cannabidiol is packaged in a container labeled with the origin, volume, and concentration by weight of total THC, including its precursors and derivatives, and cannabidiol.
(e) It is a defense to a prosecution under this section based on the possession of a substance containing cannabidiol that:
(1) the substance containing cannabidiol has been approved by the federal Food and Drug Administration or the federal Drug Enforcement Agency as a prescription drug; and
(2) the substance was prescribed and dispensed in accordance with the federal approval described in subdivision (1).Indiana Title 35. Criminal Law and Procedure Section 35-48-4-11. Read the code on FindLaw
Up In Smoke: A look at Indiana’s path to legalizing marijuana
Indiana State Sen. Karen Tallian remembers the moment that sparked her interest in marijuana legislation.
About a decade ago, Tallian represented a teenager right out of high school who was charged with marijuana possession when a party was busted by the police. The teen took a plea deal, complied with its conditions, and walked away with a criminal record. That conviction followed the young woman.
Four years later, she earned her bachelor’s degree and was student teaching.The superintendent, after finding out about the conviction, told the young woman to find a new career.
“She called me in tears. That is so wrong and so unnecessary,” Tallian said. “If that’s one story, I have 15 more. Those kinds of experiences were really what pushed me to say ‘This is a colossal waste of time and we don’t need to be doing this.’”
Indiana is now surrounded by states that have legalized marijuana. Illinois and Michigan have legalized use of recreational marijuana and Ohio and Kentucky legalized medical use, with Kentucky’s vote just finalized on Feb. 20.
Tallian, D-Ogden Dunes, who has authored, co-authored or supported medical or recreational marijuana legalization and/or decriminalization for around a decade, said Indiana legislators need to face the music.
Surrounded on all sides
Michigan and Illinois state law allows personal, recreational use of marijuana. Any possession of marijuana in Indiana is a Class A misdemeanor, and can result in 180 days in jail with a maximum fine of $1,000
Tallian said she’s been slowly chipping away at cannabis restrictions, and isn’t giving up anytime soon.
“I’ve offered every kind of discussion you could possibly think of. (Legislators) all know that they’re going to have to have this conversation …” she said. “The states are falling in line, I certainly hope that we’re not last. They know they have to have this conversation, but they just don’t want to.”
State Rep. Mike Karickhoff, R-Kokomo, said he’s not afraid of the topic. He’s said he’s open-minded but cautious when it comes to changing marijuana legislation.
“Our governor is very resistant to this. I don’t think we should (be next) but I think quite frankly there is a movement toward allowing medicinal marijuana, especially with what we’ve done with CBD oil,” Karickhoff said. “The argument is if we use it medicinally, then we’ll use it recreationally. . But it’s still illegal federally, and Gov. Holcomb has been very firm he’s not going to support any legislation until the federal government legalizes it.”
Both Karickhoff and State Rep. Tony Cook, R-Cicero, supported House Resolution 2 in 2018, “urging the legislative council to assign the topic of medical marijuana to the interim study committee on public health, behavioral health, and human services during the 2018 interim.” The resolution passed unanimously. Karickhoff said he hasn’t seen the results of the study.
Cook, who referred to himself as “old school” said he needs to see data to firm up a stance on legislation.
Additionally, Cook is concerned with the public safety aspect of legalizing. He wants to see solid research on traffic accidents and crime rates in states that have legalized as well.
William Henry, chairman of the Indiana chapter of National Organization for the Reform of Marijuana Laws (INORMAL), said polls conducted both by INORMAL and state legislators in 2019 indicated that majorities of up to 90% of Hoosiers approve of medical marijuana, and approximately 80% approve of recreational use. Polls that Tallian conducted showed similar results.
“The governor doesn’t dictate anything; the state legislature has the power to override the governor at any time,” he said. “If the state legislature was truly representing their people as these polls are showing, then they would rather do the right thing rather than abide by whatever the governor says.”
Holcomb couldn’t be reached for comment but a list of questions were sent to his press secretary, Rachel Hoffmeyer. Hoffmeyer referred The Kokomo Tribune to excerpts of a recent interview with another news outlet.
“I can’t (support legalization of medical marijuana) at this time because I’ve taken a couple oaths in my life,” said Holcomb. “I’ve raised my hand and sworn to uphold the law, this being one of them. It is illegal. It is a controlled substance. It is illegal per federal administration. The law needs to change there first.”
Law enforcement on legalization
Claims that people who are charged with possession of marijuana sit in jail is, for the most part, false when it comes to Howard County, Assistant Howard County Jail Commander Lt. Justin Christmas said.
“As far as inmates being held (in jail) on charges solely of possession of marijuana, I definitely wouldn’t say there’s a lot,” he said. “We don’t have a lot of inmates who spend a lot of time in jail specifically on possession of marijuana.”
Curious about an exact number of arrests with charges of possession, Christmas started looking at records beginning on Jan. 1. As of Feb. 25, 10 people were arrested for possession of marijuana and other charges. He said an example of those charges included two counts of possession of marijuana and possession of a controlled substance, syringes and paraphernalia.
One man, who was arrested Feb. 23 solely on possession of marijuana, was in jail on Feb. 25. He was the only instance of an arrest for a sole marijuana charge in 2020 to date.
“I’m not a marijuana fan, not to say I’m against anything,” said Christmas. “It’s just not my thing. Obviously, if there are professionals who think that any type of medication is important or significant, I would support that. Who am I to say it’s not?”
As far as personal use, Christmas said he doesn’t have much of an opinion except he chooses not to use marijuana and would prefer his children not use it. He said if the plant was legalized, he’d comply with those laws.
A medicinal herb
Cook said part of the reason he is open to legalizing marijuana for medicinal use is because of family members in the health sector.
“I have three family members who are doctors and the use for chronic pain and for hospice, many times they feel they might prescribe that type of medication for those people,” he said. “I say that gently because it’s still, federally, a crime.”
Dr. Andy Chambers, a psychiatrist at Indiana University Health in Indianapolis, pointed out that THC, tetrahydrocannabinol, a crystalline compound that is the main active ingredient of cannabis, is legal in prescription pill form.
The medication is called Marinol. It is used to treat chemotherapy-induced nausea and vomiting, and was approved by the Food and Drug Administration (FDA) in 1985, according to the FDA.
“We’ve been able to prescribe THC for decades,” Chambers said. “I’ve seen it used legitimately. It’s important to know. It’s been around and totally legal and condoned by every state and federal government.”
There is no solid evidence showing that smoking the plant is more effective than the pill. Additionally, only preliminary results show that THC might treat chronic pain, he said.
Studies show that for about a third of chronic pain patients, pain was decreased by about 30% while using marijuana, according to the National Institutes of Health; 26% of patients saw a similar decrease when using a placebo.
“The problem where medical marijuana is legal is those legalizations have been made outside the evidence base. There are lots of doctors who prescribe it around the country,” Chambers said. “For me, I can’t do that because if you do it for that drug, where do you draw the line? Am I going to start recommending people implant marbles in their head because that’s what’s popular?”
When treating psychiatric disorders, the field in which Chambers has worked for about 20 years, he said marijuana is not a good fit for treatment.
“When we’re talking about palliative reasons, like hospice, I’m not concerned. When it is prescribed for PTSD or depression, that concerns me. This is not only not supported, the evidence is not consistent with it.”
Despite this, marijuana is still less dangerous than opiates, amphetamines and benzodiazepines. Chambers argued that this brings a better argument to legalize recreational use than medical.
Chambers said debates surrounding marijuana fall into extremes, that legalizing marijuana or its use as medication is either all good or all bad. Chambers said he’d like people to see both sides of the debate.
In spite of this, Chamber was steadfast that criminalizing marijuana is a damaging practice.
“Criminalizing marijuana is dangerous,” he said. “Arresting and jailing people for marijuana is far more harmful than the effects of marijuana are. So how is that proportionate justice?
“In a strange sort of way, the medical marijuana argument is probably mostly not real,” he said. “But on the other hand, criminalizing the drug when it’s used recreationally is also a problem.”
INORMAL’s Henry said that merely moving toward decriminalization in Indiana would allow people who are currently benefiting from using marijuana medicinally to not be treated like a criminal. He questioned the rationale of the current laws’ morality.
“Just because a law exists, it does not mean that law is actually moral or right,” he said.
While Henry used civil rights laws as an example to demonstrate his point, Dr. Chambers brought up 1920s prohibition.
“The truth is yes, it can be addictive, and yes, it can be used rarely with no real consequences, kind of like alcohol,” he said. “Which, we realized in the ‘20s we cannot criminalize two-thirds of the population with an amendment. People ignored it, organized crime took off and it’s just not workable.Surrounded by states that have legalized marijuana, Indiana is grappling with how to handle calls for medicinal and recreational legalization. ]]>