The First Day of Marijuana Decriminalization in DC

Starting today, possession of one ounce or less of marijuana is no longer a crime in the District of Columbia. That does not mean it is legal, merely that it is a civil offense punishable by a $25 fine and confiscation of any marijuana or paraphernalia in public view. In fact, this civil fine is issued using the same Notice of Violation (NOV) ticket DC Metro police officers use to issue “littering” citations. Don’t believe me? See the document on the left.

The Law Behind The Change

Okay, now it’s time for us to roll up our sleeves and look at the legal authority for these changes. The Marijuana Possession Decriminalization Amendment Act of 2014, which was passed by the DC Council this spring, takes effect today after having survived a 60-day period of congressional review. As the Washington Post noted in March, it was not certain that the bill would make through the congressional review period because of the controversial nature of such a law.

So what exactly does the Marijuana Possession Decriminalization Amendment Act of 2014 do? First and foremost, it makes the possession of one ounce or less of marijuana a civil violation. In doing so, it amends all other DC laws that say otherwise, including the DC Uniform Controlled Substances Act (beginning at DC Code Section 48-904.01). But just because possession of up to an ounce is no longer a crime does not mean the city has revoked its war on drugs, at least not totally. This law does not change the way other drugs and controlled substances are treated. This law also does not mean people can smoke marijuana in public. In fact, the law explicitly states that consumption of marijuana in public places is a criminal misdemeanor, punishable by up to 60 days in jail and a fine of up to $500. The law isn’t too vague about what constitutes a public place either, defining it as “any of the following places:

  • A street alley, park, sidewalk, or parking area;
  • A vehicle in or upon any street, alley, park, or parking area, or;
  • Any place to which the public is invited.”

The last of those categories includes establishments such as bars, restaurants, clubs, and concert venues. Also, we shouldn’t have to point this out, but when the law decriminalizes possession of one ounce or less, that does not include larger quantities, like, say, two ounces.

An equally monumental change has nothing to do with possession at all, but with warrantless searches. As those of us familiar with law enforcement practices know, one of the most common ways police officers justify warrantless searches, which require reasonable articulable suspicion, is by asserting that they smelled marijuana. Reasonable articulable suspicion requires the officers to justify the search with a reason they can articulate, as opposed to a hunch. Smelling marijuana is a convenient reason given for this purpose because it is hard to challenge in court—current technology offers no physical evidence of what constitutes a smell.

The law which takes effect today goes a long way toward ending this practice by law enforcement officers. It expressly states that the following observations cannot constitute reasonable articulable suspicion, individually or in combination with each other:

  • The smell of marijuana or burnt marijuana,
  • The possession or suspicion of possession of marijuana,
  • The possession of marijuana in multiple containers,
  • The possession of marijuana “in proximity to any amount of cash or currency.” See section 14(a) of the Marijuana Possession Decriminalization Amendment Act of 2014.

Law enforcement officers will not be able to base reasonable articulable suspicion on these factors, except for one exception. The law states that this limitation on reasonable articulable suspicion will not apply in situations where law enforcement officers have pulled someone over for a suspected DUI, or where they are otherwise investigating whether a driver is impaired by alcohol, drugs, or any combination thereof. This means that police officers may be able to circumvent this restriction, albeit to a limited extent, by investigating drivers for impairment at every traffic stop.

For more information, look at the DC Metropolitan Police Department’s Special Order informing law enforcement officers how they should act going forward. Also, the Washington Post has done an excellent job of explaining the changes going into effect this Thursday.

Where this Law Does Not Apply

This law does not change federal law, nor does it change the how federal police agencies enforce the law, including the U.S. Park Police, the Secret Service, and the Capitol Police. These federal police agencies patrol a number of areas in DC. In other words, marijuana may not feel so decriminalized in DC if you are arrested by federal officers on the National Mall, near the Capitol Building, or near the White House.