Minor Drug Violations

Minor Drug Violations

The GOAL office has begun to receive requests for information regarding past minor drug violations for persons applying for their License to Carry (LTC). Theses inquiries are a result of the law passed in 2008, Chapter 387 of the Acts of 2008 An Act Establishing a Sensible State Marijuana Policy.

Basically, this law made possession of one ounce or less of marijuana a civil offense rather than a criminal offense and punishable by a one hundred dollar fine. The most common question we receive is will this new law downgrading the offense help those who have been disqualified for such past offenses. The answer is, we simply don’t know yet.

The problem with determining an answer is that there are now two conflicting laws. The first is of course the law regarding the LTC, Chapter 140, Section 131. Within that section is a list of permanent disqualifiers among them is: “a violation of any law regulating the use, possession or sale of controlled substances as defined in section 1 of chapter 94C” This particular disqualifier is not even reviewable by the Firearm Licensing Review Board established in GOAL’s 2004 reform bill. The key phrase in the Section is “a violation of any law” not just criminal law, but here is where it gets interesting.

Keep in mind that the gun law was established in 1998. Ten years later the state passes the marijuana policy law. In this new law it specifically states, several times, that offenders shall not be subject to any other sanctions or disqualifications other than the fine. (See the underlined below.) The law even goes so far as to prohibit listing such offenses in the Criminal Offender Record Information system.

So the question is which law prevails? We have a 1998 law that states any violation is a disqualifier and we now have a 2008 law that states this particular offense cannot be used for disqualification of any kind. There are two schools of legal thought here.

The first is that in some cases courts will side with the more specific law.

The second is that courts will go with the most recent law as it more closely represents the latest will of the people.

Unfortunately, we may have to wait for a court case to decide the matter as we can no longer rely on the state administration to accurately advise us on the law. Sadly, we have not had much luck in the State’s highest court understanding the current gun laws either.

As a side note, we do have great concerns on how this new law may affect the next generation of gun owners. If indeed the disqualifier in Section 131 eventually prevails and is maintained, it could cause serious issues down the road. With the decriminalizing of the minor possession, young people may not take it as a serious offense and later on realize that their civil right to keep and bear arms has been taken away. Regardless of the arguments for or against decriminalizing, this is yet another mess caused by the Massachusetts gun laws that needs to fixed before more harm is done.

Chapter 94C, Section 32L. Notwithstanding any general or special law to the contrary, possession of one ounce or less of marihuana shall only be a civil offense, subjecting an offender who is eighteen years of age or older to a civil penalty of one hundred dollars and forfeiture of the marihuana, but not to any other form of criminal or civil punishment or disqualification. An offender under the age of eighteen shall be subject to the same forfeiture and civil penalty provisions, provided he or she completes a drug awareness program which meets the criteria set forth in Section 32M of this Chapter. The parents or legal guardian of any offender under the age of eighteen shall be notified in accordance with Section 32N of this Chapter of the offense and the availability of a drug awareness program and community service option. If an offender under the age of eighteen fails within one year of the offense to complete both a drug awareness program and the required community service, the civil penalty may be increased pursuant to Section 32N of this Chapter to one thousand dollars and the offender and his or her parents shall be jointly and severally liable to pay that amount.
Except as specifically provided in ″An Act Establishing A Sensible State Marihuana Policy,″ neither the Commonwealth nor any of its political subdivisions or their respective agencies, authorities or instrumentalities may impose any form of penalty, sanction or disqualification on an offender for possessing an ounce or less of marihuana. By way of illustration rather than limitation, possession of one ounce or less of marihuana shall not provide a basis to deny an offender student financial aid, public housing or any form of public financial assistance including unemployment benefits, to deny the right to operate a motor vehicle or to disqualify an offender from serving as a foster parent or adoptive parent. Information concerning the offense of possession of one ounce or less of marihuana shall not be deemed ″criminal offender record information,″ ″evaluative information,″ or ″intelligence information″ as those terms are defined in Section 167 of Chapter 6 of the General Laws and shall not be recorded in the Criminal Offender Record Information system.
As used herein, ″possession of one ounce or less of marihuana″ includes possession of one ounce or less of marihuana or tetrahydrocannabinol and having cannabinoids or cannibinoid metabolites in the urine, blood, saliva, sweat, hair, fingernails, toe nails or other tissue or fluid of the human body. Nothing contained herein shall be construed to repeal or modify existing laws, ordinances or bylaws, regulations, personnel practices or policies concerning the operation of motor vehicles or other actions taken while under the influence of marihuana or tetrahydrocannabinol, laws concerning the unlawful possession of prescription forms of marihuana or tetrahydrocannabinol such as Marinol, possession of more than one ounce of marihuana or tetrahydrocannabinol, or selling, manufacturing or trafficking in marihuana or tetrahydrocannabinol. Nothing contained herein shall prohibit a political subdivision of the Commonwealth from enacting ordinances or bylaws regulating or prohibiting the consumption of marihuana or tetrahydrocannabinol in public places and providing for additional penalties for the public use of marihuana or tetrahydrocannabinol.


 

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