Possession of Marijuana in Indiana

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possession of marijuana in indiana


Notwithstanding the current legislation regarding marijuana, possession of marijuana is a crime in Indiana. If you find yourself charged with possession of marijuana in Indiana, you may face serious penalties.

What charges could you be facing?

In Indiana, “(a) A person who: (1) knowingly or intentionally possesses (pure or adulterated) marijuana… [commits] a Class B misdemeanor…” Ind. Code § 35-48-4-11 (2018). However, if a person has a prior drug offense, the Class B misdemeanor is elevated to a Class A misdemeanor. If a person has a prior drug conviction or “possesses at least thirty (30) grams of marijuana,” the class B misdemeanor becomes a Level 6 Felony. Ind. Code § 35-48-4-11 (2018). The punishments for possession are addressed below in turn:


  • Class B misdemeanor: is a fine of not more than $1000 and imprisonment of not more than 180 days. Ind. Code § 35-50-3-3 (2018);
  • Class A misdemeanor: is a fine of not more than $5000 and imprisonment for not more than one 1 year. Ind. Code § 35-50-3-2 (2018);
  • Level 6 Felony: is a fine of not more than $10,000 and imprisonment for between 6 months and 2 and 1/2 years, with an advisory sentence of one year. Ind. Code § 35-50-2-7 (2018).

What next?

If you receive a summons or are arrested, you must appear in court. Your first appearance will be an initial hearing, where you will hear the charges against you along with your constitutional rights. Your jurisdiction might allow for pre-trial diversion or the prosecutor may be willing to accept a plea deal. The lawyers at Hayes Law Office will work with you to determine the appropriate next steps and guide you through the process.

Is Smell Probable Cause?

Edmond v. State acknowledges the smell of fresh marijuana is enough to establish probable cause for an officer to search a vehicle. 951 N.E.2d 585, 591 (Ind. Ct. App. 2011). However, only smelling marijuana does not automatically equal a potential conviction of possession, unless marijuana is actually found on the person. (Id. at 592). If an officer smells marijuana, there is probable cause for the officer to begin a search of you and your property.

What is Constructive Possession?

If no proof of actual possession of marijuana exists, the State can still charge you with constructive possession. Under Lampkins v. State, a person constructively possesses marijuana when the person intends to, and has the ability to, maintain “dominion and control” over the drug. 682 N.E.2d 1268, 1275 (Ind.) modified on reh’g 685 N.E.2d 698 (Ind. 1997). This means if you are close to marijuana that is in plain view, a court will impute intent to possess marijuana.

Will the State be fair during my case?

According to Boyd v. State, “the interpretation of a statute is a question of law reserved for the courts.” 889 N.E.2d at 324. This means if your case does not fit exactly into the statute, the courts will hear your case and interpret the statute as needed. It is the State’s burden to present sufficient evidence to convict a person of possession of marijuana. If you are dealing with any type of marijuana possession issues, you need a criminal defense attorney. At Hayes Law Office, we are experienced in drug offenses and can offer you adequate representation in court. Call us at (317) 759-1515 to discuss your case.