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Idaho Cannabis Law

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A Guide to Idaho Cannabis Law

Legal Insights:

As states across the nation have responded to an increase in public support for legalized marijuana, including its use for medicinal purposes, Idaho remains one of a handful of states that continues to prohibit any use or possession of marijuana. As of May 2021, a majority of states allow for the medical use of marijuana. During the 2021 legislative session, the Idaho Legislature was presented with House Bill 108, proposing to legalize medical marijuana. Although this bill did not make it out of committee, the legalization of marijuana is an issue that will likely be revisited in subsequent sessions.

Definition of Marijuana

  • Idaho has remained staunchly opposed to allowing marijuana into the state: medical and recreational. However, we are bordered by Nevada, Oregon, and Washington, who have all decriminalized the recreational use of marijuana, and Utah and Montana who have decriminalized marijuana for medical purposes.
  • Idaho law classifies marijuana and many of its derivatives as Schedule I controlled substances that cannot be prescribed, manufactured, distributed, or possessed for any reason. Idaho Code § 37-2701 et seq. A Schedule I substance is one that “has high potential for abuse . . . and has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.” Idaho Code § 37-2704.

Substances that are considered “marijuana” for purposes of the prohibition are defined expansively under Idaho law as follows:

  • “Marijuana” means all parts of the plant of the genus Cannabis, regardless of species, and whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. It does not include the mature stalks of the plant unless the same are intermixed with prohibited parts thereof, fiber produced from the stalks, oil or cake made from the seeds or the achene of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted therefrom or where the same are intermixed with prohibited parts of such plant, fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination. Evidence that any plant material or the resin or any derivative thereof, regardless of form, contains any of the chemical substances classified as tetrahydrocannabinols [THC] shall create a presumption that such material is “marijuana” as defined and prohibited herein.
  • Due to Idaho’s broad statutory definition of marijuana, any compound containing any amount of THC will be considered a Schedule I controlled substance and subject to laws restricting its use or possession.

CBD Oil

  • Cannabidiol (CBD) oil is an oil that comes from the cannabis plant, and under Idaho law, is not necessarily considered a controlled substance. Whether CBD oil will be considered a controlled substance depends on two factors:
  • whether the oil contains THC, and
  • the part of the cannabis plant from which it is derived. To be excluded from the definition of “marijuana,” the CBD oil must be derived or produced from
  • mature stalks of the plant,
    • fiber produced from the stalks,
    • oil or cake made from the seeds or the achene of such plant,
    • any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, or
    • the sterilized seed of such plant which is incapable of germination. Idaho Code § 37-2701(t). Therefore, CBD oil will be considered a Schedule I controlled substance if it contains any amount of THC, or if it is derived from a portion of the cannabis plant that is not expressly permitted under Idaho Code § 37-270l(t).

Pharmaceutical Grade CBD Oil

  • While Idaho does not permit the medical use of marijuana, Idaho does allow the use of pharmaceutical grade products that are approved by the Food and Drug Administration (FDA) pursuant to a prescription by a licensed healthcare provider.
  • At present, there is one FDA-approved CBD drug product that is available by prescription. Epidiolex is a Schedule V controlled substance approved for the treatment of seizures.

Marijuana as Medicine

  • The term medical marijuana refers to using the whole, unprocessed marijuana plant or its basic extracts to treat symptoms of illness and other conditions. To date, the FDA has not approved a marketing application for cannabis for the treatment of any disease or condition. The FDA has, however, approved one cannabis-derived and three cannabis- related drug products. These approved products are only available with a prescription from a licensed healthcare provider.
  • The FDA has approved Epidiolex, which contains a purified form of the drug substance CBD for the treatment of seizures associated with Lennox-Gastaut syndrome or Dravet syndrome in patients 1 years of age and older. It has also approved Epidiolex for the treatment of seizures associated with tuberous sclerosis complex in patients 1 year of age or older. That means FDA has concluded that this particular drug product is safe and effective for its intended use.
  • The agency also has approved Marinol and Syndros for therapeutic uses in the United States, including for the treatment of anorexia associated with weight loss in AIDS patients. Marinol and Syndros include the active ingredient dronabinol, a synthetic delta-9- tetrahydrocannabinol (THC) which is considered the psychoactive component of cannabis. Another FDA-approved drug, Cesamet, contains the active ingredient nabilone, which has a chemical structure similar to THC and is synthetically derived.

Possession

  • Idaho law dictates that a person has possession of something if the person knows of its presence and has physical control of it or has the power and intention to control it. So, this means that you may be convicted of possession of marijuana if you have either actual, constructive, or joint possession (pun not intended).
    • Actual possession is when you are found with the marijuana on you. For example, in your pocket or purse.
    • Constructive possession is when the marijuana is found in a place that you have control over, for example, your car, room, or office. Remember, it is not enough for the police to find marijuana in your room. They must also prove that you knew it was there.
    • Joint possession is when the marijuana is found to be controlled by more than one person. For example, when a husband and wife keep their marijuana stashed in their closet.

Drugged Driving

  • Every state criminalizes driving under the influence of a controlled substance. Some jurisdictions also impose additional per se laws. In their strictest form, these laws forbid drivers from operating a motor vehicle if they have a detectable level of an illicit drug or drug metabolite (i.e., compounds produced from chemical changes of a drug in the body, but not necessarily psychoactive themselves) present in their bodily fluids above a specific, state-imposed threshold. Read further information about cannabinoids and their impact on psychomotor performance. Additional information regarding cannabinoids and proposed per se limits is available online.

Mandatory Minimum Sentence

  • When someone is convicted of an offense punishable by a mandatory minimum sentence, the judge must sentence the defendant to the mandatory minimum sentence or to a higher sentence. The judge has no power to sentence the defendant to less time than the mandatory minimum. A prisoner serving an MMS for a federal offense and for most state offenses will not be eligible for parole. Even peaceful marijuana smokers sentenced to “life MMS” must serve a life sentence with no chance of parole.

Misdemeanor or felony?

  • The severity of the criminal offense of possession of marijuana varies drastically depending on how much weight you possess. In Idaho, possession of up to 3 ounces is a misdemeanor. Possession of an amount greater than 3 ounces is a felony.

How much is 3 ounces?

  • 3 ounces is a significant amount of marijuana. For a heavy smoker, 3 ounces is nearly a month’s supply. If you were to put an ounce of marijuana in a sandwich-sized Ziploc bag, a general rule of thumb would be that the bag would be filled with a height of four- fingers across. Street value of one ounce of marijuana is anywhere from $100-$300.

What is the maximum punishment for possession of marijuana?

If convicted of felony possession of marijuana, you could face up to 5 years in prison and/or a

$10,000 fine. If convicted of misdemeanor possession of marijuana, you could face up to a year in the county jail and/or $1,000 fine.

What is the real punishment for possession of marijuana?

  • The court can and may punish you in many ways: jail time, Sheriff’s labor detail, community service, substance abuse counseling, fines, court costs, and probation. How much of each of these depends on how good of a defense you can present. The average client that I see is usually caught with under an ounce of marijuana. Typically, they will be cited and released for possession of marijuana and possession of drug paraphernalia because they also have a marijuana pipe with them. Here is generally what to expect.
  • Jail: Generally, for a first-time misdemeanor possession of marijuana conviction, the court will sentence you to between 90-180 days of jail, but then suspend all but 0-2 days, placing you on probation. So, in reality you will only have to do up to 2 total days of jail, and the rest is suspended and held over your head for the duration of your probation to make sure that you stay out of trouble. Ordinarily, the judge will allow sentencing alternatives like Sheriff’s labor detail or community service to substitute for actual jail. Eight hours of community service is counted as one day of jail. You also get credit for any time you served if you were arrested. Even if you were bailed out after a few hours, this may count as 1 or 2 days of credit (if you were booked before midnight and released after).
    • Probation: Probation usually ranges between 1-2 years. Unless there are aggravating circumstances, the probation will be unsupervised. This means you will not have a probation officer. You are simply ordered by the court to stay out of trouble during the probationary period, otherwise you could face the suspended penalties.
    • Community service: If placed on probation for a conviction of possession of marijuana, Idaho law requires imposition of 100 hours of community service. However, a good defense attorney will always argue to get around this requirement. For instance, if you plead to the possession of drug paraphernalia instead or are not placed on probation you do not have to complete the 100 hours of community service.
    • Fine: Ordinarily it is between $150-$500 plus court costs of $197.50.

Tax Stamps

  • This state has a marijuana tax stamp law enacted. This law mandates that those who possess marijuana are legally required to purchase and affix state-issued stamps onto his or her contraband. Failure to do so may result in a fine and/or criminal sanction.

State impose a Stamp Tax or Controlled Substances Tax

  • Idaho imposes an “Illegal Drug Tax” on persons who possess controlled substances in violation of Idaho law. A “controlled substance” includes (1) more than 42.5 grams of marijuana, and (2) one or more growing marijuana plants, that are possessed in violation of Idaho law. The tax rate is $3.50 per gram of marijuana or portion of a gram, and $775 per growing marijuana plant. See Idaho Code § 63-4203. The tax is payable through the medium of official stamps, labels or other indicia designated by, purchased from and sold by the State Tax Commission. See Idaho Code § 63-4204(3).

Taxation of Medical Marijuana

  • An excise tax of four percent (4%) shall be imposed upon the gross receipts of all marijuana sold by a medical marijuana dispensary to a qualifying patient or a designated caregiver. The Idaho State Tax Commission shall establish a procedure for the collection of this tax and shall collect the tax.
  • The tax revenue shall be disbursed to the Department to cover reasonable costs incurred by the Department in carrying out its duties under this Chapter. The remaining tax revenue collected shall be disbursed fifty percent (50%) to the Idaho Division of Veterans Services and the other fifty percent (50%) to the General Fund. The funds disbursed to the Idaho Division of Veterans Services are in addition to any funds regularly dispersed to the Idaho Division of Veterans Services other sources.
  • The tax levied in this section is separate from, and in addition to, other state and local taxes.

Limitations

  1. This Chapter does not authorize any person to engage in, and does not prevent the imposition of any civil, criminal, or other penalties for engaging in, the following conduct:
    • Undertaking any task under the influence of marijuana that would constitute negligence or professional malpractice.
    • Possessing or engaging in the medical use of marijuana:
      1. On a school bus; or
      1. In any correctional facility.
    • Smoking marijuana:
      1. On any form of public transportation;
      1. On the grounds of any licensed daycare, preschool, primary or secondary school; or
      1. In any public place.
    • Operating, navigating, or being in actual physical control of any motor vehicle, aircraft, train, motorboat, or other motorized form of transport while under the influence of marijuana, except a registered qualifying patient or nonresident cardholder who is a qualifying patient may not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.
  2. Solvent-based extractions on marijuana using solvents other than water, glycerin, propylene glycol, vegetable oil, or food grade ethanol by a person not licensed for this activity by the Department.
    • Using marijuana except as authorized under this Chapter.
    • Nothing in this Chapter requires:
      • A government medical assistance program or private insurer to reimburse a person for costs associated with the medical use of marijuana;
      • Any person or establishment in lawful possession of property to allow a guest, client, customer, or other visitor to smoke marijuana on or in that property;
      • A property owner to allow the cultivation of marijuana on a rental property; or
      • A licensed daycare, preschool, primary or secondary school to allow the medical use of marijuana on its property.

Idaho Advertising Law

  • Lawmakers noted advertising in western Idaho for marijuana across the border in Oregon, where it’s legal. Lawmakers noted that cigarette and alcohol advertising is banned in Idaho, so advertising for drugs such as marijuana, meth and heroin should also be banned.

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