Indiana Cannabis Law

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A Guide to Indiana Cannabis Law

While many states have legalized or decriminalized marijuana possession or use, Indiana marijuana laws are still relatively strict. Regardless of the legalization status in neighboring states, you can still receive harsh penalties for the possession and sale of marijuana in Indiana. Further, other Indiana statutes also apply, such as the law prohibiting operating a vehicle on marijuana, violation of which can result in a driving under the influence charge, and federal laws still prohibit marijuana possession and the transportation of marijuana across state lines.

Dealing with Indiana Marijuana Laws in Light of Legalization Elsewhere

Three of the states bordering Indiana—Illinois, Michigan, and Ohio—have legalized the marijuana in one way or another. The Marion County Prosecutor’s Office announced it will no longer prosecute low-level marijuana possession offenses. With such variation in marijuana laws and enforcement, many may ask themselves “is weed legal in Indiana?”

  • To date, the Indiana General Assembly has not legalized or decriminalized marijuana. As a result, you can still face significant penalties under Indiana marijuana laws if you possess or use even a small amount. Moreover, marijuana or marijuana products legally purchased in another state or jurisdiction become illegal when brought into Indiana. Although Indiana has not yet legalized marijuana, the legislature has entertained the idea. Thirteen marijuana bills received attention in the 2022 legislative session, although none made it to the governor’s desk.
  • To help you navigate this maze, below is a summary of some of the recent legislative activity on cannabis, the current state of marijuana laws in the surrounding states, and the consequences for violating current Indiana marijuana laws.

Marijuana Laws on Both Sides of the Scale

  • Like other states, Indiana has wrestled with the legalization of marijuana in recent years. While the state still has not made the leap to legalize cannabis across the board—or even in significant ways—the legislature has opened the door. Following are two pieces of legislation that make certain types of cannabis use legal in the state.

The Legality of CBD in Indiana

  • While recreational marijuana is illegal in Indiana, some other cannabis products are not. In 2018, Governor Holcomb signed into law Senate Bill 52 (the 2018 Farm Bill), which legalized low-THC cannabis. The law allows anyone in Indiana to buy, sell, and possess CBD oil that meets packaging requirements and has no more than .3 percent THC. CBD (cannabidiol) is a cannabis product made from industrial hemp. CBD oil is known for having the hallucinogenic property of the THC removed from marijuana, thus eliminating the ability for someone to get high from CBD.

Possession and Use of Marijuana

  • It is illegal to knowingly or intentionally possess marijuana or hashish in Indiana. Someone who cultivates marijuana plants (or fails to destroy marijuana plants that the person knows are growing on the person’s property) is also in violation of the possession law. Penalties vary, as described below.
  • Possession of any amount if the defendant has no prior drug convictions. A violation is a class B misdemeanor, punishable by up to 180 days in jail, a fine of up to $1,000, or both.
    • Possession of less than 30 grams (or less than five grams of hashish) if the defendant has a prior drug conviction. A violation is a class A misdemeanor, punishable by up to a year in jail, a fine of up to $5,000, or both.
    • Possession of 30 grams or more (or five grams or more of hashish) and the defendant has a prior drug conviction. A violation is a level 6 felony, punishable by between six months in jail and two and one-half years in prison, a fine of up to $10,000, or both.

Manufacture and Distribution of Marijuana in Indiana

  • It is illegal to manufacture or distribute marijuana or hashish (or possess marijuana or hashish with the intent to do so) in Indiana. Penalties vary according to the amount manufactured or distributed.
    • Up to 30 grams (or up to five grams of hashish). A violation is a class A misdemeanor, punishable by up to one year in jail, a fine of up to $5,000, or both. Subsequent violations are level 6 felonies, punishable by between six months in jail and two and one-half years in prison, a fine of up to $10,000, or both.
    • Between 30 grams and ten pounds (or between five and 300 grams of hashish). A violation is a level 6 felony, punishable by between six months in jail and two and one-half years in prison, a fine of up to $10,000, or both. Subsequent violations are level 5 felonies, punishable by between one and six years in prison, a fine of up to $10,000, or both.
    • Ten pounds or more (or 300 grams or more of hashish). A violation is a level five felony, punishable by between one and six years in prison, a fine of up to $10,000, or both.
  • Sale to a minor. A violation is a level 5 felony, punishable by between one and six years in prison, a fine of up to $10,000, or both.

Indiana’s Drug Paraphernalia Laws

  • It is illegal in Indiana to possess, make, or sell drug paraphernalia. Paraphernalia includes items used in growing, harvesting, processing, selling, storing, or using marijuana. Penalties vary according to the violation, but don’t apply when the paraphernalia is marketed and sold for legal purposes, such as cultivating, processing, or using tobacco. (Ind. Code Ann. § 35-48-4-8.5 (2019).)

Possession

  • Knowingly possessing marijuana paraphernalia is a class C misdemeanor, punishable by up to 60 days in jail, a fine of up to $500, or both. However, subsequent paraphernalia possession convictions are class A misdemeanors, punishable by up to one year in prison, a fine of up to $5,000, or both. (Ind. Code Ann. §§ 35-48-4-8.3, 35-50-3-2, 35-50- 3-4 (2019).)

Manufacture

  • Someone who manufactures paraphernalia is guilty a civil infraction, punishable with a fine, but no jail time. The amount of the fine will vary according to the county in which the infraction occurred. However, a second or subsequent violation is a level 6 felony, punishable by between six months and two and one-half years in prison, a fine of up to $10,000, or both. (Ind. Code Ann. §§ 35-4-8.1, 35-50-2-7 (2019).)

Sales

  • Selling paraphernalia is a civil infraction, unless the seller knowingly or intentionally violates this law (or violates the law when the seller should have known that the seller’s conduct was illegal), in which case, it is a class A misdemeanor. Civil infractions subject the violator to a fine, but no jail time. The amount of the fine will vary according to the county in which the infraction occurred. A class A misdemeanor carries penalties of up to one year in jail, a fine of up to $5,000, or both. However, subsequent paraphernalia possession convictions are level 6 felonies, punishable with between six months and two and one-half years in prison, a fine of up to $10,000, or both. (Ind. Code Ann. § 35- 48-4-8.5, 35-50-2-7, 35-50-3-2 (2019).)

Indiana Marijuana Laws and Marijuana Laws in Neighboring States

  • In recent years, more states have legalized or decriminalized marijuana for adult use. Of the states surrounding Indiana, Michigan and Illinois have fully legalized possession and use of limited amounts marijuana. Ohio has decriminalized possession and use of smaller amounts and legalized medical marijuana.

What Is Decriminalization?

  • When marijuana is decriminalized in a state, the residents are generally allowed to possess a certain amount without risk being charged with a crime. Decriminalization means no arrest, jail time, or criminal record for the first time a person is caught with a small amount of marijuana for personal consumption. The court treats these infractions similarly to minor traffic violations.
  • Decriminalization only applies to marijuana for personal use, and the amount allowed to be possessed without having it be a crime varies from jurisdiction to jurisdiction. Anyone caught with large amounts of marijuana or trying to sell marijuana is still at risk of criminal charges.

Penalties for Weed Under Indiana Marijuana Laws

  • Indiana Code § 35-48-2-4 lists marijuana as a Schedule I drug. The severity of penalties for marijuana possession depends on the quantity and intention of the defendant.

Offenses for Possession of Marijuana in Indiana

  • The severity of sentence for marijuana possession in Indiana is determined by the amount of marijuana involved and whether the individual has a prior conviction for marijuana possession. Under Indiana Code § 35-48-4-11, possession of marijuana is a Class B misdemeanor, which can result in a sentence of up to 180 days in jail and a fine of up to $1,000.
  • If an individual charged with possession has a prior drug offense, possession of fewer than 30 grams is a Class A misdemeanor with a potential a one-year sentence and a maximum fine of $5,000.
  • Anyone in possession of at least 30 grams and with a prior drug offense conviction faces between six months and two and a half years of jail and a fine of up to $10,000.

Offenses for Dealing in Marijuana in Indiana

  • Under Indiana Code § 35-48-4-10, a person convicted of selling marijuana in Indiana face more severe penalties than those charged with possession. A first-time charge for those who sell less than 30 grams is a Class A misdemeanor, which carries a maximum sentence of one year in jail and a maximum $5,000 fine. A second offense is a Level 6 felony, which is punishable by six months to two and a half years in jail and a maximum $10,000 fine.
  • The sale of at least 30 grams but less than ten pounds of marijuana is a Level 6 felony punishable by incarceration six months to two and a half years and a $10,000 fine. The sale of ten pounds or more is a Level 5 felony that carries a one- to six-year imprisonment and a maximum fine of $10,000.
  • Indiana marijuana laws prohibit the sale of marijuana to minors under any circumstances. The sale of any amount of marijuana to a minor is a Level 5 felony punishable by incarceration for one to six years and a fine of up to $10,000.

Indiana Marijuana Laws and Driving Under the Influence

  • Operating a vehicle while under the influence of marijuana is also a criminal offense in Indiana. An offender may be charged with driving under the influence for allegedly operating a vehicle with a controlled substance is present in their body. Indiana law does not require the driver to be impaired to be found guilty of a driving under the influence conviction. Rather, the mere presence of THC in the person’s system (along with evidence of the other elements of the offense) is sufficient to support a conviction.
  • While alcohol is generally out of your system within 24 hours, marijuana can be detected by testing for several weeks after use. So what happens when you are pulled over and charged with driving under the influence of marijuana in Indiana?

Testing Drivers for Marijuana

  • When driving in Indiana, you impliedly consent to chemical testing. A police officer who has probably cause to believe that you are driving under the influence may require you to undergo testing. The test needs to be performed within three hours of the police officer acquiring probable cause to believe you were driving under the influence. Failure to comply with the testing requirement results in the immediate revocation of your license and suspension of your driving privileges for a year or more.

Penalties for Operating a Vehicle under the Influence of Marijuana

  • The severity of the penalty depends on how many prior driving under the influence arrests the defendant has. For the first offense, the defendant is charged with a misdemeanor but is still at risk for up to a one-year sentence, a maximum fine of $5,000, a license suspension for up to one year, and probation for up to two years.
  • A second DUI offense is a Level 6 felony if charged within five years of the first driving under the influence of the first conviction. The second offense results in a minimum sentence of five days or up to two and a half years, a fine of up to $10,000, a license suspension for six months to two years, and probation for two and a half years.
  • A defendant’s third offense for driving under the influence is also a Level 6 felony when it is within five years from the last conviction. Penalties include between ten and two and a half years in jail, a fine up to $10,000, license suspension for at least one year, and up to two and a half years of probation.
  • While these are the most common driving under the influence charges, there are additional penalties and enhanced penalties if the operation of a vehicle under the influence results in a death or if a passenger in the vehicle is a minor. Multiple driving under the influence convictions can result in suspended driving privileges if the individual is adjudicated a habitual traffic violator.

Federal Enforcement of Medical Marijuana Laws

  • Federal prosecutions of individuals possessing marijuana are extremely rare. The federal government has limited resources to investigate and prosecute federal drug laws, and low-level marijuana offenses are at the bottom of the list of priorities.
  • On the other hand, individuals and businesses that sell medical marijuana might face criminal investigation and prosecution, depending on which way the political winds blow.
  • In 2013, the Department of Justice (DOJ), under President Obama’s administration, formally announced that it would not interfere with marijuana operations that strictly complied with state regulations. Federal law enforcement would instead narrowly focus on targeting:
    • marijuana revenue that appears to fund gangs
    • distribution of marijuana to minors
    • marijuana moving from states where it’s legal to states where it’s illegal
    • money laundering (using state-legal marijuana sales as a cover for illegal activity)
    • violence and firearm use in growing or distributing marijuana
    • driving under the influence of marijuana or other negative public health consequences of using marijuana, and
    • marijuana possession or use on federal property (for example, national parks).
  • In 2018, under President Trump’s administration, the DOJ abruptly terminated this policy and announced that federal prosecutors can pursue criminal cases whenever state and federal marijuana laws collide.
  • So far, the policy reversal has largely been symbolic. Individual federal prosecutors have the discretion to pursue prosecutions that federal agents bring to them, but the number of federal prosecutions for marijuana trafficking has declined to less than 1,000 in 2021. Federal prosecutors bringing marijuana cases run the real risk of jury nullification— when a trial jury reaches a verdict that is contrary to the law because jurors think the law or penalty is unfair.
  • Law enforcement officers make the vast majority of arrests for marijuana offenses under state, not federal law. In 2018, police officers in the United States made more arrests for marijuana offenses, mostly possession, than for any other drug, according to FBI data from 2018.

Federal Law and the State-Legal Marijuana Industry

  • Legal marijuana is big business. In states where residents have access to legal marijuana, the markets are grossing billions of dollars, despite federal prohibition.
  • The conflict between federal and state marijuana laws has caused problems beyond uncertainty about criminal liability in the state-legal marijuana industry. Most widespread problems relate to commerce and capital—two areas in which the federal government holds full sway.

Banking

  • Banks have been generally unwilling to do business with companies that sell marijuana, out of concern that taking deposits from marijuana businesses could violate federal anti- money laundering laws.
  • Without access to banking services, many companies in the marijuana industry are cash- only businesses that are vulnerable to theft.

Interstate Trade

  • Federal law strictly prohibits marijuana from crossing state lines, including among states where the sale of marijuana is legal for medical purposes.
  • The federal restriction on interstate commerce has caused an imbalance in the markets. For example, hundreds of pounds of marijuana rots in Oregon because growers can’t export it across state lines, even to neighboring Nevada, where the use of marijuana for medical purposes is legal, but where marijuana is much more difficult to grow.

Taxes

  • The Federal tax code (26 U.S.C. § 280E) still classifies marijuana farmers, dispensary owners, and others in the marijuana industry as drug traffickers. Yet marijuana businesses are still required to pay federal taxes.
  • Consequently, marijuana businesses can’t take tax deductions like other businesses. For example, payroll and operating expense deductions are not available to them.
  • Marijuana businesses end up with huge federal tax bills that they often have to pay in cash because they lack access to banking services (see above).

Indiana Cannabis Advertising Law

  • Currently no advertising regulations in place.
  • If you’ve taken a road trip in the past few years, you’ve definitely spotted the billboards dotting Indiana’s interstates and highways advertising cannabis dispensaries in Michigan and Illinois.
  • They beckon Hoosiers across those state borders into the land of legalized marijuana — and some are undoubtedly making the trip.
  • For example, the Michigan towns of Niles and Buchanan — just across the border from South Bend — have eight dispensaries between them, selling to both medical and recreational customers.
  • And in 2021, the Michigan marijuana industry made $1.79 billion in sales. According to a March 2020 Michigan State University study, the industry has the potential to reach $3 billion in sales in the next few years — bringing a total economic impact of $7.8 billion.
  • The numbers are similar for Illinois — in 2021, the industry there sold $1.38 billion worth of marijuana, with an average of $4.4 million per day in December.
  • Some of those dollars are definitely coming from Hoosiers. But marijuana is still not legal in Indiana — so how are all these dispensaries able to advertise here?
  • Daniel Orenstein is a visiting assistant professor of law at Indiana University–Purdue University Indianapolis. One of his research areas is marijuana law and policy.
  • He said there’s a lot of history in America of businesses setting up just across the border when something is illegal in one place but legal in another — think casinos in Nevada or liquor stores just outside of dry counties.
  • And he said advertising is protected by the First Amendment. There are regulations limiting what and how something can be advertised — think tobacco companies or alcohol — but billboards are generally less restricted, and there’s a lot of legal precedent surrounding advertising across state lines.

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