6 THINGS YOU SHOULD KNOW IF YOU ARE ARRESTED FOR POSSESSION OF MARIJUANA IN SOUTH CAROLINA

LAW ENFORCEMENT CONSIDERS A NUMBER OF FACTORS WHEN CHARGING YOU

A number of factors determine which specific charges you could face, including weight, packaging (for personal consumption or for sale), whether the sale was to a confidential informant (CI), and whether law enforcement observed the sale of marijuana. Each charge has its own set of consequences, and the difference in punishment between the various charges can be substantial.

LEGALLY OBTAINING MARIJUANA IN ANOTHER STATE IS NOT A DEFENSE

It is now possible to buy cannabis “legally” in a number of states. Keep in mind that possession of marijuana is still a federal crime, but enforcement is low in states where it is legal under state law. However, obtaining marijuana “legally” in another state does not provide you with a defense to a marijuana charge in South Carolina.

JUST ABOUT ANYTHING CAN BE CONSIDERED PARAPHERNALIA

You can face a drug-related charge without possessing marijuana if you are found with an item that is generally associated with marijuana, in the form of “possession of drug paraphernalia.”

Under South Carolina law, paraphernalia is, “Any instrument, device, article, or contrivance used, designed for use, or intended for use in ingesting, smoking, administering, manufacturing, or preparing a controlled substance.”

Many items can be considered paraphernalia, including:

Hash pipes

Water pipes

Bongs (including homemade bongs)

Roach clips

Separation gins (for cleaning marijuana)

Electric pipes

Ice pipes

Digital scales

However, you can be charged with possession of drug paraphernalia if you have anything that could reasonably be considered to be marijuana-related.

There is no specific list of what constitutes paraphernalia, but state law provides factors used to decide if something is paraphernalia, including: (1) What the owner says the paraphernalia item is used for; (2) How close the item is to marijuana; (3) Whether the item has marijuana residue on it; (4) Whether there is evidence, either direct or circumstantial, that the item was used to process marijuana; (5) Whether there are oral or written instructions that indicate the item is used with marijuana; (6) Whether there are advertisements that indicate the item is used with marijuana; and (7) Whether this is a legitimate reason to have the item.

YOU WILL NOT HAVE YOUR LICENSE SUSPENDED FOR A FIRST-OFFENSE SIMPLE POSSESSION

If this is your first conviction for Simple Possession of Marijuana (possessing a quantity of marijuana weighing less than 28 grams), you will not lose your driver’s license. Under a previous South Carolina law, you could have your license suspended if convicted of Simple Possession of Marijuana 1st offense, but this is no longer the case.

POSSESSION WITH INTENT TO DISTRIBUTE (PWID) IS NOT DETERMINED SIMPLY BY WEIGHT 

PWID means you possessed marijuana that you intended to sell, trade, or otherwise distribute. If you possess more than one ounce (28 grams), you could be charged with PWID marijuana. One key to understanding this charge is the determination of whether you have more marijuana than you would be able to use yourself, i.e., more than what would be considered typical for “personal use.”

Law enforcement also considers factors other than the weight of the marijuana to determine how to charge someone. For example, if you have less than 28 grams but it is not all in one bag or package, you could still be charged with PWID.

IT IS EASY FOR LAW ENFORCEMENT TO INCORRECTLY WEIGH MARIJUANA

Under S.C. law, “marijuana” is not: (i) the mature stalks of the marijuana plant or fibers produced from these stalks; (ii) oil or cake made from the seeds of the marijuana plant, including cannabidiol derived from the seeds of the marijuana plant; (iii) any other compound, manufacture, salt, derivatives, mixture, or preparation of the mature stalks (except the resin extracted therefrom), including cannabidiol derived from mature stalks; or (iv) the sterilized seed of the marijuana plant which is incapable of germination.  See S.C. Code Ann. § 44-53-110(27)(a)(i)-(iv). 

Law enforcement is not supposed to weigh mature stalks or sterile seeds. In addition, there is currently no case law on what constitutes a stalk versus a stem. Therefore, law enforcement generally weighs the totality of whatever they confiscate without removing any larger stems or stalks or seeds. This means that the weight as presented to a court in a marijuana case is often wrong, or can at least be challenged, especially in cases involving larger quantities.

If you have been charged with a marijuana crime, call us at 803-386-7117 or email me at stephen@foster.legal to schedule a free strategy session to discuss how to best fight the charges against you.

Stephen Foster