Criminally Yours: What Smoking A Joint Can Cost You

The lesson to be learned: you can be busted if smoking pot in public. Be careful this holiday season.

There’s a piece in the New York Times today about the proliferation of marijuana smoking in public as though everybody thinks it’s no longer illegal. But beware.

First of all, smoking pot in pubic is still illegal. Low-level possession has been decriminalized (anything less than 25 grams), but in this season, you’ve got to watch out. Whether you get busted or not depends on the good graces of the cop who happens to find the pot on you. “Collars for dollars,” a phenomenon that happens during the Yuletide season, means police are looking to make extra money for Christmas. For each over-time hour they spend busting you and filling out the paperwork, they get paid time-and-a-half. So even for the misdemeanors and violations which might not normally get you hauled in, they might at Christmas.

Generally though, if you’re caught merely in possession of marijuana instead of smoking it, the cop will issue you a summons.   A summons looks like a traffic ticket and compels you to go to the Summons Court at 246 Broadway at a later date. You can’t phone it in and you can’t plead guilty by mail as you could with a public urination or drinking in public charge.

While a summons is a lot better than being arrested, it still takes time and money (if you hire a lawyer).

In the Summons Part, you’ll be in a room crowded with dozens of other low-level miscreants (one room for Brooklyn, the other for Manhattan), and have to wait for as long as it takes to get your case called. (A paid lawyer comes in handy here.) There is no prosecutor. The judge, usually a retired judge from State Court, takes the briefest look at the complaint in your case (the narrative the cop wrote to substantiate the charge), and rules whether it’s sufficient or not. If it’s not sufficient, he’ll dismiss the case. If it is, you’ll get a plea offer — usually, if it’s your first time, an ACD (Adjournment in Contemplation of Dismissal) — which gets the case fully dismissed and sealed in six months. A fine will attach or community service. You’ll get time to pay. If you’re not a U.S. citizen, even if you’re legally here and working full-time, you’ll have to mention the police stop the next time you apply for a Visa or when you apply for citizenship.

Smoking pot in public, however, can bring a full-blown arrest if the cop doesn’t like you. That means the full treatment — cuffs, booking, printing, mug shot, and an interminable wait first at the police precinct then in the bowels of 100 Centre Street (hours and hours crammed in a cell with people charged with a lot worse crimes than smoking marijuana). You’ll get a public defender at the arraignment — that’s when you either plead not guilty, or agree you were smoking and then accept the same marijuana ACD you’d have gotten in the summons part.

Here’s an example of how it plays out. I have a client who was working out in Riverside Park with a friend who was smoking marijuana. A cop pulled up and the friend threw the joint to the ground. The cop told both men: “Either one of you picks up the joint, or both of you get arrested.” My client picked up the joint. He got issued a summons. Unfortunately, because he’s been arrested for pot possession before and he’s a Legal Permanent Resident and not a U.S. citizen, his case gets tricky. It’s doubtful the court will offer him an ACD the third time around.

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The lesson to be learned: you can be busted if smoking pot in public. Choose your locale carefully, i.e., don’t smoke while you’re trespassing in a park after dark; don’t carry pot while you’re jumping a turnstile or marching in a demonstration; and above all, if you’re not a citizen, don’t do anything illegal in public.


Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.

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