Mass. high court rules marijuana dealing charge is valid even when alleged dealer only possesses a small amount

By Martin Finucane, Globe Staff

The state’s highest court has ruled that people can be charged with possession with intent to distribute marijuana even if they were caught with less than an ounce of the substance, despite the decriminalization of simple possession of such small amounts.

The Supreme Judicial Court said a 2008 referendum that changed possessing less than an ounce from a criminal offense to a civil offense had no effect on the separate law that makes it a crime to possess marijuana with the intent to distribute it.

“We conclude that the passage of [the referendum] did not repeal the offense of possession of marijuana with intent to distribute [...] where the amount of marijuana possessed is one ounce or less,” Chief Justice Roderick Ireland wrote in today’s opinion.

Shawn M. Keefner faced the possession with intent to distribute charge after police in Great Barrington responded on May 23, 2010, to a complaint from a woman who said her daughter and others were smoking marijuana. Police found six people, including Keefner, sitting on the front porch. They searched Keefner and allegedly found three sandwich bags of marijuana, weighing a total of 6 grams, or less than a quarter of an ounce, the court said.

Keefner argued that the possession with intent to distribute charge had been invalidated by the decriminalization of the simple possession law. A District Court judge agreed, but prosecutors appealed.

The court said that the referendum “did not expressly repeal” the possession with intent to distribute law. “Nor is there any clear implication of a repeal,” the court said.

“The [referendum law], insofar as it relates to the simple possession statute, only applies to a small amount (one ounce or less) of marijuana. In contrast, the crime of posssession with intent to distribute applies to any amount of marijuana if the intent is to distribute it (as opposed to personal use),” the court said.