Since 2009, the possession of less than one ounce of marijuana has been decriminalized in Massachusetts. The penalty is a fine of $100, and forfeiture of the marijuana.

However, “possession with intent to distribute” marijuana is still a crime, carrying a potential jail sentence of two and one-half years. There doesn’t have to be actual distribution of the pot; evidence of INTENT to distribute can trigger the criminal charge. In a recent case, the Supreme Judicial Court (SJC) of Massachusetts said the crime of Possession with Intent to Distribute can occur even when less than an ounce of marijuana is involved.

What is evidence of intent to distribute? It could be packaging, or the presence of customer lists, or the possession of a significant amount of cash.

In an interesting recent case, a mother called the police because her daughter and one of her daughter’s friends were smoking pot on the front porch. When the cops arrived, mom pointed out the “bad guy”. The officer proceeded to search him, and found 3 individual small bags of marijuana (less than an ounce in total), about $100 and a cell phone. The officer placed him under arrest for possession with intent.

The SJC said that the police search of the defendant was unconstitutional, since there was no evidence of a crime going on. (Remember, Mom just complained about them smoking pot). The police violated the right of a person to be free from unreasonable search and seizure. Yes, they found evidence of a possible intent to distribute, but they found it illegally. Therefore, the case was dismissed.

But one take-away from this Court’s decision is that possession of LESS than an ounce of pot, with an intent to distribute it, is a crime.

The Boston Globe ran a series recently describing how some Massachusetts judges tend to find defendants not guilty of drunk driving charges.   In Massachusetts, a defendant can choose to have a jury trial or a “bench” trial before a judge without a jury.  The Globe story focused on the higher percentages of not-guilty verdicts in bench trials than in jury trials.  The writers were suggesting that defense lawyers “game” the system by choosing bench trials before certain judges.  The articles highlighted several cases where a “slam dunk” guilty OUI defendant was let go by a defense-friendly judge.

As is often the case when the press examines the criminal justice system, the truth is not as simple as the articles suggest.  Here are several problems that I find with the Globe’s series on this issue:

1.  When you examine the difference between jury and bench trials, there is not a great difference in the ratio of “not guilty” to “guilty” verdicts.

2.  However, there apparently is a higher rate of not-guilty verdicts in bench trials.  One reason for this is that lawyers (defense as well as prosecutors) often recognize that a case is weak for the Commonwealth, and, rather than waste the public resources on a case that is very one-sided, decide to put the facts before a judge.  These are cases that a jury would most likely agree deserve a not-guilty verdict.

3.  Although a police officer can arrest a driver if he or she has probable cause to believe that the driver is operating under the influence, to find the defendant guilty the fact finder must be convinced beyond a reasonable doubt.  “Beyond a reasonable doubt” requires more certainty and confidence in the evidence than “probable cause” to arrest requires.

4.  There are rules of evidence that are constitutionally and legally required in a trial that are not required in an arrest.  For example, many police officers give drunk driving suspects the Horizontal Gaze Nystagmus test to assess whether the driver is under the influence.  This test is not admissible in Massachusetts courts, because it is a neurological test that most police officers and state troopers are not qualified to interpret.

So yes, judges sometimes do find defendants not guilty of driving under the influence.  But this is not because judges think drunk driving is not a serious issue, nor is it because they are friends with defense lawyers.  Although the Globe pointed to some apparently egregious cases, the fact is that most of the time, when a judge finds a defendant not guilty, it is because it is the right thing to do.

If you’re arrested and brought from the police lockup to court, chances are you won’t have a lawyer with you in court. If you aren’t arrested, but get notice that you’re charged with a crime and told to report to court on a certain day, you will be able to consult with an attorney before the court date.  You don’t have to have a lawyer with you.

That first day in court is your arraignment. This is when the court officially reads the charges to you.  Since, in our country, you are presumed to be not guilty, a “not guilty” plea will be entered for you.  Even if you know that you did what they say you did, even if you want to take responsibility for what you did, even if you want to get it all over with, DON’T PLEAD GUILTY AT YOUR ARRAIGNMENT.

In some cases, the prosecutor asks the judge to set bail.  In this case, you should have a lawyer; in fact, if you don’t have your own attorney with you, the court may appoint a lawyer to represent you for the bail hearing.