Marijuana Desk Appearance Ticket (DAT) Information in New York City

THERE MAY BE MORE MARIJUANA DESK APPEARANCE TICKETS WRITTEN IN NEW YORK CITY, BUT MARIJUANA IS STILL ILLEGAL

The issue of marijuana in New York City recently received a great deal of attention because of a misconception that New York City was "decriminalizing" marijuana.  Marijuana was not decriminalized in New York, but the enforcement of marijuana has shifted to cause more marijuana desk appearance tickets to be written. 

What has received attention is that the NYPD is theoretically going to be cutting back on full blown "through the system" marijuana arrests.  They are not going to ignore such arrests, but when they do make them, they are supposed to be writing more of them up as marijuana desk appearance tickets.  A law enforcement decision has been made not to devote significant resources toward the processing of marijuana arrests.  It doesn't mean that people will not get pink summonses.  It doesn't mean that people will not get desk appearance tickets.  It simply means that people will be far less likely to spend a night in jail waiting to see a judge after being arrested for marijuana.

Again, marijuana has not been legalized in New York City.

THE TWO MOST COMMON MARIJUANA DESK APPEARANCE TICKETS

1) Unlawful Possession of Marijuana (Penal Law Section 221.05)

Unlawful possession of marijuana is not LEGAL (hence the term unlawful), but it is not CRIMINAL.  In other words, unlawful possession of marijuana, PL 221.05, is a NON-CRIMINAL offense.  You can think of it as the equivalent of a traffic or parking violation.  Therefore, if you have been charged with unlawful possession of marijuana, it is impossible for you to end up with a criminal record as a result of the accusation.  It is impossible because you are not charged with a crime.

Unlawful possession of marijuana brings some legal baggage along with it that creates an initial stumbling block for the Government and results in a fair number of these cases being subject to dismissal when a particular legal argument is made to the Court by your lawyer.  Without going too deep down the rabbit hole of legal jargon, you just need to know that because the charge is only a violation, the Government is required to have one of three documents at the time of your arraignment or there is a legal argument that the case should be dismissed.

DOCUMENT NUMBER ONE - A FORMAL LABORATORY ANALYSIS

If the police took a sample of the substance and presented it to a police lab, and if the police lab determined that the substance was marijuana, and the lab provided a report to the Court indicating positive for marijuana, then this would be considered sufficient to keep the accusation "alive" in Court.  This is extremely, extremely rare for an unlawful possession of marijuana case.

DOCUMENT NUMBER TWO - A FIELD TEST

If the police take a sample of the substance and used a "field test kit" to get a preliminary determination, and the preliminary determination indicated positive for marijuana, this would also be considered legally sufficient to keep the accusation "alive" and avoid the dismissal.  This is far more common that getting a formal lab report, but still fairly rare.

Document Number Three - Affidavit from the Police Officer

A relatively recent addition to the ways the Government is allowed to breathe life into marijuana accusations is a simple affidavit (pre printed and signed by the officer) that says (in substance) something like, "I have been a police officer for a while, I have been trained to know what marijuana looks like, and I have made any number of marijuana arrests, and after looking at the substance I recovered here, I have to say that it sure looks like marijuana to me."  Our Courts now accept an affidavit similar to this in order to keep these unlawful marijuana cases alive.  Although this is obviously extremely easy to do, since all the police officer has to do is sign a preprinted form, strangely enough it doesn't happen on a fairly regular basis.

OUTCOMES

But what if the Government HAS one of the above three items and the case is kept "alive"?  What can come of the case if you are looking for a resolution and not looking to have a full blown trial?  Up front you need to remember that you are talking about something that is the equivalent of a parking ticket, and so for most purposes you are in pretty good shape right at the outset.

But it is often possible for your lawyer to negotiate an Adjournment in Contemplation of Dismissal (ACD - also known by lawyers who give away themselves as Nassau County practitioners as the ACOD).  The ACD is a kind of delayed dismissal.  It is not an acknowledgement of guilt to anything.  At the conclusion of a particular time period (usually one year), the matter is automatically dismissed and sealed, the same result that would have happened procedurally if you had gone to trial and won.

In the rare event where for some reason this ACD is not made available to you, and you are not inclined to pursue the matter further to see about ultimately whether you can get it, it will then come down to whether you want to settle it to a violation level offense.  This could mean taking a plea to the exact charge, or preferably, arranging a "pivot" to a different violation offense instead of the unlawful possession of marijuana offense.  There are a couple of advantages to this sort of "pivot".  First, people often prefer not to be associated with a conviction for something (even a non criminal matter) that has the word "marijuana" in it.  How much better to have a non-criminal conviction for some meaningless public health code violation?  Second, if the judge will agree to a pivot to a violation level offense that is outside in the Penal Law, and say, within the Public Health Law, then it is a way your lawyer can save you $120.  That's right, your lawyer can save you money.  Imagine that.  You see, New York taxes many things, including settlements to offenses that are inside the Penal Law.  The Government makes quite a bit of money from these taxes.  But when the legislature created these taxes, they forgot to make them applicable to certain groups of laws, like the Public Health Law.  Therefore, if the Court allows a settlement to a meaningless Public Health Law violation, as a substitute for the marijuana violation, you can avoid having to pay $120.

SPECIAL CIRCUMSTANCES

Occasionally you run across special situations with these marijuana cases where people are especially concerned with the accusation because of collateral issues like immigration, employment, and other concerns where simply the word "marijuana" in the accusation is thought to be problematic.  In such cases, even though the charges themselves are small and even non-criminal, the potential consequences to the accused person can be enormous.  Special care needs to be taken in these circumstances to make sure that this small problem does not become a big problem.  Often times, if the issues are brought to the attention of the lawyer, the lawyer is able to work it out appropriately.  Failing to bring the issue to the attention of a lawyer, or simply going to Court and hoping for the best, can be a real roll of the dice, where your future plans are at stake.  It isn't worth it.

2- Criminal Possession of Marijuana (Penal Law Section 221.10)

The misdemeanor offense of Criminal Possession of Marijuana (PL 221.10) is more troublesome because of its status as a misdemeanor.  Typically, it is charged on the theory that the marijuana was burning and open in public view.  

For those with no prior criminal history and those with no prior marijuana ACDs, the ACD is frequently something that your lawyer can negotiate on your behalf on a marijuana desk appearance ticket.  There are, however, a variety of situations where the ACD on a marijuana desk appearance ticket can create some difficulties, even if temporary.  Non-citizens can experience immigration difficulties related to admission back into the United States or admission to certain other countries, people in the military or people who hope to be in the military can be delayed, various employment issues can develop, and certain background checks can pick up an "open" ACD.

IT IS TEMPTING TO ASSUME THAT A MARIJUANA DESK APPEARANCE TICKET IS NO PROBLEM, BUT...

It is extremely advisable to make sure you don't fit into one of these sorts of categories and simply show up to Court for your marijuana DAT just sort of hoping for the best.  It is far simpler and less expensive to deal with this sort of thing up front than it is to try to undo something that was hastily done because of the perception that it was "just a marijuana desk appearance ticket" and that the nice police officer promised that everything would be great.  When an ACD or plea to something creates some sort of difficulty in your life, you are not going to be able to call the police officer and ask him or her to fix it.  

The police officer who arrested you for possession of marijuana is not your friend or your lawyer.  He or she owes nothing to you and is not responsible in even the smallest way for the legal advice given.  You have no recourse against the police officer if the advice turns out to be wrong in your particular case.


BY: DON A. MURRAY, ESQ.

Don Murray is one of the founding partners of Shalley & Murray, a New York criminal defense law firm with offices in New York City and Westchester County. Mr. Murray is a member of the National Association of Criminal Defense Lawyers. He has been practicing criminal defense in New York for more than 20 years. Any questions or comments about this article or seeking representation on a Desk Appearance Ticket can be directed to him directly at 718-268-2171.