Many of our clients face charges for possession of illegal drugs, or possession of prescription drugs without a valid prescription. These charges can be brought in district or superior court, and can be brought as violations, misdemeanors, or felony charges, depending on the type of drug and the overall circumstances of the case.
Marijuana Possession and Decriminalization
Marijuana and hashish are the only illegal drugs for which simple possession of small quantities has been "decriminalized" in New Hampshire for many defendants. This is the case under a new law that took effect on September 16, 2017.
"Decriminalized" does not mean that it is legal to possess marijuana. It is still illegal under both state and federal law. It's still illegal, but it will be a non-criminal offense - a so-called "Violation." For example, running a red light or reckless driving are non-criminal violation offenses. But it does mean that the defendant will not be arrested and will not get a criminal record for possessing small amounts of marijuana.
The decriminalization law, which you can view in its entirety here, is very complicated. Here are a few major points:
- For those 18 and over, 1st, 2d offense possession of up to ¾ ounce of marijuana is a non-criminal violation with a $100 fine.
- If its a decriminalized offense, the police cannot make an arrest. They must serve a summons, with paperwork allowing the defendant to pay the fine by mail.
- Possession of "marijuana-infused products" such as edible products, drinks, ointments, tinctures is also decriminalized but only for those 21 and over -- and only if its a regulated product in its original labeled packaging purchased in a State that has legalized such products -- and only if it contains 300 milligrams or less of tetrahydrocannabinol.
- Possession of marijuana or edibles by a person under 18 is a misdemeanor which will be prosecuted in juvenile court as a juvenile delinquency petition.
- Possession of more than 3/4 of an ounce of marijuana, or more than 5 ounces of hashish (see below) will remain a misdemeanor for all defendants. We expect that most of these cases will be charged as class A misdemeanors, which means the possibility of a jail sentence up to a year, up to 2 years of probation, and up to a $2000.00 fine.
- A $100 fine might sound manageable but don't forget about the Collateral Consequences, discussed below. If you or your loved one loses her student loans for a year because of a violation conviction for possession of marijuana, or loses 2d Amendment rights, that $100 fine is not going to seem like such a good deal after all...
And don't forget that possession with intent to distribute - which is often charged where the defendant possesses a substantial amount of marijuana or marijuana separated into several different packages - is a felony. Felony drug cases are discussed on this page on our site.
Possession of Hashish
Again, possession of small amounts of hashish has been decriminalized in most cases. Prosecutions for possession of hashish are very rare, although it may be nothing more than a matter of semantics. In our practice, we see clients frequently arrested for possession of compounds such as "butane honey oil." Like hashish, these are solid compounds made out of THC and other ingredients. However, nobody calls it hashish anymore.
Possession of Other Drugs
Possession of any other drug, whether an illegal drug or a controlled drug, will generally be charged as a felony. Possession of cocaine, heroin, fentanyl, LSD, MDMA / ectacsy / "molly" -- these are all felonies in NH.
The potential penalties vary widely, based on factors such as the weight involved, the number of times that drugs were possessed or sold, the number of "co-defendants" (people charged in the same criminal enterprise or conspiracy), whether the client has a prior drug conviction, whether the offense took place in a school zone, and many other considerations.
Just to give one example: a person charged with possession of less than one gram of heroin faces a felony prosecution with a maximum sentence of 7 years in prison and a $100,000.00 fine -- if none of the potential aggravating factors apply. An aggravating factor can double the maximum sentence. The sentencing law for drug offenses in NH is exceedingly complex.
NH does not generally use "mandatory minimum" sentence laws for drug charges. This means that in most cases, a person charged with felony possession or distribution of narcotics can face anything from a diversion program (no conviction), to probation and treatment, to a sentence to spend several months in a county house of correction, to being sentenced to serve many years in the NH State Prison.
Loss of Driver's License for Possession of Drugs in Vehicle
Finally, a person convicted of "Possession of Drugs in a Motor Vehicle", or "Transportation of Drugs", faces a mandatory minimum 60 day loss of license as well as the possibility of fines and jail if charged as a class A misdemeanor. The maximum license suspension under the law for possession of a controlled drug in a motor vehicle is two years. This law will generally not apply if the defendant faces a decriminalized charge for possession of marijuana or hashish.
State court drug charges are prosecuted by local police departments or regional prosecutors if a misdemeanor in district court; or by County Attorney Offices if a felony in Superior Court.
Collateral Consequences of Drug Charges
A drug conviction, of course, can be very detrimental to a person's career, or ability to get a job, or ability to keep a job. However, there are other potential consequences that many people are not aware of. For example, a drug conviction, even for simple possession of a small amount of marijuana, can disqualify a college student from receiving FAFSA student loans for one year. This is even true for possession of small amounts of marijuana or hashish in New Hampshire, which has been decriminalized for most defendants, but is still illegal.
Further, drug convictions, even for a decriminalized offense such as possession of small amounts of marijuana, can cause the defendant to lose his or her 2d Amendment right to possess firearms under federal law. It is prudent to consult with an experienced drug defense lawyer before making any decisions, even if a prosecutor or someone else tells you that you or your loved one could plead guilty and receive nothing more than a fine.
Possession of Controlled Prescription Drugs without a Prescription
It is a felony in NH to possess any controlled drug -- even if not a narcotic controlled drug -- without a valid prescription. Many of our clients are shocked to hear that it can be a felony to possess controlled drugs that are not mind-altering, not habit-forming, and not particularly harmful to a person's health. That is the law.
However, prosecutors frequently charge these offenses as misdemeanors. During the plea bargaining process, prosecutors frequently reduce these charges to misdemeanors to facilitate a settlement ("plea bargain").
It is a myth that it is a crime to possess controlled drugs outside of their original container. That used to be the law in NH, but the legislature repealed that provision. That being said, it's safer to carry controlled drugs in the original container, in order to easily prove that the person possessing the drugs has a lawful prescription.