Norton Hare, LLC, has decades of experience in defending people charged with possession of marijuana in Kansas, particularly Johnson County, Douglas County, Wyandotte County and all of the surrounding counties as well as the municipal city courts within those counties. Kansas laws concerning marijuana are harsh and, as of July 1, 2012, they are getting harsher. Every case is different, and the information below may or may not apply to any specific case. This material is for informational and research purposes only and does not constitute legal advice. You should definitely check with an attorney for the latest information about Kansas’ marijuana possession laws and how those laws may be applied to any circumstances you may find yourself in.
“Marijuana” means all parts of all varieties of the plant Cannabis whether growing or not, the seeds thereof, the resin extracted from any part of the plant and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin. Marijuana is often referred to in Kansas law as THC, or tetrahydrocannabinol.
If you are charged in Kansas with possession of marijuana, possession with intent to sell or distribute marijuana, cultivation of marijuana or the possession of paraphernalia, you should contact an experienced criminal defense attorney at Norton Hare, LLC. As set out below, if charged with a misdemeanor or felony marijuana charge in Kansas the stakes are high and consequences are serious. A skilled lawyer can make a difference.
Possession of Marijuana for Personal Use
Possession of marijuana for personal use means exerting control over, or having constructive possession of, marijuana for purposes other than to distribute it to other people. Under the laws of Kansas, possession of marijuana for personal use may be charged as a misdemeanor or a felony depending on the circumstances. A first time charge of possession of marijuana in Kansas is a Class A misdemeanor, which means that a conviction is punishable by up to 12 months in jail and a $2,500 fine. However, a first time offender may be eligible for diversion.
Diversion for a first-time possession of marijuana charge in Johnson County, and the cities within it, usually means that you have to fill out a diversion application, obtain a substance abuse evaluation and sign a diversion agreement. The diversion agreement for a possession case requires that you stipulate to the charge against you, that you stay out of trouble for the duration of the agreement, that you attend any treatment or classes recommended by the evaluation, and that you report to a diversion monitor. If you successfully comply with all of the diversion requirements, the prosecutor agrees to dismiss the charges against you and there is no conviction on your criminal record. If you violate the terms of the diversion agreement, it will be revoked and you will be automatically convicted. The fines, fees and court costs for a possession of marijuana diversion are generally going to be somewhere between $250 and $500. There will also be costs involved with attending any treatment or classes recommended by the evaluation and the cost or urinalysis testing. Under some diversion agreements, or if required by your evaluation or diversion monitor, you may be placed on the Color Code system. While on Color Code you will be given a color. You have to call a phone number every day after 6:00 p.m. A recorded message will tell you what the color for the next day is. If your color is called that evening, you have to go submit a urine test the following day. Urine tests costs about $20 a piece. You can expect to take 2 to 4 urine tests per month while on the Color Code system while on diversion or probation for possession of marijuana. Even if you are not on the Color Code, you will be subject to random UA’s while on diversion.
In addition to the costs associated with diversion, there is a $400 lab fee incurred every time the Kansas Bureau of Investigation or Johnson County Crime Lab tests for the presence of marijuana. So, in addition to the fines, fees and court costs associated with a diversion or conviction for possession of marijuana, there is likely to be a $400 lab fee. So, it is not cheap.
If a person is convicted of possession of marijuana in Kansas for the first time, it is a misdemeanor. Again, a Class A misdemeanor carries a potential of up to 12 months in jail and a $2,500.00 fine. However, a person convicted of a misdemeanor possession of weed charge is not likely to get jail time. Generally, courts will grant probation. So, the court will issue a jail sentence but grant probation from that sentence. As long as the offender complies with all of the requirements of probation, he or she will not have to serve the jail sentence. But, if the person violates probation by dropping a dirty UA for drugs or alcohol, misses UA’s, gets in further trouble, etc., a motion to revoke probation will be filed by the prosecutor and the court may take probation away and send the person to serve the jail sentence (or put them on house arrest or issue other sanctions for the violation). The fine is likely to be anywhere from $0 to $500, plus court costs and the lab fee. The court will require a substance abuse evaluation and that the convicted person follow the treatment recommendations in that evaluation. While on probation, the Color Code system is likely to be imposed. Probation for possession of marijuana is usually for 12 months.
Possession in Overland Park, Kansas is, of course, different than other places. A possession of marijuana conviction in Overland Park Municipal Court requires a mandatory minimum of 48 hours in custody, a $750 fine and a year of probation. So, in Overland Park, possession requires at least 2 days of being locked up before probation will be granted.
A second conviction for possession of marijuana for personal use in Kansas can be filed as a felony or misdemeanor. If a person has a prior conviction for possession of marijuana, and gets charged with possession again it can be charged as a felony. A felony possession of marijuana conviction is a level 5 Felony on the Drug Sentencing grid. A conviction for a Level 5 felony carries between 10 and 42 months in prison depending on the person’s prior criminal history. That is prison, not the local county jail. However, as long as the person doesn’t have any felonies on his or her record, it is presumed under the Kansas Sentencing Guidelines that he or she will be granted probation. If the person’s criminal history includes a person felony, then the judge may or may not grant probation. If the person’s criminal history includes two or more person felonies, it is presumed that they will go to prison. In order to get charged with a felony possession of marijuana in Kansas, there must be a prior conviction for possession of marijuana. Diversion does not result in a conviction so that won’t be used to enhance a charge to a felony. A probation for a felony possession charge is about the same as probation for a misdemeanor in most cases. A felony conviction for possession of marijuana also carries a fine of up to a maximum of $100,000. However, there is not likely to be a very high fine, but there will be court costs, lab fees, etc.
Defenses in a Kansas Possession of Marijuana Case
The defenses to a charge of possessing marijuana are many and varied. First, the government has to prove that you possessed (i.e., had control over) the marijuana. It is not enough that you are in close proximity to the marijuana. There has to be evidence that you knew it was there and were in control of the marijuana. The police finding marijuana in your car may be some circumstantial evidence that the marijuana was in your possession. But, it may be a defense that the car does not belong to you, is titled in someone else’s name, that the marijuana was found under the passenger seat or somewhere else in the car as opposed to the driver’s seat, etc. There has to be proof beyond a reasonable doubt that the person accused knew the pot was there and that they possessed it. The prosecutor will attempt to introduce evidence from the same area where the pot was found that is clearly property of the person who is accused, like mail addressed to the person, school or other I.D., books, backpacks, etc.
Many times a possession of marijuana charge will rise or fall on constitutional challenges to the search and seizure associated with the discovery of the marijuana. Defense counsel will want to look at the constitutionality of the stop of the vehicle or the stop of the person, whether there was consent to search or another exception to the requirement that the police obtain a warrant before they conduct a search, and whether any confessions or admissions taken from the defendant were done constitutionally. If there was no legal reason to stop the car or detain a person, all of the evidence obtained thereafter may be suppressed. If law enforcement conducted a search without a sufficient legal basis, all of the evidence may be suppressed and the case dismissed. Often, these legal challenges are the key to a possession of marijuana charge in Kansas.
One thing to be aware of under Kansas law is that the appellate courts have found that if an officer says he can smell the odor of burnt marijuana coming from a car, he has probable cause to conduct a search with or without any other permission to do so. Of course, an odor is subjective and is very hard to disprove. You can’t tell whether the officer did, in fact, detect the odor of burnt marijuana from reading a report or watching a video. These days it is a very common occurrence for police officers to state that they detected the odor of burnt marijuana and conduct a search on that basis alone.
Possession of Marijuana with Intent to Sell
Possession of marijuana with the intent to sell is a felony in Kansas. In fact, the law says that it is a felony to possess marijuana with the intent to “distribute” it. So, even if a person did not sell or intend to sell marijuana, but only share it with a friend that is distribution and they can be charged with a serious felony. Passing a joint to a friend is technically distribution.
In order to prove that a person possessed marijuana with intent to sell it, the government has to prove more than that a person possessed marijuana. They have to prove that the person possessed it with the intent to distribute it. Evidence of the intent to distribute can include the amount of marijuana found. In fact, possession of 450 grams or more of marijuana creates a rebuttable presumption that the marijuana was intended for sale. Even if the amount is less than 450 grams (roughly a pound), the state can call a police officer with experience in narcotics enforcement to testify that a particular quantity of weed is more than an individual could consume for personal use purposes. Of course, the defense to that is that there is a reason that people belong to Costco and Sam’s Club – because buying in bulk is cheaper. Thus, the State will also attempt to introduce evidence of paraphernalia for the packaging marijuana like individual plastic bags, gloves, and scales for weighing marijuana. Records of buying and selling drugs are important evidence in these cases and the police will seize cell phones in an attempt to find a record of text messages concerning drug sales and arrangements to meet and buy or sell drugs. They will also look for written records of drug transactions. In many cases, the police will have used a confidential informant to arrange drug purchases with marked bills and while wearing a recording device. These are usually regular people who have gotten arrested and are setting up their acquaintances in order to try to get out of their own cases. Law enforcement also has police officers working undercover to set up transactions. Thus, there will be audio and video evidence of people buying and selling drugs.
Possession with Intent is a felony in Kansas. The amount of marijuana possessed or sold controls the severity level of the felony. Less than 25 grams is a Level 4 felony. 25 grams to 450 grams is a Level 3 severity level felony. 450 grams to 30 kilograms is a Level 2, and 30 kilos or more is a Level 1. If convicted of possession with intent to sell marijuana the court must sentence the offender to prison even on a first offense. Again, that means the big house, not the county jail. A Level 4 drug felony carries between 14 and 51 months in prison. A Level 3 drug felony carries between 46 and 83 months in prison. A Level 2 carries between 92 and 144 months. A Level 1 is 138 to 204 months in prison. The fine can be up to $500,000.00. How many months a person is sentenced to depends on the severity level of the drug felony and the person’s criminal history.
If the person has no prior person felonies on his or her criminal history and is convicted of a Level 4 drug felony (possession with intent to sell less than 25 grams of marijuana) they are in a “Border Box” which under Kansas law means that the sentence is “presumed imprisonment” but that the court can grant probation if the court finds that an appropriate treatment program exists which would be more effective than prison in reducing recidivism, that the offender can be admitted to the program reasonably soon, and that the nonprison sanction will serve community safety interests by promoting offender reformation. The court can order that the person serve up to 60 days in jail before being placed on probation. While on probation, the terms and condition are likely to be as described above, including drug treatment and frequent urine tests.
Possession of marijuana with the intent to sell within 1,000 feet of a school is a Level 3 felony and carries 46 to 83 months in prison.
The government also likes to charge people in possession of quantities of marijuana in Kansas with the failure to affix tax stamps to their pot. Kansas has a tax on illegal drugs and you are supposed to go buy the tax stamp and put it on your drugs. Of course, no one does this. So, this is an extra charge to tack on and it is a Level 10 felony carrying between 5 and 13 months in prison. Sometimes the Kansas Department of Revenue will come after people for the payment of the taxes after they are arrested and the taxes are heavy.
Cultivation of Marijuana in Kansas
Cultivation of marijuana means growing 5 or more marijuana plants containing THC (tetrahydrocannabinol). 4 or less plants and the charge is likely a misdemeanor. 5 or more plants and it is a felony, punishable by prison time and probation may or may not be an option. The severity level of the felony cultivation charge depends on the number of plants. Between 5 and 49 plants is a Level 3 drug felony and is presumptive prison, carrying between 46 and 83 months in prison depending on criminal history. Over 50 plants is a Level 2, and over 100 plants is a Level 1. In addition to plants, law enforcement looks for hydroponic growing equipment like lights to make a case for cultivation. If they suspect a grow operation in a house or building they will look at the electric bills and other utilities to prove that there was cultivation of marijuana.
Possession of Paraphernalia
Usually where there is marijuana found, there is paraphernalia associated with that marijuana found and possession of paraphernalia in Kansas is a separate charge. Paraphernalia can be a baggie in which the marijuana was carried, a pipe, rolling papers, even a lighter. Possession of paraphernalia for personal use is a misdemeanor, punishable by up to 12 months in jail and a $2,500 fine. Possession of paraphernalia in Kansas for cultivating or distributing drugs can be a felony.
“Drug paraphernalia” means all equipment and materials of any kind which are used, or primarily intended or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance. Under Kansas law, “Drug paraphernalia” includes:
- Kits used or intended for use in planting, propagating, cultivating, growing or harvesting any species of plant which is a controlled substance or from which a controlled substance can be derived;
- kits used or intended for use in manufacturing, compounding, converting, producing, processing or preparing controlled substances;
- isomerization devices used or intended for use in increasing the potency of any species of plant which is a controlled substance;
- testing equipment used or intended for use in identifying or in analyzing the strength, effectiveness or purity of controlled substances;
- scales and balances used or intended for use in weighing or measuring controlled substances;
- diluents and adulterants, including, but not limited to, quinine hydrochloride, mannitol, mannite, dextrose and lactose, which are used or intended for use in cutting controlled substances;
- separation gins and sifters used or intended for use in removing twigs and seeds from or otherwise cleaning or refining marijuana;
- blenders, bowls, containers, spoons and mixing devices used or intended for use in compounding controlled substances;
- capsules, balloons, envelopes, bags and other containers used or intended for use in packaging small quantities of controlled substances;
- containers and other objects used or intended for use in storing or concealing controlled substances;
- hypodermic syringes, needles and other objects used or intended for use in parenterally injecting controlled substances into the human body;
- objects used or primarily intended or designed for use in ingesting, inhaling or otherwise introducing marijuana, cocaine, hashish, hashish oil, phencyclidine (PCP), methamphetamine or amphetamine into the human body, such as:
- Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads or punctured metal bowls;
- water pipes, bongs or smoking pipes designed to draw smoke through water or another cooling device;
- carburetion pipes, glass or other heat resistant tubes or any other device used or intended to be used, designed to be used to cause vaporization of a controlled substance for inhalation;
- smoking and carburetion masks;
- roach clips, objects used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in the hand;
- miniature cocaine spoons and cocaine vials;
- chamber smoking pipes;
- carburetor smoking pipes;
- electric smoking pipes;
- air-driven smoking pipes;
- ice pipes or chillers;
- any smoking pipe manufactured to disguise its intended purpose;
- wired cigarette papers; or
- cocaine freebase kits.
Many common, legal, household items can be treated as paraphernalia. The law in Kansas says, in determining whether an object is drug paraphernalia, a court shall consider,
- Statements by an owner or person in control of the object concerning its use;
- prior convictions, if any, of an owner or person in control of the object, under any state or federal law relating to any controlled substance;
- the proximity of the object, in time and space, to a direct violation of Kansas’ drug laws
- the proximity of the object to controlled substances;
- the existence of any residue of controlled substances on the object;
- direct or circumstantial evidence of the intent of an owner or person in control of the object, to deliver it to a person the owner or person in control of the object knows, or should reasonably know, intends to use the object to facilitate a violation of the Kansas drug laws;
- oral or written instructions provided with the object concerning its use;
- descriptive materials accompanying the object which explain or depict its use;
- national and local advertising concerning the object’s use;
- the manner in which the object is displayed for sale;
- whether the owner or person in control of the object is a legitimate supplier of similar or related items to the community, such as a distributor or dealer of tobacco products;
- direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise;
- the existence and scope of legitimate uses for the object in the community;
- expert testimony concerning the object’s use;
- any evidence that alleged paraphernalia can or has been used to store a controlled substance or to introduce a controlled substance into the human body as opposed to any legitimate use for the alleged paraphernalia; or
- advertising of the item in magazines or other means which specifically glorify, encourage or espouse the illegal use, manufacture, distribution or cultivation of controlled substances.
If you have been arrested for possession of marijuana in Kansas, or any associated drug charges, please call the criminal defense lawyers at Norton Hare, LLC immediately.