In the midst of another major arrests at the pop-up marijuana event this past Saturday (June 17, 2018) in the NE DC where about thirty vendors were arrests, the legality of these events certainly has been put to the test.

The vendors and the event coordinators have pushed the limits of law and in effect have forced the narcotic task force to intervene and make arrests. In the Saturday’s events three weapons were also seized which will heighten the DC police scrutiny of these events.

At the heart of promulgation of these events is the DC decriminalization Statute that for some may have been misconstrued.

The Statute specifically provides in the pertinent part:

It is unlawful for any person knowingly or intentionally to manufacture, distribute, or possess, with intent to manufacture or distribute, a controlled substance. Notwithstanding any provision of this chapter to the contrary, it shall be lawful, and shall not be an offense under District of Columbia law, for any person 21 years of age or older to: 

(A) Possess, use, purchase, or transport marijuana weighing 2 ounces or less;

(B) Transfer to another person 21 years of age or older, without remuneration, marijuana weighing one ounce or less;

(C) Possess, grow, harvest, or process, within the interior of a house or rental unit that constitutes such person’s principal residence, no more than 6 cannabis plants, with 3 or fewer being mature, flowering plants; provided, that all persons residing within a single house or single rental unit may not possess, grow, harvest, or process, in the aggregate, more than 12 cannabis plants, with 6 or fewer being mature, flowering plants;

(D) Possess within such house or rental unit the marijuana produced by such plants; provided that, nothing in this subsection shall make it lawful to sell, offer for sale, or make available for sale any marijuana or cannabis plants.

Moreover the Statute specifically carves out an exception for distribution of marijuana for the first time offenders and when the amount seized is less than ½ pound where with any other substance distribution penalties start from five years potential incarceration and up:

Except that upon conviction of manufacturing, distributing or possessing with intent to distribute ½ pound or less of marijuana, a person who has not previously been convicted of manufacturing, distributing or possessing with intent to distribute a controlled substance or attempting to manufacture, distribute, or possess with intent to distribute a controlled substance may be imprisoned for not more than 180 days or fined not more than the amount set forth in § 22-3571.01 or both;

The pop-up events as well as the gift economy online retailer have tested the limits  of the exception in the Statute “without remuneration.”

Although clearly the drafter’s of the Statute did not want to criminalize transfer and gifting of small (less than ounce) amount, there is no intent or indication from the legislative history that the drafters sought to carve an exception for open distribution of marijuana by professional vendors under the disguise of without remuneration or gifting.

It is clear from appearance, conduct, evidence, packaging, and the paraphernalia seized at these events that the pop-ups are open distribution centers with side gifts and verbal disclaimer to legitimize or to attempt to legalize conduct.   However the totality of the evidence if presented coherently and with the right set of facts, with dispositive and accurate drug test results – together can very much result in convictions rather than acquittals for those arrested.

The last mass arrests in DC at the XO Lounge did result in the government dismissing all those cases for lack of prosecution. It is unclear if the evidence seized at the most recent arrests will meet the threshold needed for criminal prosecution and beyond a reasonable doubt.

It is clear however that these events will be targeted by the narcotics task force as the venue, conduct, and the disposition of these events cannot meet the threshold for legality under the current Statutory model.

For more information on this topic refer to our DC Drug Possession Lawyer page or contact us to schedule an intake appointment.