Legal Recreational Marijuana: State Law Vs. Federal Law

Aug 31, 2017 | Blog, Legal Tips

What you need to know about the conflict between Nevada and federal marijuana laws

Even though Nevada recently started selling recreational marijuana over the 4th of July weekend, the act of buying, selling, cultivating, distributing, and transporting marijuana is still illegal under federal law. That fact may have you wondering: Can you still get busted for buying recreational marijuana? Will the FBI seriously come knocking on your door for your small homegrow? What happens if they do? This article provides some insight on these and other issues related to Nevada versus federal marijuana laws.

Nevada’s recreational marijuana provisions

As of 2017, adults 21 years and older may do the following:

  • Possess up to one ounce of marijuana.
  • Smoke in a private home, yard, or porch, but not in public places like casinos or sidewalks.
  • Grow six plants per person and up to 12 plants per household, so long as the home is at least 25 miles away from the nearest licensed retail facility (i.e. dispensary).

Federal marijuana provisions

Under the federal Controlled Substances Act, marijuana is a Schedule I controlled substance. This means, like heroin and LSD, the federal government considers marijuana as having a “high potential for abuse and the potential to create severe psychological and/or physical dependence.” In other words, the federal government does not recognize marijuana to have any social or medical value.

As such, federal agencies continue to prosecute against marijuana-related activities. These activities usually include the following:

  • Distributing marijuana to minors.
  • Transporting marijuana across state lines.
  • Growing marijuana on public lands.
  • Marijuana possession on federal property.
  • Funding criminal activity with marijuana revenue.

Upon being prosecuted and convicted for a marijuana-related crime, the punishment is very steep. For instance, growing 100 plants carries a minimum penalty of five years in prison.

Does the federal government have authority to prosecute in states that legalized marijuana?

The answer is yes. Even with a conflict between state and federal laws, the Supreme Court of the United States issued a ruling in 2005 that allowed the federal government to criminalize all forms of marijuana, regardless of whether a state legalized it for medicinal or recreational use.

This does not mean the government will actually prosecute. In 2013, the Department of Justice issued a policy of deprioritizing medical marijuana. The policy assured legal users, dispensaries, and growers that the federal agencies would not seek to prosecute them for violating federal marijuana laws. Other federal agencies’ policies were likewise reassuring: In 2014, the Treasury Department issued guidelines to facilitate banking with marijuana industry players.

Current policy statements, however, indicate the federal government will now seek to ramp up efforts to shut down states’ legal recreational marijuana facilities. It is unclear to what extent the federal government has now expanded its prosecution efforts, but the fact the threat is there means dispensaries and cultivators can no longer rest easy. This policy will likely not have much effect on homegrows or recreational users, simply because there are too many to prosecute.

Most likely, if the government did seek to enforce against homegrows, it would issue cease and desist letters first. Finding and writing a cease and desist letter to a homeowner or even a registered marijuana company would be easy to implement. Compliance with the government’s demands would also probably be very forthcoming: Shut down within 30 days, or face criminal prosecution and asset forfeiture.

Bailing out if charged with a federal crime

If you ever were unfortunate enough to find yourself charged with a federal marijuana crime, you can post a federal bail bond in much the same manner as posting bail in state criminal court. To post a bond, the court must order and approve the bond amount and type. Bonds can be in the form of cash, sureties, property, payable to the U.S. District Court. You can access pretrial release and appearance bond forms through the United States Courts website.

Questions? Need help posting bail? Contact us at 8 Ball Bail Bonds. We are able to assist you 24/7 and offer free consultations.