By Criminal Defense Attorney David Benowitz, a partner at Price Benowitz LLP.
In 2014, the District of Columbia legalized the sale and possession of small amounts of marijuana, up to two ounces, for recreational use. The accompanying cannabis boom led to many new businesses focused on providing marijuana and its associated products to the masses.
However, Congress used the authority it has over laws enacted in D.C. to override the District’s decision on legalization of sales and continued to prohibit the sale of even small amounts of marijuana.
The District of Columbia was created by the Residence Act in 1790, which authorized the creation of a federal district that would be home to the federal government.
As D.C. is not part of any state — though its land came from Virginia and Maryland — Congress retains the final say on any rules or laws made or passed in the District. It has a mayor and a city council, that govern the operation of the city, but these individuals and the laws they make are ultimately at the mercy of Congress.
This is where the relationship between recreational marijuana in D.C. and Congress’s final say intersect. Congress, unhappy with D.C.’s decision to legalize a substance that the federal government continues to classify as illegal, decided to override D.C.’s decision to legalize its sale for recreational use.
Therefore, the sale of marijuana for recreational use is still illegal in D.C.. Individuals with cannabis-based businesses have sought other, creative ways to avoid being arrested and charged, including doing “giveaways” where marijuana is given away in connection with the purchase of some item of nominal value.
“Law enforcement officials are not willing to overlook these attempts to skirt the the law and have begun to aggressively pursue individuals involved in such activities,” said David Benowitz, a Washington, D.C. drug charges attorney and partner at Price Benowitz LLP. “Individuals charged with crimes related to marijuana possession should seek out competent legal counsel to defend their rights, regardless of how they may feel about the arrest itself.”
It is important to remember that the possession of two ounces or less of marijuana in D.C. is still legal, so being charged with possession is highly unlikely. However, attempting to sell the drug, regardless of how the sale is structured, exposes the seller to increased potential penalties.