Upcoming challenge to felony marijuana convictions in St. Charles, MO

St. Louis, Missouri (July 27, 2020) – Hundreds of felony marijuana possession convictions in jurisdictions across Missouri could be reduced to misdemeanor possession charges due to a legal challenge being brought before a St. Charles County court on August 5th.

The challenge (being brought by Attorney Charles Barberio of the People’s Counsel law firm of St. Louis) centers on the charging policies in several jurisdictions – including St. Charles County – which make a distinction between leafy marijuana and marijuana derivatives, such as wax, oils and gummies; that does not exist in state law but has been used to obtain felony convictions in those jurisdictions. 

Under current Missouri law, possession of less than 35 grams of marijuana is considered a misdemeanor, while possession of 35 grams or more is defined as a Class D felony. Misdemeanor possession, depending on the amount and number of offenses, carries a maximum penalty of fines of up to $2,000 and up to a year of jail time. Possession of 35 grams or more is considered a felony punishable by up to seven years of jail time and fines up to $10,000. 

Many courts and prosecuting attorneys’ offices in Missouri have made what may well be an erroneous distinction between derivatives and the leafy plant, seeking and winning felony possession convictions against those possessing less than 35 grams of derivatives. After extensive research into a number of felony convictions of people found guilty of possession of minor amounts of marijuana derivatives (including oils, dabs and gummy type snacks), Barberio and his colleagues believe the felony convictions were in error and have wrongly impacted the lives of those convicted. 

Barberio’s argument is supported by a 1976 decision (State of Missouri v. Randall 540 S.W.2d 156 (Mo. App. 1976)). “That ruling held that ‘hashish’, a resin derived from the marijuana plant, was in fact marijuana and in doing so acknowledged that the legal definition of marijuana includes all of its extracts, compounds and derivatives,” Barberio notes. “THC, one of the active compounds in marijuana, is accounted for under the definition of marijuana in any form. So, prosecutors winning felony convictions or bringing felony charges for possession of under 35 grams of marijuana derivatives certainly appear to be in error.”

Despite that, St. Charles County justifies their charging policy based on a semantic distinction: they charge possession of wax, oil, gummies etc, as possession of “THC” as opposed to possession of “marijuana.” THC – one of over 200 compounds contained in the marijuana plant, is the psychoactive compound that triggers the “high” associated with marijuana.

“There needs to be consistency in how this very common possession is charged throughout the state. We cannot have prosecutors in neighboring jurisdictions charging misdemeanors as felonies because of an inaccurate application of settled law. Missourians and people traveling through Missouri need to feel secure that when they possess small amounts of marijuana and marijuana derivatives they will not be wrongfully charged with a felony should they come into contact with law enforcement.”

A preliminary hearing in St. Charles County Court is scheduled for August 5th. Should the court uphold Barberio’s challenge, hundreds of felony drug possession convictions from across Missouri could be overturned or reduced to misdemeanors.

RELEVANT LAW AND STATUTE

579.015.  Possession or control of a controlled substance — penalty. — 1.  A person commits the offense of possession of a controlled substance if he or she knowingly possesses a controlled substance, except as authorized by this chapter or chapter 195.

  2.  The offense of possession of any controlled substance except thirty-five grams or less of marijuana or any synthetic cannabinoid is a class D felony.

  3.  The offense of possession of more than ten grams but thirty-five grams or less of marijuana or any synthetic cannabinoid is a class A misdemeanor.

  4.  The offense of possession of not more than ten grams of marijuana or any synthetic cannabinoid is a class D misdemeanor.  If the defendant has previously been found guilty of any offense of the laws related to controlled substances of this state, or of the United States, or any state, territory, or district, the offense is a class A misdemeanor.  Prior findings of guilt shall be pleaded and proven in the same manner as required by section 558.021.

  5.  In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provision of this chapter or chapter 195, it shall not be necessary to include any exception, excuse, proviso, or exemption contained in this chapter or chapter 195, and the burden of proof of any such exception, excuse, proviso or exemption shall be upon the defendant.

195.010.  Definitions. — The following words and phrases as used in this chapter and chapter 579, unless the context otherwise requires, mean:

 (24)  “Marijuana”, all parts of the plant genus Cannabis in any species or form thereof, including, but not limited to Cannabis Sativa L., Cannabis Indica, Cannabis Americana, Cannabis Ruderalis, and Cannabis Gigantea, 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.  It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination;

About Charles Barberio

Charles Barberio is a criminal defense attorney with The People’s Counsel.  Charles practices in jurisdictions all across Missouri, including St. Charles County.  Charles has developed a distinguished track record of winning at trial and he mentors many young lawyers in regard to their own trial practice.  

About The People’s Counsel

The People’s Counsel is a Clayton, Missouri headquartered law firm comprised of trial attorneys with significant experience in criminal defense involving violent crime, drug offenses, traffic matters, employment discrimination and more. The firm has cultivated a team atmosphere that allows our clients to receive the benefits of all of the lawyers in the firm, not just the one working their case.  The firm has an extensive record of success before juries in venues across Missouri and Illinois. The People’s Counsel can be reached at 314-669-6464.