In what may signal a new office policy, the D.C. U.S. Attorney’s office is balking at reducing possession with the intent to distribute marijuana charges (“PWID”) into simple possession.

In D.C. Superior Court, defendants can be charged with either PWID marijuana (Possession With the Intent to Distribute) or simple possession. Both are misdemeanors, carrying a maximum of 180 days. So what’s the difference?

With simple possession, a defendant is eligible for diversion (32 hours of community service) or §904.01(e) treatment (expungement of your arrest record). With PWID, you can’t do community service and aren’t eligible to have your arrest record automatically erased under Section 904.

In the past, with a first offenders, or minor players, PWID’s were routinely broken down into simple possessions – but not any more. Now the government is claiming that Justice Department policy requires them to go forward on the “most serious readily provable charge.” Maybe so. But that has been the official policy for the past 25 years, and it never prevented reducing PWID MJ to simple possession.

What can a defendant do if the prosecutor won’t budge? First, try the case. Many PWID cases don’t hold up. Often the government assumes that if a defendant has more than a few grams of weed, he intends to sell it. But where’s the evidence?

There are also other types of diversion – Drug Court or Mental Health Community Court – which do result in a dismissal, although the requirements are more restrictive than normal diversion.

Diversion and §904.01(e) were designed to give first-time offenders or other small-time defendants a chance to do good and keep their records clean. Insisting on PWID defeats Congress’ intent.

Categories: 904.01(e), PWID

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