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Recreational marijuana is legal in NY: Could the feds still arrest you?

May 13, 2021

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New York lawmakers legalized recreational marijuana for adults 21 and up earlier this year, but nothing has changed on the federal level.

The drug is just as illegal as ever as far as federal law is concerned.

That means even if New Yorkers follow all the state rules when it comes to using pot, they could still face federal charges, attorneys said. But that’s unlikely as long as you’re not breaking New York rules on the drug or trying to transport it across state lines.

Federal officials have been largely deferring to state governments on marijuana legalization in recent years, said Anthony Kuhn, managing partner at Tully Rinckey in Buffalo.

“They’re not at any point conceding that it is in fact legal,” Kuhn said. “They’re not enforcing federal law as long as it doesn’t involve large quantities of marijuana or interstate commerce or anything like that.”

In New York, adults are allowed to possess and use up to 3 ounces.

Even after the Trump administration rescinded an Obama-era memo that deemphasized marijuana prosecutions in states that legalized the drug, not much actually changed.

That doesn’t mean the risk is zero.

The Coast Guard, for example, routinely patrols waters in Lake Ontario and the St. Lawrence River. It’s not uncommon for the guard to board boats and check for smuggling or other illegal activity, Kuhn said.

If they find marijuana, the people on board could be charged.

And remember: Federal law enforcement agencies have jurisdiction everywhere, not just on federal property. You don’t have to be on federal land to get in trouble with federal agents.

The same federal risk applies to businesses as everyday users, attorneys said. Open a retail pot shop once it’s allowed in New York and you’re technically breaking federal law.

“If the feds really wanted to, they could come in and arrest you on federal crimes,” said Jason Klimek, an attorney who focuses on marijuana business law with Woods Oviatt Gilman in Rochester. “They could. They don’t typically, but they absolutely could.”

The Constitution itself establishes federal law as the winner in case of a conflict between federal and state statutes, Klimek added.

Even the New York marijuana law includes language noting that it doesn’t exempt anyone from federal law or aim to block enforcement of federal law.

Kuhn said he expects federal agencies will eventually develop policies for how to handle individuals they catch with marijuana in New York. It’s too early to know the details, but Kuhn said he expects the amount of the drug will be key in how those agencies handle those cases.

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