Missouri voters approved Amendment 3 on November 8, 2022. This amendment dramatically changes Missouri marijuana laws, effectively decriminalizing its use and expunging prior convictions. All the criminal law changes are buried in Amendment XIV, with page after page of details about medical marijuana, dispensary approval, dispensary regulation, etc. I will describe the substance of the changes to personal use as clearly and succinctly as possible.
How Missouri Amendment 3 Changes the Law
It is now legal to have 3 ounces or less of dried, unprocessed marijuana or its equivalent. “Equivalent” is a tricky term that I will discuss later. To be more precise, someone at least 21 years of age can now purchase, possess, consume, use, ingest, inhale, process, transport, deliver without consideration, or distribute without consideration 3 ounces or less of marijuana. I can only assume that this means at one time or as one course of action and that the amendment does not place a lifetime cap on marijuana use at 3 ounces. The delivery and distribution without consideration bits just mean that you can give someone marijuana for free, but you can't sell it without a license.
Amendment 3 allows for the personal use of 3 ounces of marijuana or its equivalent. As far as I can tell, however, nowhere in the amendment does it specify what the equivalent of 3 ounces of dried, unprocessed marijuana is. My guess is that MME, the standard used by the Missouri Department of Health and Senior Services for the purchase of medical marijuana, is what will apply.
Using that standard, 3 ounces equals approximately 85 grams, a little over 24 MMEs. For THC-infused products, 100 mg equals one MME. Gummies are often sold in tins of ten 10 mg gummies. So, if this standard is the one that applies, it should be legal to have 24 cans of gummies at one time. Please do not construe this as legal advice. You should get more definite information if you plan to purchase or possess a large amount of THC-infused product.
Exceptions to Personal Use
There are limitations to the possession and consumption of marijuana allowed by Amendment 3. A person under the age of 21 cannot legally possess or use marijuana. The punishment is only a civil penalty of a fine up to $100 and forfeiture of the marijuana, however. Four hours of drug education or counseling can take the place of the fine. This punishment is significantly less than the criminal penalties before the amendment.
Amendment 3 does not alter the law regarding the operation of any motor vehicle, train, aircraft, motorboat, or other motorized forms of transport under the influence of marijuana. More on that later. It also does not change laws about the consumption of marijuana while operating a motor vehicle or smoking marijuana while in a motor vehicle, even if you are a passenger. So far as I know, however, at the time of the amendment's passage, no laws specifically banned those activities. For instance, smoking in a moving vehicle would have been illegal because of possession laws; therefore, no specific law targeting that activity would have been necessary.
Consumption of marijuana in public is not permitted unless authorized by local authorities. Subsection 5 of Part 2 describes how jurisdictions may exercise local control to allow this to happen. We will likely see a patchwork of municipal ordinances that will make it challenging to determine where it is permissible to consume in public. In any case, the penalty is a civil fine of up to $100.
Regardless of local rules, smoking marijuana in a location where smoking tobacco is prohibited is not allowed. The same goes for possessing marijuana or accessories on the grounds of a public or private preschool, elementary or secondary school, institution of higher education, in a school bus, or on the grounds of any correctional facility. The amendment does not make new laws regarding these activities; it just upholds current laws' validity.
Amendment 3 does not require an employer to permit consumption or possession in the workplace or on the employer's property. It also allows an employer to punish an employee or refuse to hire or promote someone for working while under the influence of marijuana.
Property owners can prohibit or limit the consumption, cultivation, distribution, processing, sale, or display of marijuana, marijuana-infused products, and accessories on private property they own, lease, occupy, or manage. Interestingly, leases made after the effective date of the amendment may not prohibit a tenant from lawfully possessing and consuming marijuana except by smoking.
Possession of More Than 3 Ounces
Possession of up to twice the legal amount of marijuana (between 3 and 6 ounces) is punishable by civil penalties. The fines are up to $250 for a first offense, $500 for a second offense, and $1000 for third and subsequent offenses. The marijuana is subject to forfeiture in all cases. The fines can be paid through the performance of community service. This community service is valued at a rate of $15 per hour or the prevailing minimum wage, whichever is higher.
If the offender is under 21 years of age, the fine can be up to $250. It appears this is meant to be the case regardless of the number of offenses. The person may attend 8 hours of drug education or counseling in place of the fine.
No word is given on the punishment for possessing over 6 ounces. Previously, possession of more than 35 grams was a D felony. Six ounces is around 170 grams. So, did the amendment just raise the felony threshold from 35 to roughly 170 grams? As of November 2022, I don't know. It seems an absurd tightrope to walk, with 6 ounces of marijuana being a $250 fine and 6.001 ounces being a class D felony punishable by up to 7 years in prison. That prison sentence would, incidentally, be eligible for a petition to vacate and expunge, as long as the charge is for less than 3 pounds of marijuana. Is the felony level now 3 pounds? Who knows.
It is now legal to grow your own marijuana, provided you register for cultivation first. Technically, you can possess, transport, plant, cultivate, harvest, dry, process, or manufacture six flowering plants, six nonflowering plants over 14” tall, and six clones under 14” tall. The DHSS is to begin accepting applications for registration cards within sixty days of December 8, 2022. The cards will last one year and initially cost $100. The price will change based on the Consumer Price Index.
The plants and any marijuana produced over 3 ounces must be kept at one private residence in a locked space not visible by normal, unaided vision from a public space. If the plants are not in a locked area or if they can be seen from a public space with unaided vision, they can be confiscated, and a fine of up to $250 may be levied. No more than twice the allowable amount of plants can be kept at one residence at one time. In other words, two people living at the same address can both use their full allotment of plants.
It appears that the punishment for growing more than the allowable amount of plants, but less than twice as much, is the same as for possession, but this is unclear. What is clear is that the punishment for growing more than twice the number of plants is not listed, nor is the punishment for growing marijuana without a license. Maybe the legislature, in a fit of pique, will pass a law making both a class B felony not eligible for expungement.
Marijuana and Driving
The Limitations subsection lists the types of laws that the amendment cannot preclude, limit, or affect. Among these laws are those governing driving while intoxicated. In other words, just because marijuana is now legal in Missouri does not mean it is legal to drive while high.
The subsection makes the critical point that the mere presence of THC or THC metabolites in a person's system does not necessarily indicate they are intoxicated. The writers included this caveat, I assume, because law enforcement so often fails to make this distinction. Police officers sometimes make DWI marijuana arrests based on the mere fact that the driver has recently (or perhaps not so recently) consumed, without making the case that the driver is indeed intoxicated.
This confusion is understandable. Alcohol DWI law is well-established, with clear parameters for identification and testing. Field sobriety tests have been found to be a reasonably reliable indicator of alcohol intoxication, and chemical testing can establish a relatively precise level of blood alcohol. This blood alcohol level roughly corresponds to levels of intoxication. None of this is true for marijuana DWI law.
Many police officers are conversant with alcohol field sobriety tests, and most departments have at least one officer who is an “expert.” This is not true for marijuana field sobriety tests. These tests are often poorly executed and, therefore, not a reliable indicator of marijuana intoxication. Additionally, even when done well, there is no consensus that these tests are as accurate in determining intoxication as alcohol field sobriety tests.
Unlike alcohol chemical testing, no level has been established for the amount of marijuana in the blood that constitutes intoxication. In Missouri, a blood alcohol level of 0.08% or higher is statutorily considered driving with an excessive blood alcohol content. No such threshold has been established for marijuana, and it is doubtful that a scientifically valid one can be found.
So, when police officers pull someone over for a suspected marijuana DWI, they cannot directly test for an intoxicating level of THC in the blood. Instead, they are left to rely on possibly ineffective field sobriety tests with which they might not have adequately trained. This confusion has been a problem since before the passage of Amendment 3, and I suspect there will be many more potential marijuana DWI cases now. Hopefully, some clarity will be established regarding what constitutes marijuana intoxication and how to determine if someone is in that condition.
As a side note, current Missouri law requires that someone be operating a motor vehicle to be found guilty of DWI. The amendment uses the wording “operating or being in physical control of any motor vehicle.” This wording opens the door, I believe, to laws that allow people to be found guilty of marijuana DWI while sitting in a vehicle that is not running or possibly even being close to a vehicle that you have the keys for.
Consuming or Smoking in a Vehicle
The Limitations subsection does not establish new limitations. Instead, it “does not preclude, limit, or affect laws that assign liability relative to, prohibit, or otherwise regulate” a list of nine different types of laws. This list includes the consumption of marijuana while operating a motor vehicle or smoking within a motor vehicle while it is being operated. In other words, if there is a current or future law against either of these things, the amendment does not make them legal. The problem is, I don't think there are many, if any, laws against those two acts, at least at the time of passage.
The reason for that is that, before the passage of Amendment 3, possession of marijuana was illegal. If you were smoking in a moving vehicle, you would be charged with possession. There was no real reason to pass a separate law against smoking in a moving vehicle. The same goes for consuming marijuana while driving; you were charged with possession and probably DWI.
For either of these acts to be illegal, there will need to be either a pre-existing law or a new one will need to be made. The amendment does not limit the severity of punishments for new laws prohibiting these acts as it does for smoking in a public place. Theoretically, the state legislature could make them felonies. More likely, we will see a patchwork of different regulations or lack thereof. Smoking in a moving vehicle might be legal in some places, a small fine in others, and something you go to jail for in certain jurisdictions.
The Bottom Line
Missouri Amendment 3 allows residents 21 years of age or older to possess and cultivate a reasonable amount of marijuana. As long as you stay within these limits, don't sell marijuana without a license, don't drive or go to work high, don't give it to someone under 21, and don't consume it at a prohibited place like a school or jail, you should be okay. It will pay to stay informed, though.
Laws might be different in different places. They are likely to go through a period of adjustment on the edges, too, as some of the gray areas get worked out. Don't assume that the laws across the state are the same as in your hometown or county, especially regarding possession of more than 6 ounces or smoking while a passenger in a motor vehicle.
Amendment 3 is obviously a win for marijuana users, but it is still possible to run afoul of the law, especially if you mix marijuana and motor vehicles. I sincerely hope you can enjoy your newfound freedom with no hassles. If you get caught up in one of those gray areas, call Beerup Law at 636-940-1111, and let's see if we can work through it together.