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Erroneous felony marijuana convictions in MO to face challenge: No legal distinction exists between leaves and derivatives

An untold number of people convicted of felony drug possession by courts throughout Missouri may soon see those convictions challenged and reduced to misdemeanor marijuana possession.

At the root of the problem, many jurisdictions make a distinction between leafy marijuana and marijuana derivatives (such as oils and gummy type snacks), which do not exist in the law, but have been used to obtain felony convictions in courts across Missouri.

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 marijuana possession, depending on the amount and number of offenses, carries a maximum penalty of fines of up to $2,000 and as much as 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 by seeking and winning felony drug convictions against those possessing less than 35 grams of derivatives.

Simply put, less than 35 grams of marijuana is a misdemeanor. Under 10 grams, with no prior drug convictions, you can’t even get jail time – after that, any other drug or marijuana possession of more than 35 grams is considered a Class D felony punishable by two to seven years in jail and up to a $10,000 fine. And a felony conviction on your record has serious implications on your rights to vote, own firearms or serve on a jury. Obviously, it can also be devastating from an employment standpoint.

My research has found no distinction between how cannabis derivatives and the marijuana leaf are actually viewed under the law. Moreover, I uncovered a 1976 decision (State of Missouri v. Randall, 540 S.W.2d 156 (Mo. App. 1976)) that supports my contention. In a nutshell, that ruling held that “hashish” was in fact marijuana and in doing so acknowledged that the legal definition of marijuana includes all of its extracts, compounds and derivatives. THC, one of the active compounds in marijuana, is accounted for under the definition of marijuana no matter how you slice it; edible, oil, wax, butter, dab or whatever. So prosecutors winning felony convictions or bringing felony charges for possession of under 35 grams of marijuana derivatives certainly appear to be in error.

I’m working with my fellow attorneys at The People’s Counsel law firm on a challenge to the possibly erroneous felony convictions. If successful, the challenge would eventually reduce a substantial number of felony possession convictions of small amounts of derivatives to misdemeanors.

Removing a felony conviction from someone’s record can be a life-changing event for that person. Misdemeanors are not uncommon, but being a convicted felon can have consequences on your life, and in this case it appears to be unjust.


The attorneys at The People’s Counsel have been recognized by Super Lawyers, The National Trial Lawyers and others. Contact our team for a free consultation at 314-669-6464 or at thepeoplescounsel/contact.

The People’s Counsel, headquartered in Clayton, Missouri, is a 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 an extensive record of success before juries in venues across Missouri and Illinois.

Charles Barberio is a criminal defense attorney with a well-defined track record of winning at trial. He has accumulated dozens of not guilty verdicts over the past five years. Some of his committees and honors include previously serving as criminal chair elect for the Bar Association of Metropolitan St. Louis, Top 40 Lawyers Under 40 and Super Lawyers – Rising Star.

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