UPM: Unlawful Possession of Marijuana

U.P.M., Penal Law § 221.05, was created as part of the 1977 Marihuana (that’s how they spell it) Reform Act of 1977.  The effect of this section was to “de-criminalize” possession of relatively small amounts of marijuana.  The term “de-criminalize” is literal – UPM is a violation under the Penal Law (PL § 10[3]), which does not constitute a “crime” under the Penal Law (as opposed to a misdemeanor or a felony).

The text of PL § 221.05 is:
§ 221.05.  Unlawful possession of marihuana. 

A person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana.
Unlawful possession of marihuana is a violation punishable only by a fine of not more than one hundred dollars. However, where the defendant has previously been convicted of an offense defined in this article or article 220 of this chapter, committed within the three years immediately preceding such violation, it shall be punishable (a) only by a fine of not more than two hundred dollars, if the defendant was previously convicted of one such offense committed during such period, and (b) by a fine of not more than two hundred fifty dollars or a term of imprisonment not in excess of fifteen days or both, if the defendant was previously convicted of two such offenses committed during such period.[source]

You may notice that the language of the statute does not provide a quantity to describe when someone may be found guilty of UPM, as opposed to the more serious “marihuana” offenses (those are listed in PL §§ 221.10 – 221.30; “Criminal Possession of Marihuana; 1st – 5th Degree).  This is read to mean that the possession of any quantity of “marihuana” less than 25 grams (the threshold for PL § 221.10; Criminal Possession of Marihuana in the Fifth Degree) constitutes UPM.

Subsections [a] and [b] provide for harsher sentences if the accused has been convicted of another drug offense under Article 220 of the Penal Law (“Controlled Substances Offenses”; i.e., drugs other than “marihuana”) or Article 221 (“Offenses Involving Marihuana”).

Also interesting is how marijuana is defined.  The Penal Law refers to Public Health Law § 3302[21] for this definition:

“Marihuana” means all parts of the plant of the genus Cannabis, 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.

The broad definition leaves law enforcement a lot of room for what they can get you for but, for the most part, people get UPM tickets in the Broome County area while smoking and driving – never a good idea, by the way. When they get caught for speeding and the officer detects the odor of marijuana, they’ll usually be searched and, when a bag of weed turns up, we get a call. With Binghamton University in the area, there’s also a lot of cases coming from that area, as smoking pot seems to be a national past time for some college kids.

Fortunately, getting caught with a small amount of marijuana for personal use, not packaged for resale, is not usually the end of the world. Hire a good lawyer for your case and you may have to pay a fine, do some community service, and/or receive some substance abuse education. Being convicted is a totally different story. Most people lose their job over a UPM conviction. If you are a student or prospective student, it can disqualify you from getting student loans and even get you kicked out of school. Drug charges of any caliber are no joke. Remember that it’s still the Federal Government and D.E.A. that dictate controlled substance laws. While these policies are currently being tested in several states – most recently in Colorado and Washington – there is still no move from the Presidents to stop prosecuting these cases or from Congress to modify existing codes.

Complicating the matter is a pervasive urban myth that if you get caught with under 25 grams of marijuana, you’ll get an “appearance ticket” and be on your way. As I’ve explained, in New York state U.P.M. is not a crime and, in that sense, the myth is correct. The problems arise if you do nothing about it or naively decide to represent yourself. Most people who try to represent themselves in a case like this will unknowingly make admissions of guilt or make things more difficult than they need to be in some other way. In a lot of courts, a judge won’t even allow you to proceed pro se and will direct you to seek local counsel or be given a court-appointed attorney if you qualify as an indigent.

Broome County UPM Lawyers – Law Office of Ken McCauley

If you get a UPM ticket anywhere in the Binghamton area – that includes places like Kirkwood, Chenango, Dickinson, Barker, etc. – just give us a call or fill out our “Free Consultation” form (on the right) and talk to us about your case. Chances are our fee will not be very expensive and we can handle your case the right way, eliminating any complications or loose ends. We also offer student discounts and payment plans so make sure to ask about those.

Ken McCauley

Ken McCauley is the principal attorney at the Law Office of Ken McCauley where he practices criminal defense, V&T law, and makes appearances before the New York State Liquor Authority. He is also pioneering a new realm of tort law - internet harassment. Ken attended Albany Law School where he earned the honors of highest academic standing in Administrative Law. [Read my full bio]

8 thoughts on “UPM: Unlawful Possession of Marijuana

  1. Hello,
    My son (17) was a passenger in his friends car who had marijuanna on him. Subsequently he was charged with a UPM and has to appear in court tomorrow. His friend admitted to the officer that the drugs were his and still gave my son an appearance ticket. What can I expect in court tomorrow.

  2. Hi Noam,

    Yes, we do handle cases in Mamakating, NY – Sullivan County. We would be happy to help you. Please call our office at (518) 406-8330.

  3. Hey i live in Canada and got a ticket for s. 221. 05. In Manhattan on new years. Courts adjourned it to end of next month. Can you guys handle this without me being present.

  4. Hi Judah,

    Yes we handle UPM cases there. If you have not already called the office, please do so. I’m happy to help. Apologies for the late response.

    – Ken

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