Law Office of<br />
Erlinda Ocampo Johnson

Law Office of
Erlinda Ocampo Johnson 

Personal Injury Law
Criminal Defense Law

PRACTICE AREAS: Personal Injury, Wrongful Death, and Criminal Defense

Marijuana Possession Penalties in New Mexico

Penalties for possession, use and selling of marijuana in the U.S. have changed greatly in the past five years. Twenty-nine states in the U.S. currently allow a qualified person to legally purchase and possess marijuana in controlled amounts for medical use within that state. New Mexico is one of them, primarily because of the Lynn and Erin Compassionate Use Act. However, keep in mind that marijuana possession is still ILLEGAL at the federal level, even if you live in a state where recreational use of marijuana has been legalized.

New Mexico is not one of the 9 states that allow legal recreational use of marijuana. Possession and sale of it for recreational purposes can result in fines and jail time if you are arrested and convicted.

Being arrested, going to jail and paying heavy fines can have a huge impact on your life. Read on to better understand the laws surrounding the use and sale of marijuana in our state.

What is the Compassionate Use Act?

In 2007, New Mexico passed the Lynn and Erin Compassionate Use Act allowing legal marijuana or cannabis use for certain medical conditions. The Act protects a qualified medical practitioner, the patient or user who has obtained written certification for medical use, the licensed provider and the possible primary care giver of the patient from prosecution and penalty. The act allows for:

“…the beneficial use of medical cannabis in a regulated system for alleviating symptoms caused by debilitating medical conditions and their medical treatments.”

The recognized debilitating medical conditions in the Act are:

  • cancer;
  • glaucoma;
  • multiple sclerosis;
  • damage to the nervous tissue of the spinal cord, with objective neurological indication of intractable spasticity;
  • epilepsy;
  • positive status for human immunodeficiency virus or acquired immune deficiency syndrome;
  • admitted into hospice care in accordance with rules promulgated by the health department, and
  • other medical conditions, medical treatment or disease as approved by the health department.

The amount of cannabis allowed for approved medical conditions is, according to the statute:

“…no more than reasonably necessary to ensure the uninterrupted availability of cannabis for a period of three months and that is derived solely from an intrastate source.”

Medical Use Approval Has Limits

The statute applies to the qualified patient and the patient’s primary caregiver as well as licensed medical practitioners and qualified producers selling the marijuana. However, many fine points to the law do exist.

Even if you possess marijuana for a medical purpose legally, you can be prosecuted for:

  • Driving while under the influence of marijuana while operating a motor vehicle
  • Using marijuana while:
    • in a school bus or public vehicle
    • on school grounds or property
    • in the workplace of the qualified patient’s or primary caregiver’s employment
    • at a public park, recreation center, youth center or other public places

Plus, if you tell a law enforcement officer you are a legal participant in a medical cannabis program when you are not, it is considered a petty misdemeanor and you can be arrested for it.

A licensed producer who sells, distributes, dispenses or transfers marijuana to anyone not approved by the health department as allowed by the Lynn and Erin Compassionate Use Act, or transports cannabis outside New Mexico is also subject to arrest and prosecution may be subject to drug trafficking laws.

Penalties for Recreational Use


As previously mentioned, it is illegal to use marijuana for recreational purposes in New Mexico. What happens if you are are caught in possession of it? The following penalties may apply.

  • If you possess under 1 ounce: This is considered a petty misdemeanor punishable by up to 15 days in jail and $50-$100 fine. If you are charged with a subsequent offense, the charge is a misdemeanor and jail time and fines are increased.
  • If you possess from 1 to 8 ounces: This is considered a misdemeanor punishable by up to 1 year in jail and a fine of $100-$1000.
  • If you possess over 8 ounces: This is a serious 4th degree felony charge. Fines and jail time vary.


Selling marijuana for recreational purposes in New Mexico is a serious 4th degree felony. If you’re caught selling over 100 pounds, it is considered a 3rd degree felony. If you are charged with a subsequent offense and convicted, the felony charges as well as the penalties and possible jail time can increase. Penalties can be even higher if you are convicted of selling marijuana in a school zone.

Drug Trafficking

Marijuana is considered a Schedule 1 drug—this class of drugs is considered highly-addictive and drugs in this category fall under the strictest regulation. If you transport marijuana into New Mexico from another state and are arrested, or are caught transporting marijuana from New Mexico to another location, you may be subject to federal drug trafficking and distribution laws. Penalties and jail time can be severe.

Get Expert Help

Have you, your friend or loved one been arrested on a marijuana possession, selling or trafficking charge? New Mexico law can be complex. You need help from an aggressive and fearless drug crime defense attorney who understands all of the nuances of the law in New Mexico.

Erlinda Ocampo Johnson has years of experience on both sides of the state and federal legal system. If necessary, she can consult with professionals from HR Legal Consultants whose team includes a former federal narcotics law enforcement agent. She will use her vast experience and every possible resource to understand your specific charges and skillfully build a case on your behalf. Contact the Law office of Erlinda Ocampo Johnson, LLC today to consult with an experienced Albuquerque criminal defense lawyer.

Call 505.792.4048 today for a consultation with an experienced criminal defense lawyer.
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