What you should know about recreational marijuana in Montana

As of January 1, 2021, it is no longer illegal to possess small amounts of marijuana for recreational use in Montana. However, there are still a number of questions before any legal sales take place.

The legalization was approved by Montana voters, who voted in favor of two measures in the November 2020 election: Constitutional Initiative 118 (CI-118) amended the state constitution to allow the Legislature or voters to set the age at which adults are allowed to possess and consume marijuana; and Initiative 190 (I-190) legalized the sale and possession of limited amounts of marijuana and levies a 20 percent tax on the sale of non-medical marijuana in Montana. It also allows people serving a sentence for an act now legal to apply for resentencing or an expungement of a conviction and prohibits the advertising of marijuana and related products.

While the Montana Legislature is likely to reshape the state’s marijuana laws in response to the initiatives, the first provisions took effect on Friday – before lawmakers even had a chance to meet.

The newly-effective sections allow people 21 and older to possess and use up to one ounce of marijuana or eight grams of marijuana concentrates. They also allow growing up to four marijuana plants inside a private residence, with the property owner’s permission.

However, Montanans shouldn’t expect to be able to immediately buy marijuana at a retail outlet, unless they have a medical card. The sections allowing recreational sales won’t take effect until at least October 2021, and current dispensaries are still limited to serving only registered patients.

Now law enforcement agencies and prosecutors will have to determine how to handle marijuana cases going forward. Until the Legislature makes its decision on the laws, there will be some open questions.

Lewis & Clark County Attorney Leo Gallagher said his office has usually only prosecuted misdemeanor marijuana possession when someone is also charged with other crimes. After I-190 passed, he says they immediately stopped filing those charges, and dropped pending cases.

“There’s no point in resources being expended either by the accused or by the government in pursuing something that doesn’t make any difference,” Gallagher said.

Another newly-effective provision in I-190 allows people already convicted of marijuana offenses that have since been made legal to ask that a judge remove those convictions from their record. The measure says courts should presume someone is eligible for that expungement unless the county attorney proves otherwise.

Gallagher said his office generally won’t challenge expungements, unless the marijuana charge was linked to a violent or sexual offense or a felony charge for selling or distributing drugs. "I don’t think that it’s worthwhile to try to contest something that the people have passed,” he said.

Gallagher said many people convicted of first-offense marijuana possession only received deferred sentences, so their convictions will eventually come off their record.

I-190 also institutes some new restrictions. For example, it says smoking marijuana in a public place isn’t allowed and could carry a civil fine of $50. However, some law enforcement leaders MTN talked to expressed concern that they might not be able to enforce that provision.

Lewis & Clark County Sheriff Leo Dutton said he believes his deputies will be able to enforce the public smoking ban, if they observe someone smoking. He said it would be more difficult to prove if someone else filed a complaint. “I think if you see them and you are trained to know what that is, we will probably write that,” said Dutton.

Dutton said he also sees uncertainty around a section saying marijuana plants in a home have to be in a locked area and out of public view. “The plant allotment at home is where we are unclear,” he said. “Those things still need to be worked out.”

Authorities will continue prosecuting people for driving under the influence of marijuana. Gallagher said law enforcement officers have often used the fact that someone had marijuana with them when they were stopped for suspected DUI as evidence. However, he believes he can still successfully prosecute a driver if a blood test finds they had more THC in their system than Montana’s legal limit, 5 nanograms per milliliter.

Dutton said his office will even be retraining their drug-sniffing dogs so that they no longer "alert" on marijuana.

The Montana Legislature is set to start its session on Monday. As of Friday, lawmakers had about 40 active bill drafts seeking to revise recreational marijuana laws, medical marijuana laws, or both. Several deal with what is likely to be one of the biggest issues they decide: how tax revenues from legal sales should be spent.

Supporters argued that legalizing recreational marijuana will generate much-needed tax revenue. A study by the University of Montana's Bureau of Business & Economic Research estimated recreational marijuana could generate more than $43 million a year for the state.

However, some law enforcement, medical, and professional groups opposed the measures. They argue legalized marijuana will add to the state's growing drug addiction problems, create safety concerns in the workplace, the risk of unintentional exposure to children, and increased marijuana use in adolescents.