Marijuana Is Legal in New York — So Why Are People Still Getting Arrested? What Nassau County Residents Need to Know

Since the Marijuana Regulation and Taxation Act (MRTA) took effect in March 2021, many New Yorkers assume that cannabis is now completely legal and that arrests for marijuana-related offenses are a thing of the past. That assumption is wrong. While adult-use marijuana is legal in New York under certain conditions, there are still dozens of scenarios where cannabis can lead to criminal charges — including misdemeanors and felonies that carry jail time, state prison, and a permanent criminal record.

If you live in Nassau County, here’s what you need to understand about where the legal line actually is — and how easy it is to cross it.

What IS Legal for Adults 21 and Over

Under the MRTA, adults aged 21 and older are permitted to:

Possess up to 3 ounces of cannabis flower or up to 24 grams of concentrated cannabis (edibles, oils, waxes) outside their home.

Possess up to 5 pounds of cannabis inside their own private residence.

Smoke or vape cannabis in any public location where tobacco smoking is allowed. This includes sidewalks, parks, and other outdoor areas. It does not include restaurants, bars, workplaces, schools, or vehicles.

Purchase cannabis from licensed dispensaries. New York’s licensed retail dispensary program is now operational, with licensed shops across the state regulated by the Office of Cannabis Management (OCM).

Home cultivation of up to 3 mature and 3 immature plants per person (maximum 12 per household) once regulations are finalized by the OCM. Note: as of 2026, home cultivation rules are still being implemented, so check the current status before growing.

If you are 21 or older, possess legal quantities, purchase from a licensed source, and consume in a legal location, you are within the law. But every one of those conditions has an exception that can lead to an arrest.

Possession Over the Legal Limit

Exceeding the legal possession limits is where most people unknowingly cross into criminal territory. The New York Penal Law now uses Article 222 to define cannabis offenses, and the penalties escalate quickly:

More than 3 ounces but less than 16 ounces — a violation punishable by a fine of up to $125. Not a crime, no jail. But it is still a citable offense.

More than 16 ounces but less than 5 pounds — Criminal Possession of Cannabis in the Third Degree (PL §222.30). This is a Class A misdemeanor: up to 1 year in jail and a fine of up to $1,000.

More than 5 pounds but less than 10 pounds — Criminal Possession of Cannabis in the Second Degree (PL §222.35). This is a Class E felony: up to 4 years in state prison.

More than 10 pounds — Criminal Possession of Cannabis in the First Degree (PL §222.40). This is a Class D felony: up to 7 years in state prison.

Many people are surprised by how quickly the quantities add up. If you purchase from multiple sources, stock up for personal use, or have a home-growing operation that produces more than the legal limit, you could find yourself facing a drug charge that carries years in prison.

Unlicensed Sale Is a Crime

Perhaps the most commonly misunderstood area of the law is sale. Marijuana may be legal to possess, but selling it without a license is a crime:

Selling up to 1 ounce without a license — Criminal Sale of Cannabis in the Third Degree (PL §222.50). Class A misdemeanor: up to 1 year in jail.

Selling more than 1 pound — Criminal Sale of Cannabis in the Second Degree (PL §222.55). Class E felony: up to 4 years in prison.

Selling more than 5 pounds — Criminal Sale of Cannabis in the First Degree (PL §222.60). Class D felony: up to 7 years in prison.

Selling 100+ pounds — Aggravated Criminal Sale of Cannabis (PL §222.65). Class C felony: up to 15 years in prison.

This is the trap that catches many Nassau County residents. Sharing cannabis with a friend in exchange for money, selling small amounts from your home, or running an unlicensed delivery service are all criminal acts — regardless of the fact that the substance itself is legal to possess. Law enforcement has been actively cracking down on unlicensed cannabis operations across Long Island.

Selling or Giving Cannabis to Anyone Under 21

Providing cannabis to a person under 21 is a separate and serious offense. Under PL §222.50(2), selling cannabis to a minor is always a criminal offense, and the penalties are enhanced. Additionally, adults who allow minors to consume cannabis on their property can face charges. For individuals under 21, possession of cannabis in any amount is subject to the Zero Tolerance Law when driving is involved, and can result in civil penalties and intervention programs even when no vehicle is involved.

Driving Under the Influence of Cannabis

This is the area where the most serious criminal exposure exists. Driving while impaired by cannabis is prosecuted under the same DWI laws that apply to alcohol, and the penalties are identical.

DWAI-Drugs (VTL §1192.4) — Driving While Ability Impaired by Drugs is a misdemeanor: up to 1 year in jail, license revocation for at least 6 months, and fines of $500–$1,000 for a first offense.

DWAI-Combination (VTL §1192.4-a) — Driving while impaired by a combination of drugs and alcohol. Same penalties as DWAI-Drugs.

Unlike alcohol, there is no specific THC blood level that triggers a per se DWI charge. The prosecution relies on the officer’s observations of impairment, field sobriety tests, and the evaluation of a Drug Recognition Expert (DRE). This makes cannabis DWI cases highly subjective and potentially easier to charge but also potentially easier to challenge with the right attorney.

For drivers under 21, the Zero Tolerance Law applies: any detectable amount of cannabis can result in license suspension and penalties. And if you are stopped at a DWI checkpoint, the smell of recently smoked cannabis combined with observed impairment can provide the officer with grounds for further investigation.

Important note on the smell of marijuana: Under the MRTA, the smell of cannabis alone is no longer sufficient probable cause for a search of your person or vehicle. This was a major change from the pre-legalization era and was designed to curb pretextual stops. However, the smell of cannabis combined with other indicators of impairment (bloodshot eyes, slurred speech, erratic driving) can still support an investigation. For more on how probable cause works in New York, see our blog post on the topic.

Cannabis in Prohibited Locations

Even legal cannabis consumed in the wrong place can result in a citation or arrest:

Vehicles. Consuming cannabis in any motor vehicle — moving or parked — is illegal. An open container of cannabis in a vehicle can also lead to a civil penalty.

Schools and school grounds. Cannabis possession or use on or within a specified distance of school property is subject to enhanced penalties. This applies even to adults who are otherwise of legal age to possess.

Workplaces. Employers can prohibit cannabis use on work premises, even if they cannot penalize off-duty use. Using cannabis at work can result in termination and, depending on the circumstances, criminal charges.

Federal property. Cannabis remains illegal under federal law (Schedule I, Controlled Substances Act). Military bases, federal courthouses, post offices, national parks, and other federal lands in Nassau County are off-limits for cannabis possession and use.

Cannabis and Your Employment

New York provides strong employment protections for off-duty cannabis use. Under Labor Law §201-d as amended by the MRTA, most employers cannot discriminate against employees or applicants based on their legal, off-duty cannabis use. Employers generally cannot test for cannabis as a condition of employment.

However, significant exceptions exist:

Safety-sensitive positions where impairment would create a substantial risk of death or injury.

Federal contractors and employees subject to federal drug testing requirements (DOT-regulated positions, defense industry, healthcare workers subject to federal funding conditions).

Law enforcement and corrections officers.

Any position where federal law or regulation requires drug testing as a condition of employment or continued employment.

If you are in one of these categories, a positive cannabis test — even from legal, off-duty use — can cost you your job. And if your cannabis use results in a criminal charge (such as DWAI-Drugs or possession over the legal limit), the employment consequences are even more severe. For more on how criminal charges affect your career, see our post on whether your employer will find out about your arrest.

Cannabis and Immigration

This is a critical warning for non-citizens. Despite New York’s legalization, cannabis remains illegal under federal law. For immigration purposes, federal law controls. Admitting to cannabis use — even legal cannabis use under state law — during an immigration interview or at a port of entry can result in denial of admission, denial of adjustment of status, or removal proceedings. A cannabis-related criminal conviction (such as unlicensed sale) is a deportable offense. If you are not a U.S. citizen and facing any cannabis-related charge, consult an immigration attorney immediately alongside your criminal defense lawyer.

What About Old Marijuana Convictions?

The MRTA included provisions for the automatic expungement of prior marijuana convictions for conduct that is no longer criminal. The Office of Court Administration has been processing these expungements, and many New Yorkers have already had their old records cleared. If you have a prior marijuana conviction that has not yet been expunged, or if you have questions about a prior drug conviction that may qualify for sealing or expungement, contact an attorney to review your specific record.

What to Do If You’re Arrested for a Cannabis Offense

If you are arrested or issued a summons for any cannabis-related offense in Nassau County, take the following steps:

Exercise your right to remain silent. Do not discuss the amount you possessed, where you got it, or whether you were consuming. Everything you say becomes evidence.

Do not consent to a search. Remember: the smell of cannabis alone is no longer probable cause for a search. If the officer searches anyway, your attorney can challenge the legality of the search.

Contact an attorney immediately. Cannabis cases are highly defensible because the law is new, evolving, and full of nuances that many police officers and even some prosecutors don’t fully understand. An experienced defense attorney can identify issues that lead to dismissal.

Contact Hochhauser Criminal & DWI Defense Today

The line between legal cannabis use and a criminal charge is thinner than most people realize. At Hochhauser Criminal & DWI Defense, Richard Hochhauser handles drug charges, DWAI-Drug cases, and all cannabis-related offenses across Nassau County, Suffolk County, and all of Long Island. As a former Nassau County prosecutor, he understands both the new cannabis laws and the aggressive enforcement culture in Nassau County’s courts.

If you’ve been arrested, charged, or issued a summons for any marijuana-related offense, contact us today for a free, confidential consultation. Call or text (516) 939-1529. Our office is located directly across from the Nassau County courthouse at 164 Jackson Street in Hempstead.