The D.C. Court of Appeals recently reversed the conviction of a man who had been convicted of possession with intent to distribute a controlled substance after the police found 1.76 ounces of marijuana during a traffic stop. This decision interprets an initiative adopted by D.C. voters in 2014 that decriminalized the possession of less than two ounces of marijuana. Despite this law, courts continued to convict individuals found with less than two ounces of marijuana if they were found to have an “intent to distribute,” even if defendants had not actually made the marijuana available for sale. This decision ended that inconsistency, holding that possession of a small amount of marijuana, coupled with the intent to distribute, fell within the class of conduct that the statute decriminalized.

Although the statute provides that it remains a crime to “sell, offer for sale, or make available for sale” marijuana, the court held that intent to distribute did not fall within this category. The court explained that “no one would say that someone who possesses an object . . . has made it available for sale simply by thinking about selling it.” Specifically, neither the possession of marijuana in clear plastic bags, the possession of $769 in cash, nor the possession of a digital scale constituted an action that demonstrated that the defendant had made marijuana available for sale: “[t]he act of putting any object that might be sold, or is even intended for sale, into a container is not commonly understood as making that object available for sale.”

This case has implications for the sealing of criminal records. The D.C. Code currently provides that a person who was arrested, charged, or convicted of a criminal offense that has since been decriminalized may file a motion to seal the record of their arrest, charge, conviction, and any court proceedings. This decision makes clear that convictions for possession of small amounts of marijuana with the intent to distribute fall within the category of offenses that have been decriminalized, absent a finding that the defendant made marijuana available for sale. As a result, individuals with these convictions should now be eligible for record sealing.