Indiana Marijuana Defense

Marijuana is legal for adults in Ohio, Michigan and Illinois. It is still a crime in Indiana. If you have been charged with a marijuana offense in Indiana, the case often turns less on what police found than on how they found it, and on whether the State can prove what it is.

I prosecuted drug cases in Indiana for nearly 30 years, from simple possession through dealing. I know how these cases are built, and where they come apart. I now use that experience to defend people charged with marijuana offenses.

What does a marijuana charge carry in Indiana?

• Possession: In most cases a Class B misdemeanor, up to 180 days in jail and a fine of up to $1,000, regardless of amount.
• Possession as a Class A misdemeanor: Up to one year in jail and a fine of up to $5,000, when the person has a prior drug conviction, or when the marijuana was packaged to look like legal low-THC hemp extract and the person knew or should have known it was marijuana.
• Possession as a felony: Level 6 felony only when the person has a prior drug conviction and the amount is at least 30 grams of marijuana (or at least 5 grams of hash oil, hashish or salvia). A Level 6 felony carries six months to two and a half years, with an advisory sentence of one year, and a fine of up to $10,000.
• Dealing: A Class A misdemeanor for under 30 grams of marijuana with no prior drug conviction. It is a Level 6 felony for 30 grams to under 10 pounds, or for under 30 grams with a prior drug conviction. It is a Level 5 felony (one to six years, advisory three years, fine up to $10,000) for 10 pounds or more, a sale to a minor, 30 grams to under 10 pounds with a prior dealing conviction, or a retailer selling marijuana packaged to look like low-THC hemp extract. For hash oil, hashish and salvia, the thresholds are 5 grams and 300 grams instead of 30 grams and 10 pounds.
• Possession with intent to deal: Under 10 pounds of marijuana (300 grams of hash oil, hashish or salvia), the State needs evidence of intent beyond the weight alone, such as scales, packaging or sales records.
• Paraphernalia: Class C misdemeanor, up to 60 days and a fine of up to $500. It becomes a Class A misdemeanor with a prior unrelated judgment or conviction for paraphernalia. Rolling papers and drug-testing items, such as test strips, are excluded.
• Smokable hemp: Possessing hemp flower in smokable form is a Class A misdemeanor, even though it is not marijuana, with a narrow exception for transporting it through Indiana.

Indiana has not decriminalized marijuana. Bills to decriminalize or legalize it were filed in 2026 and did not become law.

Will a marijuana conviction suspend my driver's license?

Not automatically. Indiana repealed the law that suspended a driver's license for a drug possession conviction, effective July 1, 2020. A driving charge, such as OWI, carries its own license consequences.

Can I avoid a conviction on a first offense?

It may be possible. Neither path below is guaranteed, but either can end a first marijuana case without a conviction:

• Conditional discharge. If you have no prior conviction for a controlled substance offense under Indiana's drug laws, the court may, with your agreement, accept a guilty plea to misdemeanor possession, hold off on entering a conviction, and set conditions. If you meet them, the court must dismiss the case. A person can receive only one dismissal under this law.
• Pretrial diversion. The prosecutor may agree to withhold prosecution while you complete conditions. This is up to the prosecutor.

For charges filed after June 30, 2022, when all charges are dismissed and no conviction is entered, Indiana law requires the court to order the arrest and court records expunged. The order takes effect no earlier than 60 days after dismissal, or up to one year later if the prosecutor shows good reason.

Can a marijuana conviction be expunged?

Yes. For a misdemeanor conviction, you can generally petition five years after the date of conviction, if you have no pending charges, no new convictions in those five years, and all fines, fees, costs and restitution are paid. The wait can be shorter if the prosecutor agrees in writing.

I bought it legally in Ohio, Michigan or Illinois. Does that matter?

No. Indiana law has no exception for marijuana bought legally in another state, and the Indiana Court of Appeals has rejected the argument that legalization next door changes the analysis. Richmond and the eastern counties sit on the Ohio line, and this catches many people off guard.

Can police search my car because they smell marijuana?

Under current Indiana Court of Appeals decisions, generally yes. The court has held that a trained officer's detection of the odor of marijuana gives probable cause to search a vehicle, even though legal hemp smells the same.

The court has also held that a drug dog's alert, together with the surrounding circumstances, can still support probable cause even though the dog may react to legal hemp.

The Indiana Supreme Court has not yet decided the hemp question. Earlier, it held that an officer's trained recognition of the odor of raw marijuana can support a search warrant.

But the smell of marijuana does not justify everything. It did not allow an officer to walk into a home without a warrant, and it does not make an unlawful stop lawful. Whether the stop was legal in the first place, whether it was dragged out, and whether any consent was real are often the questions that decide the case.

These challenges have to be raised in the trial court. An argument not made there can be lost on appeal.

Does the State have to prove it is marijuana and not hemp?

Yes. Indiana law separates marijuana from hemp, which is cannabis with no more than 0.3% delta-9 THC on a dry-weight basis. Hemp products have their own rules: smokable hemp is still illegal to possess, and low-THC hemp extract has additional limits. But the line matters, because marijuana by definition does not include hemp.

To convict, the State must present enough evidence to prove the substance was illegal marijuana, not just cannabis or something containing THC. Indiana courts have held that an officer's identification by sight and smell, an unexplained field test, and the defendant calling it "weed" were not enough on their own. The State does not have to prove the exact THC percentage.

That is why, in every marijuana case, I ask whether the substance was sent to a lab, how it was tested, and what the report does and does not say.

Can I be charged with OWI for THC if I was not high?

Yes. In Indiana it is a crime to drive with marijuana or its metabolite in your blood, whether or not you were impaired. The metabolite can stay in the body long after any effect has worn off.

Indiana law has a defense for marijuana when the driver was not intoxicated and did not cause an accident, but it applies only to blood tests taken after a crash involving serious injury or death. It does not apply to an ordinary traffic stop.

How the blood was drawn, how it was tested, and why the driver was stopped all matter in these cases.

What about delta-8 and other hemp products?

The law here is unsettled. No Indiana statute names delta-8. The Indiana Attorney General issued an advisory opinion in 2023 taking the position that delta-8 products are controlled substances, but that opinion is not binding law. In 2025 the Indiana Court of Appeals reinstated charges involving alleged delta-8 cartridges, holding that what the substance actually was is a question of fact for trial; it did not decide whether all delta-8 products are legal or illegal. A 2026 bill to ban these products did not become law.

Federal law is also changing. A 2025 federal law narrows the federal definition of hemp effective November 12, 2026, and a later law delays part of that change, for certain products containing cannabinoids the plant cannot produce naturally, until December 11, 2026.

If you were charged over a hemp product, the label, the lab report and where it was bought all matter.

Marijuana cases where the evidence was thrown out

Some of the cases on my Police Mistakes page involved marijuana:

• Ware v. State (Kokomo, 2003). An officer smelled burning marijuana at an apartment door and walked in without a warrant. The Court of Appeals held the entry unlawful, held that it tainted the consent that followed, and ruled the evidence should have been suppressed.
• Green v. State (Benton County, 1999). A stop without reasonable suspicion. The marijuana was the entire case, so the conviction was reversed.
• Gerth v. State (Westfield, 2016). A search built on a vague informant tip, with facts about the informant's reliability left out of the warrant request. Both convictions were reversed.
• State v. Hendricks (Lafayette, 2025). Officers came onto the property around a home late at night without justification under the Indiana Constitution, smelled marijuana, and then got a search warrant. Because the warrant grew out of the unlawful approach, suppression of the firearms, marijuana and mushrooms was affirmed.
• Vance v. State (Jeffersonville, 2026). A 3:00 a.m. "knock and talk" at a motel room became an unlawful entry under the Indiana Constitution. The drug evidence should have been suppressed, and the convictions were reversed.

How I defend a marijuana case

• Review the reason for the stop or the basis for the warrant.
• Test whether the search went beyond what the law allowed.
• Check whether the substance was lab tested, and whether the result proves marijuana rather than hemp.
• Make the State prove any prior conviction it uses to raise the charge.
• Look for a path that ends the case without a conviction, such as conditional discharge or diversion.

Every case depends on its own facts. This page is general information, not legal advice, and past results do not guarantee a similar outcome.