Can you smoke marijuana freely in Mexico now?

Yesterday the commissions of Justice, Health and Legislative Studies of the Senate of the Republic approved, in general, the ruling that seeks to regularize cannabis in Mexico. As a consequence, thousands of users assumed that this plant was finally released for recreational use. 

Possession of marijuana for the purpose of sale or supply is punishable by up to 25 years in prison. Photo: Flickr
Possession of marijuana for the purpose of sale or supply is punishable by up to 25 years in prison. Photo: Flickr

However, although it is an advance in terms of rights, it is still not possible to smoke marijuana freely in Mexico.

Why is it still not possible to smoke marijuana freely?

The vote was 26 in favor by senators from the Morena, PT, PRD and MC parties, and 8 abstentions by the PRI and PAN parties and 7 votes against by the PAN. This vote won by the leftist parties will imply the following:

Attend to the mandate of the Supreme Court of Justice that determines the "respect for the free determination of personality". With this, a prohibitionist attitude towards the consumption of this substance will cease.

Generate aid for the field so that marijuana can be planted and marketed. With the above, Mexico could become a potent producer of marijuana. According to civil organizations, Mexico could exploit its potential as a producer and generate places for recreational consumption. This would imply a wide economic spillover and growth in the tourism sector.

To this end, a law for the regulation of Cannabis is being considered, which would contemplate the recreational use of the plant by adults, as well as medical uses. If approved, people will have the right to carry up to 28 grams of the plant without being arrested. It also prohibits the use of cannabis by minors, as well as its use in related commercial activities.

In addition, there are plans to establish the Mexican Cannabis Institute, a body responsible for coordinating public administration institutions in the area of cannabis use.

In view of the approval, the voices of the different levels of government have issued different statements. From the Federal Government, the Secretary of Government, Dr. Olga Sánchez Cordero, asked not to stigmatize the consumers. For his part, Senator Miguel Ángel Macera declared that the act was a necessary step forward. Currently, it is expected that the law will go through the upper house so that its free consumption will be effective.

Sanctions for possession of marijuana

The amount established by the General Health Law (LGS) for which no criminal action will be taken is 5 grams. However, if presumably, the amount is greater, the authority has the obligation to present the bearer to a judge, who will determine if there is a sanction.

Article 194 of the CPF states that a prison term of ten to 25 years and a fine of between 8,500 and $42,200 pesos shall be imposed on any person who produces, transports, traffics, trades, even supplies free of charge or prescribes any of the narcotics mentioned in the previous article, without the corresponding permission granted by the Ministry of Health.

The possession of marijuana, the purpose of which is any of the acts mentioned in the preceding paragraph, merits between five and 15 years in prison and a fine of between 8,449 pesos and 29,571 pesos (CPF, 195). If the possession has none of these purposes, the penalties are between four and seven years in prison and fines of between 4,224 and 12,673 pesos.

Article 475 of the LGS states that four to eight years' imprisonment and a fine of 17,000 to 34,000 pesos shall be imposed on anyone who sells or supplies marijuana without the corresponding permit, provided that the amount is less than 5 kg. If the victim is a minor or is unable to understand or resist the conduct, or if one of these persons is used to commit the crime, the penalties are between seven and 15 years in prison and the fine is between 16,898 pesos and 33,796 pesos.

Whoever possesses between 5 grams and 5 kg of marijuana for the purpose of trading or supplying them will suffer a penalty of between three and six years in prison and a fine of between 6,759 and 25,347 pesos (LGS, Article 476). The penalty is less if the possession of this amount is not intended for sale, and will be between ten months and three years in prison, the fine will be up to 6,759 pesos (LGS, Article 477).

Cultivation of marijuana

A person who sows marijuana or allows marijuana to be sown on his or her property may be sentenced to between one and six years' imprisonment, provided that he or she is a person of little education and extreme economic need. If these last two conditions are not met, the penalty can be between 6.6 and 16.5 years in prison.

Organized crime

In the meantime, the Federal Law against Organized Crime establishes that when three or more persons organize to carry out, permanently or repeatedly, behaviors such as drug-dealing, they will be considered members of organized crime.

Exceptions and extenuating circumstances

A person who possesses more than 5 grams but less than 5 kg of marijuana, the purpose of which is not sale or supply, shall be exempt from criminal prosecution if he is a drug addict (LGS, Article 478). In addition, according to a transitory article of the CPF, who has committed the crime of possession of marijuana in the quantities mentioned without purposes of sale or supply, may benefit from early release, provided that he has not committed the crime using violence or in concurrence with other crimes.

"Early release is a benefit granted to a person who was convicted of an offense, in this case, possession of marijuana, in which he can obtain his freedom even before the completion of his sentence, having fulfilled certain conditions," explained in an interview with El Contribuyente the master Rodolfo Islas Valdés, criminal lawyer, Partner of the Islands, Moya, Salinas, and Madero.

The Political Constitution of the United Mexican States in Article 16 states that no one may be disturbed in person, domicile, or possessions, without the mandate of a competent authority. Thus, the carrying of marijuana discovered in an arbitrary review of the authority could not generate criminal consequences for the detainee.

"If it is an illegal review and a person is detained as a result of it, it can be argued in the detention control before the judge of control of such illegality, and be able to obtain the detainee's release as a consequence," said Islas Valdés.

Since 2014, several people have sought protection before the Supreme Court of Justice of the Nation (SCJN) for the recreational use of marijuana. Islas Valdés mentions that "it is an amparo in which the federal authority may grant the protection of federal justice to a person (physical or moral) in order to be able to use or possess marijuana, exclusively for recreational use". However, it must be said, only those people who are protected can benefit from this benefit.

Therapeutic or medicinal uses

The General Health Law was amended in 2017. The modification of article 245 mentions that the Ministry of Health must design and implement public policies that regulate the medicinal use of pharmacological derivatives of cannabis. Thus decriminalizing the medical use of marijuana.

Articles 236 and 242 of this same law establish that the Ministry of Health will be responsible for issuing special permits for acquisition or transfer and prescriptions for the marketing of the substance.

Things to keep in mind

On the other hand, in the labour aspect, there are also certain aspects that need to be considered. Smoking marijuana in the workplace or getting to it drugged, can justify the dismissal of the worker without liability to the employer (which exempts the employer from the obligation to pay compensation). However, some companies also subject their workers to anti-doping tests.

"The fact of having done it in his free time does not exempt him from liability because even doing so at that time, when returning to work, still maintains the consequences or results of the consumption of marijuana, possibly affecting their work activity," argued the specialist.