A unanimous Iowa Supreme Court ruled on October 16, 2020 that certain marijuana possession-related convictions do not merge for purposes of double jeopardy protections against cumulative punishments.
In State v. Johnson, the defendant argued his possession of marijuana conviction, a serious misdemeanor, should merge with his felony conviction for eluding while possessing marijuana. The State did not dispute that a driver cannot violate the particular eluding subsection without also violating the prohibition against possessing marijuana. Under the legal-elements test that compares two offenses to determine whether it is possible to commit the greater offense without committing the lesser, the crimes should obviously merge.
However, that is not the end of the analysis.
There is a second step, namely whether the legislature intended multiple punishments for the same offense.
Noting that merger would eliminate subsequent-offense enhancements for marijuana possession, which are deigned to deter and punish repeat offenders, the Court reasoned that the legislature did not intend that those convicted of eluding with marijuana would escape enhancements that apply to those convicted of possession alone. That would create a “perverse incentive to flee the police.”
Other sentencing penalties and options unique to section 124.401, like certain DARE and law enforcement initiative surcharges, the denial of federal and state benefits, allowance for probationary drug testing and enhancements for possessing a firearm while also possessing marijuana with the intent to deliver, would also be avoided if merger applied . . . a similar situation the legislature didn’t intend.
Furthermore, Iowa Code section 124.404 operates as a savings statute or antimerger provision that preserves the unique enhancements and other penalties of the Iowa Uniform Controlled Substances Act (Chapter 124) notwithstanding any sanctions imposed by other laws.
Finally, the Court declined to merge these particular offenses because the statutes involved address distinct dangers. Eluding is criminalized to protect dangerous driving while marijuana prohibition is to protect the public from substance abusers. These divergent purposes lent further support to undermine the merger of two marijuana possession-related offenses.
This decision certainly has implications regarding other circumstances involving the possession of marijuana that could be simultaneously charged as a misdemeanor under 124.401(5) and another code section. Gatherings involving marijuana under section 124.407(2)(b) and possession within 1000 feet of certain real property (schools, parks, swimming pools, recreation centers or on a marked school bus) under section 124.401A obviously come to mind.
In the event that the drug defense attorneys at GRL Law are unable to successfully suppress evidence or otherwise win a dismissal of the charges, then we will always advocate for merger of the offenses to avoid cumulative punishments whenever possible.