Posted by Edmund R. Folsom, Esq.,

September 16, 2017.

DISCLAIMER:  The following is not legal advice.  It is not intended as legal advice and should not be taken as legal advice.  It is offered in the way of aiding understanding, only.

Sitting in court one day recently, waiting my turn, my attention was drawn to proceedings involving a female prisoner in the dock.  The woman’s lawyer and the judge were discussing the terms of her plea agreement that, in part, involved a jail sentence for drinking in public.  Yes, drinking in public.  There I was, in court, September 11, 2017, witnessing a woman receive a criminal conviction and a jail sentence for drinking in public.  This struck me as seriously unfair.   I was pretty sure if she had smoked marijuana in public instead of drinking alcohol in public she would only have been liable for a civil violation and a fine, so I turned to the legislator sitting near me and asked him a question.  Q:  “What’s the penalty for smoking marijuana in public?”  A:  “A hundred dollar fine.”  Now wait a minute…  This is fundamentally wrong, yet even as I type this screed another woman drinking in a public place might be on her way to a criminal conviction, and maybe even time in jail, while the person standing next to her smoking a joint will face neither consequence.

Under Maine law, it is a Class E crime, punishable by up to 6 months in jail and a $1,000.00 fine (that’s $1,220.00 with applicable surcharges) for a person to drink alcohol in a public place, either within 200’ of a conspicuously posted sign prohibiting public drinking or after having been personally warned by a police officer not to drink in public.  17 M.R.S. §2003-A.  Because there is no requirement that the person must have been warned against public drinking on the particular occasion, police in Portland (for instance) have forever scooped up vagrants they spot on the street with an alcohol container in hand, because they know the person has been previously warned by an officer not to drink in public.  Off to the hoosegow the criminal goes, till he appears in court, pleads guilty to the charge and is released for “time served.”  If only the person’s drug of choice were marijuana, he’d get a ticket and a maximum $100.00 fine. 7 M.R.S. §2452(6).  That makes Natty Ice a seriously bad choice up against Rolling Thunder Skunkweed these days.

In a slightly more upscale scenario, a couple of summer tourists might be sitting on the beach on a sunny afternoon, one with a preference for chardonnay and the other for the pungent herb.   Nearby, a conspicuously posted sign warns against alcohol consumption.   Along comes the local beach constable, who writes the pair for their respective violations.  If Ms. Chardonnay is convicted and Mr. Herb adjudicated for the offenses, Ms. Chardonnay will have to answer for a criminal conviction for the rest of her life, while the herb man will be exposed to the equivalent of a traffic ticket and, at most, a $100.00 fine.   How does it not trivialize the criminal law that public drinking is a crime at this point?  How is it not entirely unjust to give a person a criminal record for drinking in public when smoking marijuana in the same place is a civil infraction (keeping in mind that a criminal record is forever in Maine, barring a governor’s pardon)?  And yet, that is the prevailing state of affairs here in our fair State, September 16, 2017.   Not good… not good at all…  Back to that woman in the prisoners’ dock — I guess she should take up smoking weed if she wants to stay out of jail.