Practicing criminal defense law in Ithaca, NY brings a specific student focus to many legal issues. Many Cornell University and Ithaca College students receive financial aid in various forms. Concerns over the affect that a conviction of any type could have on their current lifestyle, future plans, and career prospects are always at the forefront of any legal consultation.
Most students are unaware that any conviction for the sale or possession of illegal drugs leads to some harsh collateral consequences.
President Clinton originally signed the legislation that amended Higher Education Act (HR 6) which mandated that "A student who has been convicted of any offense under any Federal or State law involving the possession or sale of a controlled substance shall not be eligible to receive any federal grant, loan, or work study program. " This was amended in 2006 to block eligibility for Federal financial aid only when the offense occurred during the period of time when the student was receiving aid.
The controlling law is 20 USC section 1091 (r) (1) which suspends eligibility for any federal grant, federal loan, or federal work study financial assistance for students convicted of any offense under State or Federal law involving the possession or the sale of a controlled substance.
The suspension of eligibility for Federal financial aid begins on the date of the conviction and ends as follows:
– for Possession of a Controlled Substance 1st offense: 1 year
– for Possession of a Controlled Substance 2nd offense: 2 years
– for Possession of a Controlled Substance 3rd offense: Indefinite
– for Sale of a CS! st Offense or 2nd Offense: 2 years
– for Sale of a CS 3rd Offense: Indefinite
The use of marijuana in Ithaca is ubiquitous. Pot is not considered or recognized by many people as a controlled substance or illegal drug. There are many "head" shops in the downtown Ithaca Commons which sell pipes, bongs, and other smoking paraphernalia.
Of important note to college students is the fact that a conviction for the Unlawful Possession of Marijuana, (UPM) PL 221.05 will result in a period of ineligibility for any Federal financial aid.
UPM is for possession of less than 25 grams (about 7/8 of an ounce) of marijuana. In contrast, the Criminal Possession of Marijuana (Penal law 221.10), a B misdemeanor, is where the amount is over 25 grams but less than 2 ounces OR where possession is in a public place where the marijuana is burning or open to public view.
How is it possible that your Federal financial aid will be affected by the possession of one unlit joint?
UPM is considered just a violation in New York State, and is not a classified misdemeanor (a crime). Even so, Section 1091 was specifically written to include any offense language (thanks to former President Clinton) which does not necessarily imply a crime, and the Unlawful Possession of Marijuana, PL 221.05 is considered such an offense, and Marijuana is a listed controlled substance under 21 USC section 802 (6).
So what remedies are available to convicted students?
They can complete a drug rehabilitation program to regain eligibility. This program must comply with criteria set out by the Secretary of Education by (1) being qualified to receive funds from Federal, state, or local government, or from a Federally or state licensed insurance company OR (2) be administered or recognized by a Federal, state, or local government agency or Court, or a Federally or state licensed hospital, health clinic, medical doctor AND
(3) must include two unannounced drug tests.
Of course, the best solution is not to have a UPM conviction in the first place by negotiating a dismissal of the charges or an ACD (adjournment in contemplation of dismissal). A Unlawful Possession of Marijuana (UPM offense), and the Criminal Possession of Marijuana (Class B misdemeanor) charges can usually be resolved with a non criminal deposition which will not affect your Federal financial aid.