A Bucksport man is challenging his conviction for violating a firearms possession law because he had marijuana on him during a July 2018 traffic stop. Credit: Sakchai Lalit | AP

Three years after Maine officially legalized the possession of recreational marijuana, the state’s highest court is now considering one of the first constitutional challenges from a Mainer who ran into trouble for having the substance.

In July 2018, a Maine State Police trooper stopped Richard Tonini of Bucksport for a traffic infraction and found him with 5 ½ ounces of marijuana, $5,000 cash and two handguns in his car. Tonini was charged with unlawfully furnishing scheduled drugs and possession of firearms prohibited for certain persons, and a Hancock County jury eventually cleared him of the drug furnishing charge.

But the jury convicted Tonini of violating the firearms possession law, which bans anyone who is “an unlawful user of or is addicted to any controlled substance” from possessing a firearm, and he was forced to pay a $350 fine. While marijuana is now legal at the state level, it is still considered a “controlled substance” under federal law.

Tonini’s attorney, Max Coolidge of Ellsworth, appealed the conviction to the Maine Supreme Judicial Court in late September.

On Thursday, during oral arguments before the court’s justices, Coolidge said that “insufficient evidence” was presented at Tonini’s original trial to show that he was a “user” of marijuana, as opposed to someone who legally possessed it. He said that the jurors received “inadequate” instructions about how to evaluate the evidence.

[Bucksport man challenges law that barred him from having a gun because of marijuana possession]

In a written brief, Coolidge also argued that the law Tonini was accused of breaking is a “vague criminal statute” that violated his constitutional right to keep and bear arms.

Besides allowing the possession of recreational marijuana in 2017, the state also legalized the medical use of marijuana in 1999. At the time of his arrest, Tonini was a certified medical marijuana patient, but the state trooper did not observe any signs that he had recently used the substance, according to Coolidge’s brief.

“It is counterintuitive that medicinal use of a drug that has been decriminalized by the people of Maine should result in the loss of 2nd Amendment rights,” Coolidge said.

On Thursday, the court also heard arguments from Toff Toffolon, a deputy district attorney in Hancock County, who argued for upholding the conviction. In his own brief, Toffolon said that the the judge and jury correctly interpreted the facts and applied them to the law during Tonini’s trial.

There “was ample circumstantial evidence from which the jury could conclude that Mr. Tonini was a user of marijuana,” Toffolon wrote. “If Mr. Tonini is aggrieved, it is with the legislative, not the judicial branch of government,” he added.

However, the Maine Office of the Attorney General has also weighed in on the case. The state office partly sided with Coolidge, arguing that Tonini’s conviction should be vacated “based on insufficiency of the evidence and obvious error in the jury instructions.”

Yet the office also recommended against the court using the case to evaluate the constitutionality of the law that Tonini is accused of violating.

During the oral arguments Thursday at Cumberland County Courthouse in Portland, the justices put several questions to the attorneys, but they did not say how they were inclined to decide on the case. At least two justices took note of the discrepancy in the positions of the attorney general and local prosecutors.

There is no time by which the justices on the Maine Supreme Judicial Court must issue their decision in the case.