Cannabis or can’t-abis:

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EDITOR’S NOTE: This is the first in a series of stories where the Pioneer will explore the legalization process of medical and recreational marijuana in South Dakota.

LAWRENCE COUNTY — As local officials continue to hash out municipal and county regulations for the marijuana statutes that will come into effect July 1, the Pioneer spent time talking with Lawrence County State’s Attorney John Fitzgerald to get an idea of what questions still remain at the state level.

“I think it’s a very complex set of circumstances,” Fitzgerald said. “It’s 32 pages of statutes in the (code) book. It’s 95 sections, this is (Initiated Measure) 26, it’s now codified as SDCL 34-20G, that’s the citation to medicinal marijuana. … It allows persons who have a medical marijuana card to possess three ounces or less of what they call cannabis which is the marijuana plant, and concentrates from cannabis in an amount that is to be established by the Department of Health.”

Why can we legalize marijuana if it’s still federally illegal?

Although marijuana remains illegal at the federal level, most states have adopted some form of marijuana legalization. Only 13 states do not allow marijuana. According to basic civics, Fitzgerald said federal laws supersede state laws, but in 2013, the Department of Justice issued a memo signed by then U.S. Deputy Attorney General James M. Cole, which directed federal law enforcement to show restraint when dealing with marijuana prosecutions in states that have legalized the drug to some degree. This allows the federal government to overlook the apparent violations to federal marijuana laws as long as the legalized marijuana statues adopted by those states prevent the distribution of marijuana to minors; prevent revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels; prevent the diversion of marijuana from states where it is legal under state law in some form to other states; prevent state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity; prevent violence and the use of firearms in the cultivation and distribution of marijuana; prevent drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use; prevent the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and prevent marijuana possession or use on federal property.

“So the federal government took a hands-off position with the marijuana law enforcement, so you’ve seen a proliferation of laws that have authorized marijuana for medicinal and recreational purposes that, when you get right down to it, would be a basic violation of the supremacy clause and the Controlled Substances Act,” Fitzgerald said. “The federal government, at the present time, has the authority to go into any of these states that have legalized marijuana for medicinal or whatever purposes and shut them down and arrest the people that are involved because it’s against the federal law. That has not changed. The Controlled Substance Act still exists.”

Who can get a medical marijuana card?

South Dakota residents with a qualifying condition will need to obtain a written certification from a practitioner (defined in the law as a physician who is licensed with authority to prescribe drugs to humans. In relation to a nonresident cardholder, the term means a person who is licensed with authority to prescribe drugs to humans in the state of the patient’s residence.) and then apply for a registration card from the South Dakota Department of Health. According to the law, qualifying conditions include a chronic or debilitating disease, medical condition or a treatment that produces one or more of the following: cachexia or wasting syndrome; severe, debilitating pain; severe nausea; seizures; or severe and persistent muscle spasms, including those characteristic of multiple sclerosis; or any other medical condition or its treatment added by the South Dakota Department of Health.

“If you pay the fee and submit the application for your medicinal marijuana card, you are legal then to go ahead and get marijuana and the concentrates … while your application is pending,” Fitzgerald said. Even if an application were denied, any cannabis products obtained by the applicant while it was pending would still be considered legal up until the date of the denial.

“But there’s nothing in the law that prohibits you from reapplying,” Fitzgerald added.

In the state of South Dakota, you have to be at least 21 to possess any tobacco products, however, Fitzgerald said as IM 26 reads today 18 year olds are eligible for medicinal registration cards.

“This (law) would allow the ingestion of marijuana by persons 18 and older, plus an exception if you’re under 18,” he said.

According to section 33 of the law, the Department of Health will be allowed to issue a medical registration card to minors as long as the minor’s custodial parent, or legal guardian understands the risks and benefits to using marijuana as a treatment and agrees in writing to acquire and distribute the treatment as the minor’s designated caregiver. Although this seems to fly in the face of the Cole Memorandum’s exception to allowing marijuana to be distributed to minors, other states with medicinal marijuana also allow it. Section 95 of the law states that the Department of Health and the Department of Education must establish a policy to allow the distribution of medicinal marijuana to minors in schools, and that the departments should use Colorado Revised Statute 22-1-119.3 as the template for that policy.

“I think that some people think that, ‘oh my goodness now there’s going to be smoking in schools,’ no absolutely not,” Fitzgerald said. “They still have the right to not allow that to go on.”

Fitzgerald said as the law reads, it looks like the minor’s custodial parent, or legal guardian would need to be present at the school at the time of distribution. No medical cannabis products would be distributed to any student by any school personnel, unless that person is the registered caregiver for that particular minor.

Sections 51 and 53 of the law pertain to what Fitzgerald called the “after the fact defense.” It states, basically, that as long as the person has the stated professional opinion of a physician that using marijuana as a treatment would benefit them, and as long as the person is only in possession of the allowable amount of cannabis product, and was using the cannabis only to treat their debilitating condition, and they were the only one to have access to the cannabis product; that could be used as a defense for being in possession of marijuana without a registration card.

“Read together, (sections 51 and 53) create an after the fact/after an arrest affirmative defense,” Fitzgerald said. “That defense would be asserted after arrest in a criminal prosecution and then could result in a finding of not guilty or the prosecution dismissing the charges.”

Where can cardholder get cannabis products?

The law also contains a reciprocity clause, which will allow out of state cardholders to participate in the law.

“So if you’ve got a medical marijuana card from another state then South Dakota, by law, will recognize that right that you have,” Fitzgerald said.

Out of state cardholders will still need to adhere to South Dakota’s medical marijuana regulations, which limits the amount of marijuana they can possess to three ounces, but it does not yet limit the amount of cannabis products such as oils, extracts, and other consumables.

“So you could make the argument that because the rules haven’t been established that you’re not allowed to have any cannabis (products) even on an out of state (medical marijuana) license, but you’d definitely be able to have the three ounces or less.”

The law will allow cardholders to transport marijuana and cannabis products across state lines into South Dakota, but transporting any cannabis product through states without legal marijuana laws is still prohibited in accordance with that state.

Fitzgerald said that as of July 1 it looks like the medicinal marijuana law will only apply to out of state cardholders until the Department of Health develops the forms needed to start the registration process.

The only way for South Dakota residents to use medical marijuana is to get a registration card from the Department of Health, the only way to get a registration card is to have a certification form filled out by a doctor stating that you have a qualifying condition, and the Department of Health is not required to have those certification forms available until Oct. 29.

“(Come July 1) it looks like our law …applies only to non residents,” he said. “If you’re a South Dakota resident you can’t get one of these medicinal marijuana cards until they’ve got all of the regulations in effect, you’ve made application, so forth and so on.”

Additionally to cardholder registrations, any establishment looking to cultivate, test, manufacture, or sell cannabis products will need to register with the Department of Health as well as be licensed through the city in which they are to be located. Those registration documents will also not need to be available until Oct. 29.

How will the law be enforced?

Fitzgerald also pointed to sections eight and nine of the law, which states that cultivation facilities, dispensary facilities, or agents of those facilities are not subject to prosecution, search, seizure, penalty, or discipline for certain conduct by any authority other than the Department of Health.

“So they’re restricting law enforcement’s involvement in this,” he said.

Not only does the law restrict an officer’s involvement in searching those facilities, Section 16 states that “no law enforcement officer employed by an agency that receives state or local government funds may expend any state or local resources, including the officer’s time, to effect any arrest or seizure of cannabis, or conduct any investigation, on the sole basis of activity the officer believes to constitute a violation of the federal Controlled Substances Act, if the officer has reason to believe that the activity is in compliance with this chapter.”

“So marijuana and hash oil are on the Controlled Substances Act and they are prohibiting law enforcement from being involved in investigations of that nature, if you have reason to believe that it’s conducted pursuant to the medicinal marijuana laws.”

Fitzgerald said the section goes on to prohibit any state or local officer from providing information or logistical support to federal law enforcement as it pertains to medical marijuana.

“Hands off,” he said. “They want local law enforcement not to be involved in investigations or sharing information with federal law enforcement about medicinal marijuana and the hash oil products that come from the marijuana plant.”

Although state and local law enforcement is greatly restricted from interfering with the cultivation, manufacturing, testing, and distribution of marijuana, many municipalities are adopting ordinances to prohibit smoking or consumption of cannabis products in public places. During the last legislative session, Rep. Mary Fitzgerald, R – St. Onge, who also happens to be married to John, was the first to introduce a set of bills, which would introduce common sense regulations on cannabis consumption and operating motor vehicles. House Bill 1160 would have set an intoxication limit similar to a blood alcohol level, but was deferred to the 41st day, which basically killed the bill. Another, House Bill 1061, sought to establish regulations similar to open container laws while operating a motor vehicle, but was altered to only prohibit the driver of the vehicle from consuming any marijuana product while operating the vehicle.

As a prosecutor, Fitzgerald said he hopes to see the legislature develop a more coherent set of standards for determining impairment regarding marijuana.

“There’s got to be a set, objective standard where … the public then knows that you can’t have too much, and the juries know that there’s a level and the judges know,” he said.

What are cannabis products?

Marijuana refers to the dried leaves, flowers, stems, and seeds of the cannabis plant. It is primarily associated with being smoked like tobacco. Tetrahydrocannabinol delta 9, or THC, is a chemical contained within the plant itself that produces the intoxicating effect and generates the “high feeling” associated with marijuana consumption.

John Fitzgerald said that in addition to the medical marijuana use card, the law also allows folks to register to grow their own plants, with a minimum of three plants to be grown.

“It is kind of an anomaly, a uniqueness to this statute that the people voted for,” he said of the three-plant minimum.

Fitzgerald described the cannabis concentrates as hash oils, or any derivative from the cannabis plant, which can be used in the creation of edible marijuana products.

“They call it cannabis extractions, they call it oils, they call it edibles, but ultimately the Tetrahydrocannabinol delta 9 (THC) that has the intoxicating effects, and/or medicinal effects can be extracted from the marijuana plant fairly simply by the use of solvent based chemicals.”

Mixing dry cannabis leaves with a solvent such as ethanol extracts the oil from the plant. Then the liquid is run through several filtrations before being boiled to allow the harmful solvent to evaporate leaving only the pure oil concentrate.

“This is where the danger could lie in these solvent based marijuana concentrates, because you have to use heat to evaporate off what is typically a flammable liquid.”

Once the oil is extracted and fit for consumption, it can be incorporated into other consumable medium such as gummies, baked goods, drinks, and pills and capsules.

The law specifies that cardholders will be allowed to possess up to three ounces of marijuana, but does not specify how much cannabis concentrate the cardholder may possess.

Although a cardholder may be able to grow their own plants, the law prohibits the manufacturing of any cannabis concentrates or extracts by any entity other than a registered cannabis manufacturing facility.

“So that prohibits (individuals from making their own hash oil), but because it doesn’t prescribe an actual punishment, the law says that is a Class 2 misdemeanor,” Fitzgerald said.

A Class 2 misdemeanor is punishable by no more than a $500 fine and/or no more than 30 days in jail.

“A Class 2 misdemeanor would be a kin to speeding on the highway, (or) open container in a motor vehicle, so there is very little enforcement of that particular prohibition in our law at the present time,” Fitzgerald said.

Due to the extreme potential danger associated with processing cannabis derivatives, Fitzgerald said in Colorado, regulations have been put in place to make the illegal manufacturing of hash oils a much more serious crime.

“Very quickly after they legalized this stuff they said, ‘fine, but nobody’s going to be making this stuff other than under really stringent conditions with licenses and regulation,” he said. “They’ll put you in prison for making hash oil.”

That’s one aspect of Colorado’s marijuana laws, Fitzgerald said he would like to see emulated in South Dakota.

“(IM 26) got it kind of right because they prohibited it, but it needs to be way more of a felony so there’s a real strong deterrent for people trying to make this stuff at home,” he said. “When you start to have people growing marijuana you will then have an excess product and then it’s going to be, ‘well, let’s make something even more powerful.’”

When will all of this get figured out?

Fitzgerald explained that it’s typical for new laws and statutes to be implemented with some inconsistencies and gaps in legislative directives.

“Lots of statutes are written where there’s a controversy and a conflict in facts and then we have an adversarial proceeding and then a judge will make rulings based upon specific facts and so over a period of time, you get answers to a lot of questions,” he said. “The legislature can amend these statutes.”

In November 2020, South Dakota voters passed IM 26 with an undeniable margin of 69.92%. In January, when legislators gathered in Pierre for the 2021 legislative session, many of them were hard pressed to wrap their heads around the implications of the new law.

“We now see that IM 26 is 32 pages of statutes and then you saw that what was on the ballot was an explanation that was really, like, a paragraph and maybe there was an Attorney General’s Office explanation that was another paragraph so the general public did not get all of the information,” Fitzgerald explained. “These are questions. Laws are always subject to interpretation by courts in factual controversies so there’s questions that arise.”

IM 26 was presented as a jumping off point to bring legal marijuana use to South Dakota, and despite having more than six months to come up with guidelines to help facilitate its success, there has been very little progress made. With so many other states passing similar laws, and having the benefit of learning from their missteps, why has South Dakota come such a short distance on this progressive matter? Is IM 26 being deliberately set up for failure? Is the will of the people doomed by unwillingness to participate from our legislators?

With 13 days until medical marijuana becomes everyone’s problem, there seems to be more questions than answers from the people entrusted to guide us.  

“That’s not to say the department won’t draft a rule,” Fitzgerald said. “But remember, the rules have not been drafted.”

Bonus round: What about Amendment A: recreational marijuana?

Briefly, Amendment A (the recreational marijuana amendment) states: “Subject to the limitations in this article, the following acts are not unlawful and shall not be an offense under state law or the laws of any local government within the state or be subject to a civil fine, penalty, or sanction, or be a basis for detention, search, or arrest, or to deny any right or privilege, or to seize or forfeit assets under state law or the laws of any local government, if the person is at least 21 years of age:

(1) Possessing, using, ingesting, inhaling, processing, transporting, delivering without consideration, or distributing without consideration one ounce or less of marijuana, except that not more than eight grams of marijuana may be in a concentrated form;

(2) Possessing, planting, cultivating, harvesting, drying, processing, or manufacturing not more than three marijuana plants and the marijuana produced by the plants, provided:

(a) The plants and any marijuana produced by the plants in excess of one ounce are kept at one private residence are in a locked space, and are not visible by normal, unaided vision from a public place;

 (b) Not more than six plants are kept in or on the grounds of a private residence at one time; and

 (c) The private residence is located within the jurisdiction of a local government where there is no licensed retail store where pursuant to this article. Marijuana is available for purchase pursuant to this article.

(3) Assisting another person who is at least twenty-one years of age, or allowing the property to be used, in any of the acts permitted by this section; and

(4) Possessing, using, delivering, distributing, manufacturing, transferring, or selling to persons twenty-one years of age or older marijuana accessories.”

“That’s in much more of a state of flux,” Fitzgerald said. “The recreational marijuana (amendment), Amendment A, was voted on and passed by the people and then there was an attack to the law that was venued in Hughes County, and a circuit court judge in Hughes County said that that constitutional Amendment A was unconstitutional and so then there was an appeal to the South Dakota Supreme Court.”

In February Sixth Circuit Court Judge Christina Klinger ruled in a case, which was brought vicariously by South Dakota Gov. Kristi Noem, that Amendment A was unconstitutional because it concerned both marijuana and hemp and was therefore in violation of Article XXIII, of the South Dakota State Constitution.

It’s now left to the South Dakota Supreme Court to determine if Amendment A is constitutional or not. If they rule in favor of the amendment that will supersede Klinger’s ruling and effectively legalize adult recreational marijuana use throughout the state. If the Supreme Court rules in agreement with Klinger, then recreational use will be taken off the table, and we will be left only with medicinal use.

“The South Dakota Supreme Court has jurisdiction over the entire state, so what they say goes and is final,” Fitzgerald said.

However, Amendment A was voted on, passed and codified as law; if the Supreme court fails to make a determination before July 1, Fitzgerald said Klinger’s ruling would apply only in the circuit over which she presides, and not across the entire state. That would effectively make adult recreational marijuana use legal in South Dakota except in Bennett, Gregory, Haakon, Hughes, Hyde, Jackson, Jones, Lyman, Mellette, Potter, Stanley, Sully, Todd, and Tripp counties which make up South Dakota’s sixth circuit.

“That would be a definite interpretation of it,” Fitzgerald said.

For more information on medical marijuana from the Department of Health, visit www.doh.sd.gov/news/MedicalMarijuana.aspx.

To see the law in its entirety, visit www.sdlegislature.gov/Statutes/Codified_Laws/2078844.

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