Hashing out marijuana laws in SD

Courtesy photo

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

SPEARFISH — As the July 1 deadline for the legalization of medical marijuana in South Dakota fast approaches, many folks across the state are left wondering why legislative lawmakers seem to have waited so long to implement regulatory changes to the Initiated Measure 26, the ballot measure approved Nov. 3, 2020 by a 70% margin.

The Pioneer reached out to several members of the state legislature to find out what work was done during the last session, and what is being done now to address legal marijuana use in South Dakota.

Rep. Mary Fitzgerald, R-St. Onge, was the lone legislator who got a regulatory bill passed.

“I think it was paramount among almost every legislator there to follow the will of the people,” Fitzgerald said. “We would have discussions all the time on what we were going to do, whether we liked it or not.”

Although the legislative body seemed to accept IM 26, Fitzgerald said there were a tremendous number of legislators who were “naïve” about marijuana use, and the amount of legislative involvement needed to implement laws governing the drug effectively.

“I don’t want to say anything bad about any legislator, I just think that maybe they didn’t think it was an important thing, maybe it was too controversial, maybe they just weren’t interested in it,” she said.

Fitzgerald said she probably had a bit more background knowledge about marijuana law because of her husband, Lawrence County State’s Attorney John Fitzgerald.

“People seem, maybe a little bit disinterested or a little bit hard (pressed) figuring it out, ‘well it doesn’t effect me, I don’t smoke marijuana,’ but this person could hit some member of your family and kill them, so therefore it would effect you,” she explained. “Even people that I really knew and respected said, ‘enough with you and your marijuana stuff,’” she said. “And then, months later, when session was over with, they’d go, ‘oh wow, we didn’t know this and we didn’t know that.’”

Fitzgerald’s only bill, that passed, House Bill 1061, will make it illegal to consume marijuana in any form while operating a motor vehicle, and to smoke marijuana as a passenger. She introduced a second bill, House Bill 1160, which would have set a level of presumed impairment at two nanograms of delta 9-tetrahydrocannabinol per milliliter in a person’s blood, however, that bill was not passed.

Fitzgerald said she drafted a third bill, but after the difficulty of trying to get her others through, coupled with her other commitments on the appropriations board, she chose not to introduce it.

“I had such difficulty with the other two that I was like, ‘I’m not bringing a third one on,’” she said. “I do think it was an important issue, but everyone thinks it’s a small minority of people (that will use medical marijuana).”

The other bill that passed regarding marijuana was an appropriations bill funding a special summer study committee to spend time after the session ending, studying marijuana laws, and to bring recommendations to the floor at the next legislative session.

“At the conclusion of the first (summer study committee) meeting we wanted to be more focused, so we broke up into a medical marijuana sub committee and then an adult use or recreational use sub committee as well,” Sen. Bryan Breitling, R-Miller, who chairs the committee, told the Pioneer.

Although experts and lobbyists were brought in during the legislative session to help educate the lawmakers, Breitling said there wasn’t enough time to form those committees, and with the overall lack of knowledge on the subject, legislators were hesitant to set any regulations.

“Not all of the legislators were comfortable in the background that they had to make sweeping legislation,” he said. “The opportunity for researching other state’s the opportunity for doing a lot of background is very minimal during that time so we did the best we could.”

Despite taking effect on July 1, the statutes laid out in IM 26 say the South Dakota Department of Health (DOH) doesn’t need to begin implementing its medical marijuana program until October, and it doesn’t need to start issuing medical use cards to residents until November; which means there still won’t be any way for South Dakota residents to poses or consume medical marijuana until the DOH starts issuing cards. Even then, production and distribution licenses may not be issued for cannabis establishments until October meaning the only way for South Dakota cardholders to obtain medical marijuana would be to travel to a state that has also legalized the drug; and it should be noted that even with a medical use card, it is still illegal to transport any marijuana products across the border of any state which does not have legal marijuana laws.

“It’s a little backwards, quite frankly,” Breitling said. “But at any rate that’s the way the law was written in the initiated measure.”

Breitling said the subcommittees will continue to meet throughout the summer and will include several visits to other states that have implemented marijuana laws, to review their facilities and practices.

From those informational meetings and visits, the committees will develop regulatory recommendations for the law which will be brought to the full legislature when they meet in November at a special session to discuss redistricting. From those recommendations, Breitling said new bills would be drafted and discussed at the next legislative session.

Breitling named law enforcement, public safety, user diagnoses, potency levels, and employer’s rights as examples of some of the issues the committees are looking at.

“All those things we need to understand, get some information on, and build some legislation on to improve IM 26,” he said.

IM 26 doesn’t just let people use marijuana or cannabis products to treat their pain; it also brings an entirely new industry to South Dakota. Breitlinger said the fact that IM 26 creates a new industry in the state also adds to the complexity of the legislative work.

“We just need to make sure that as this industry begins in its infancy and then matures over the years, that we do it from a safe manor and an effective manor that’s supportive of what the voters wanted,” he said. “To make it safe, to make it effective to make it long standing, there needs to be tweaks to the legislation.”

“We’re a reactive body,” explained Sen. Lee Schoenbeck, R-Watertown, who is the president pro tempore of the South Dakota Senate. “Somebody puts a bill in and we respond to it.”

Schoenbeck said the role of the legislature is to operationalize the laws that are passed by the people, and with medical marijuana putting so many new decisions and direction before lawmakers, it’s vital that progress be made in educating them so they know what laws to make.

“For me, ‘progress’ is certainty and quality of law,” he said. “So that doesn’t mean you’re for or against people smoking pot on the corner, but you ought to be in favor of having certainty about what the rules are so what ever the law is, it can be effective.”

Amendment A, the constitutional amendment that legalizes recreational marijuana, which passed with 54% of voters, is tied up in a lawsuit. The South Dakota Supreme Court is currently debating it. During the adult use subcommittee hearing Tuesday, one member anticipated the court would rule today, however as of press time, the Supreme Court had not issued a decision.

If Amendment A is struck down, Rep. Hugh Bartels, R-Watertown, who was leading the discussion, said it would work to provide “good, center of the road” proposals to legalize recreational use in the 2022 session.

“That topic was on the table this last session. It’s not going away,” Schoenbeck said. “If it doesn’t come (from the subcommittee) it will definitely come from some individual legislators.”

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