EDITOR’S NOTE: This is the fifth in a series of stories where the Pioneer will explore the legalization process of medical and recreational marijuana in South Dakota.
BLACK HILLS — As the residents of South Dakota wait for the state Supreme Court’s decision on the legal status of recreational marijuana use, local law enforcement agencies are left to field the question. ‘Is the personal use of marijuana legal?’
As it turns out, there is debate even amongst some top law enforcement officers.
In a previous interview with the Pioneer, Lawrence County State’s Attorney John Fitzgerald stated that there could be a legal argument made for recreational marijuana use as of July 1 regardless of Sixth Circuit Court Judge Christina Klinger’s ruling that Amendment A violated Article XXIII, of the South Dakota State Constitution, and therefore still illegal. It was later identified that Fourth Circuit Judge Kevin J. Krull of Meade County had also filled a ruling that Amendment A was unconstitutional on the same grounds.
“Typically these circuit judges have binding authority in their circuit, but one judge’s authority or decision in a circuit is not necessarily binding on every other circuit in the state, that’s usually reserved for the South Dakota Supreme Court. What they say goes, that’s the last and final decision to be made,” Fitzgerald asserted.
However, Suzanne Starr, director of policy and legal services at the Supreme Court, told the Pioneer that any circuit court’s ruling does cover the entire state.
“Our position is that the circuit court ruling from the 6th Circuit stands until the Supreme Court says otherwise, and so the 6th Circuit ruling applies state-wide and that’s the position we’re in until the Supreme Court says otherwise,” she said.
Fitzgerald, however, still maintains that there is room for argument.
“You don’t have an actual stay one way or the other issued by a court.”
A “stay of execution” can be applied to postpone the enforcement of a ruling while that ruling is being appealed but since neither the court nor the group appealing the court’s ruling have issued a stay, Fitzgerald said the waters are just murky enough to spark a valid debate.
In the one corner — the residents of South Dakota, and non-residents for that matter, are now legally allowed to possess and use marijuana as long as they have a valid medical use card and are within the allotted possession amount of no more than three ounces. However, because there is currently no mechanism set in place for South Dakota residents to obtain a medical use card, there’s still no legally valid way for them to possess marijuana. And then there is another murky legal loophole of receiving a tribal medical card.
In the other corner — if the Supreme Court finds in favor of the circuits courts rulings, that could simplify things by making owning a medical use card the only legal way to possess marijuana. However, if the court allows recreational use then any resident over the age of 21 will be able to possess and use marijuana at their discretion, albeit in lesser, allotted amounts.
To further complicate things, there is a provision written into the medical marijuana law, which allows residents facing prosecution for possessing marijuana without a valid card to obtain a card at any time prior to conviction and have the charges dismissed.
This can create massive roadblocks and loopholes when applied to marijuana enforcement.
In an attempt to help clear the way a bit, the South Dakota Department of Public Safety issued a framework for enforcement, and supported by Gov. Kristi Noem, which law enforcement agencies across the state could use to help guide them until either the Supreme Court comes to a ruling, or the Department of Health (DOH) implements its regulatory program.
The framework guidelines state that “(Law enforcement) will not, at the scene of a stop or interaction, arrest a South Dakota resident who is unable to present an unexpired medical cannabis card, as long each of the following apply:
The individual possesses no more than three ounces of natural and unaltered marijuana.
The individual claims at the time of the interaction that the medical cannabis is to treat or alleviate a debilitating medical condition as defined by the Department of Health.
The individual produces printed or electronic documentation relative to the debilitating medical condition from a licensed medical doctor.
(Law enforcement) personnel will not arrest nonresident cardholders for possession of cannabis, nor will they seize the cannabis or any associated paraphernalia, if the following applies:
The cardholder presents an unexpired medical cannabis card issued by another state; and he or she possesses no more than three ounces of natural and unaltered cannabis. The nonresident card provision applies in this instance, so long as the cardholder is an enrolled tribal member and presents an unexpired medical cannabis card issued by the resident’s tribe.
Nothing in the framework will prevent or de-prioritize the enforcement of South Dakota’s impaired driving, drug possession, or drug trafficking laws after July 1. This framework does not require any local law enforcement agency to change its own policies and procedures, nor is it intended as a substitute for law enforcement’s judgment and discretion in the field.”
So what are our local law enforcement agencies doing when it comes to enforcing pot laws?
Most law enforcement agencies in the Black Hills are implementing this framework as a working model for interactions involving marijuana until a more, well-defined set of regulations can be applied.
“The bottom line is we don’t have an absolute set of regulations. Once we have regulations, the people who have not complied with them are certainly going to be looked at in a different light than they are right now,” Pennington County State’s Attorney Mark Vargo explained.
It is the state’s attorney’s office in each county that ultimately determines whether a suspect will be prosecuted after an arrest has been made; however, with the controversy swirling around the current state of marijuana in South Dakota, it can be difficult for officers interacting with people in possession to know when an arrest should be made.
“The fact that we have written into (the law) a provision that allows people to, after the fact, claim that the marijuana that they possessed is legal because they should have been able to get a marijuana card, that’s not fair even to, really, the offender because then they don’t really know until after they get arrested whether or not they were guilty,” Vargo said. “I think people should be on notice of when they’re behaviors are guilty or not guilty, this kind of gives them and out, but maybe they won’t be able to take it. Who knows whether you’ll get a doctor who says you have a qualifying medical condition.”
To help ease the uncertainty of effecting arrests, Vargo and several other state’s attorney’s in the area have recommended that officers forgo making arrests on minor possession charges, and instead, officers should seize the material and issue a citation, or warrant for arrest, which will be submitted to the state’s attorney’s office to await action.
“The statute of limitations on most crimes is seven years so when something has been submitted for a warrant we do have the luxury of having the opportunity to review the facts and any changes in the law,” Fitzgerald, however, he was quick to explain that the state’s attorney’s office only can make recommendations to law enforcement based. “We do not dictate to local law enforcement what they do in their role in making arrests and writing reports.”
“If the individual does not have a license, but has personal use amount that is permitted by Initiated Measure (IM) 26, and claims at the time that marijuana is to treat or alleviate one of the debilitating medical conditions, listed in IM 26 the Meade County State’s Attorney’s Office will likely not prosecute the individual,” Meade County State’s Attorney Michele Bordewyk said. “Our office has asked law enforcement not to make arrests regarding personal use of marijuana until a decision has been made by the South Dakota Supreme Court.”
These instances are only involving personal use amounts of three ounces of marijuana, or eight grams of it derivatives, including oils, waxes, and edibles. Higher amounts of possession will still be prosecuted normally.
Vargo mentioned a recent case involving a suspect who was arrested with five ounces of marijuana in their possession. He said that arrest was prosecuted by his office as it was in clear violation of the three-ounce personal use provision of the law.
“On that case we did it more immediately, some of them might go into a holding pattern to determine what happens with recreational marijuana,” he said.
In South Dakota, illegal possession of drug paraphernalia is a Class 2 misdemeanor, punishable by up to 30 days in prison and a $500 fine. Possession of a prohibited substance for the purposes of intoxication is classified as a Class 1 misdemeanor and is more severely punishable by up to a year in prison and a $2,000 fine.
“(We’re) being a little bit more discretionary when we deal with the kind of stuff,” Paul Witcraft, Whitewood Police chief said. “We’ve been kind of lucky where we haven’t had any big loads or anything like that.”
Witcraft said, in response to the uneven footing marijuana possession seems to be on, his department has dropped the charge of marijuana possession to a Class 2 misdemeanor, but even then he encourages his officers to use even more discretion.
“The people we’ve been dealing with are mostly, I think from out of state … they aren’t really familiar with what’s going on, so we just use our discretion - seize there stuff, write them a citation and send them on there way,” Witcraft said.
Deadwood Police Chief Ken Mertens said he sees no reason to ease up on criminal charges if the individual is clearly in violation of the law.
“If you don’t have the medical marijuana card, you’re still in violation of South Dakota codified law so you can be arrested, but generally speaking we try to avoid that as much as we possibly can depending on the amounts they have with them,” he said. “Normally for Class 1 misdemeanors they go to jail and they get processed out, but it’s up to the officer’s discretion.”
Officers always have a certain amount of discretion when interacting with the suspect in a violation interaction. Although the rules on possessing marijuana are ill defined at the moment, individuals are still accountable for their actions while under the influence of marijuana.
“Behaviors that arise from marijuana use are obviously still going to be prosecuted just as if they were when marijuana was fully illegal. The fact that you may even have a marijuana card doesn’t entitle you to break the law in other ways,” Vargo said.
Driving while impaired, possession of a loaded firearm while intoxicated, consumption of marijuana in a motor vehicle, and violating individual city or county ordinances that prohibit the consumption of marijuana in public are all actions that can result in being arrested without being prosecuted for possession.
Local chiefs said there is currently no way to test the presumptive impairment level of an individual with marijuana as there is with alcohol. But Trooper Josh Lewis, with the Colorado State Patrol, said his agency has been beta testing a method to test active THC levels in the field, such as a Breathalyzer for alcohol, but that methodology has not proven out.
“It was all done on a voluntary basis for folks that we placed under arrest but ultimately we have not made a determination on rolling them out widely in the fields,” he said.
“There’s a blood test that will just show whether (marijuana) in your system or not but there’s nothing that says, ‘above this level everybody is presumed to be (intoxicated),” Meade County Sheriff Ron Merwin added.
Mertens added that if an officer does feel that an individual needs to be taken into custody after conducting a field sobriety test, his department and several others have designated drug recognition experts on staff who would be called in to evaluate the suspect.
“A lot of times you display similar symptoms of impairment with illegal drugs as you do with alcohol,” he said.
Drug recognition experts are officers that have undergone an extensive training program designed to equip them with the knowledge and experience to determine — to varying degrees — the level of impairment an individual is displaying through interactions.
“They go through an extensive training,” Mertens said. “They do two weeks in Pierre, that’s the initial class … and then my officer, the class he was in flew to Sacramento, Calif., where they conducted field training exercises for the class.”
The Department of Health has proposed a set of regulations that could help shed some more light on who should and should not legally use marijuana throughout the state. It will hold a public hearing to discuss the proposed rules from 1:30-3:30 p.m. on Aug. 18. For more information, visit www.medcannabis.sd.gov.
The state legislation will meet in a special session in November; among the topics to be discusses will be further legislative action on the state’s marijuana laws.
In the meantime, the overall recommendation from law enforcement would be, if you were going to use marijuana, do it at home and stay home.
“I would just remind people to be safe and drive safe, and if you are using, don’t smoke and drive, keep everybody else’s safety in mind too,” Merwin said.
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