Marijuana violations and the court system

Detective Justin Lux of the Deadwood Police Department shows an example of marijuana that was legally purchased in Colorado in 2017 and seized locally as evidence, as it is illegal to possess in South Dakota. The package contains 28 grams. Once ounce is equal to 28.3 grams, so this amount would be a legal amount under the proposed legislation.

Pioneer photo by Jaci Conrad Pearson

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NORTHERN HILLS — With the possible legalization of recreational and medical marijuana on the horizon, local state’s attorneys shared stats on their caseloads involving these types of charges, as well as weighing in on what the ramifications might be in regard to prosecuting previous cases come July 1.

“What becomes legal July 1, if there’s not a successful challenge to the law, is one ounce of marijuana or less and/or eight grams of hash oil or what they call THC concentrates and you have to be over 21,” said Lawrence County State’s Attorney John Fitzgerald.

Currently, the charge closest to the recreational, or personal use, legalization is possession of 2 ounces or less of marijuana, a Class 1 misdemeanor, punishable by up to one year in jail and a $2,000 fine. From there, based on the amount of pot possessed, charges increase to felony possession.

Clerk of Courts Carol Latuseck said that from Jan. 1 to Dec. 31, 2020, there were 88 cases prosecuted in Lawrence County involving this charge.

Currently, possession of a controlled drug or substance in the form of hash oil is a Class 5 felony punishable by up to five years in prison and $10,000 in fines.

Hash oil is the substance found in THC vape cartridges.

Lawrence County State’s Attorney John Fitzgerald said his office prosecutes an average of 10 cases per month involving the felony charge involving hash oil concentrate, based on December 2020 numbers.

“Those will be the THCs that will be made legal, the concentrates in quantities of eight grams or less for a 21-year-old. “You have to understand, also, that that doesn’t mean that we have that many less cases, because, typically, when somebody is found in possession of hash oil, it’s typically in an automobile,” Fitzgerald said. “And, so, they’ve been stopped for a traffic infraction, the law enforcement officer’s gone up to the vehicle, and they are either recently smoking marijuana, which is obvious, or they’ve been drinking alcohol. So, sometimes these hash oil cases result as an arrest for a DWI and while they’re inventorying the car, they’ll find hash oil in the car.”

Another example would be a traffic stop where law enforcement smells marijuana, a search is conducted, and hash oil will be found.

“So, even though those substances could potentially be made legal come July 1, that won’t stop the fact that these people will still be getting arrested, potentially, for driving under the influence of alcohol or driving under the influence of marijuana. Because that’s still illegal,” Fitzgerald said.

Fitzgerald said that in most of the hash oil cases, it is probably unlikely that the only charge that was brought was the hash oil.

Fitzgerald said there are two precedent-setting cases involved with the proposed legalization and legislation: United States vs Chambers, and the State of Colorado People vs Boyd.

In United States versus Chambers, a U.S. Supreme Court case back to prohibition days, an individual was accused of possessing liquor in violation of prohibition.

“While that prosecution pended, prohibition was ended,” Fitzgerald said. “The 21st Amendment was ratified, so it was no longer legal to have alcohol because they changed the constitution by amendment. The U.S. Supreme Court said that case had to be dismissed because the law under which he was being prosecuted no longer existed. Even though, he had violated the law prior to the enactment of the 21st Amendment.”

In People vs Boyd, an individual sold less than an ounce of marijuana to an undercover agent.

“They had a trial in 2011 and he was convicted by a jury of selling a small amount of marijuana to an undercover agent,” Fitzgerald said. “In 2012, Colorado legalized marijuana and Boyd’s case was pending on appeal. He was convicted and he appealed his conviction to the Colorado Supreme Court. The law got changed while he was convicted but his appeal was pending, and the Colorado Supreme Court said he could not be prosecuted. The case had to be dismissed because even though he’d been convicted, before the law was changed, he was appealing it, so the process was still going on. Therefore, the case had to be dismissed. So that’s the law.”

So what does that mean?

“That means that any person with one ounce of marijuana or less or eight grams of the concentrate who was 21 will, if that law is not ruled unconstitutional, those cases, if they’re pending … have to be dismissed,” Fitzgerald said. “That’s the law. So, I’ve got to follow the law.”

Fitzgerald said that his office is following the advice of the Attorney General’s Office that says that these laws remain in effect until July 1.

Fitzgerald said that, there will be fewer marijuana cases and it will free up some time.

“But those aren’t the cases where our time and focus is placed,” he said. “Sexual assault cases, burglary cases, serious physical assault cases and death cases. They take more of our time than the marijuana cases.”

Fitzgerald said it could be that the legalization of marijuana will produce other kinds of “spin-off” crimes.

“What I mean by that is that there will be a black market, probably, for marijuana and the state will have regulations on what to do when people have large quantities of marijuana and they’re violating different types of regulations dealing with the regulation of marijuana,” he said. “Sales, production. So, there can be new laws that will be created, too, that will need to be enforced.”


Meade County State’s Attorney Michelle Bordewyk said the majority of her county’s cases would fall under the new legalization legislation.

In 2020, the Meade County State’s Attorney’s Office prosecuted 1,490 criminal cases.

Bordewyk said out of those, 338 were felony and misdemeanor drug cases and estimated that around 60% would be marijuana or marijuana-derivative cases.

“But I don’t know out of those how many are marijuana versus methamphetamine, cocaine, and heroin,” Bordewyk said. “The way the statutes were written is that plant-based marijuana … the marijuana that generations in the 60s and 70s, plant-based marijuana is usually a misdemeanor. Then these derivatives, which are chemically-altered like hash and hash oil, hashish, those are felonies. Marijuana, if you have two ounces or more, and that’s usually the plant-based stuff, that would be a felony. And then it just depends from there how much marijuana you have, the level of felony increases.”

Bordewyk said her office continues to prosecute cases from the rally, where individuals had marijuana or marijuana derivatives.

“And we’ll just probably evaluate them on a case-by-case basis as that July 1 date comes closer,” Bordewyk said. “Our theory, our philosophy, is, we could still proceed prosecuting those cases because the individuals possessed the marijuana before the law became effective.”

Asked if she had any further comment, Bordewyk pointed out the following.

“Obviously, you can’t consume marijuana and drive,” she said. “That’s still going to be a crime. Individuals under the age of 21, they’re not allowed to possess this, like, I believe the constitutional amendment allows people to have a personal use amount of one ounce. If you’re a person under the age of 21, you’re not allowed to possess marijuana. It’s kind of like alcohol. People who are interested in using marijuana once it becomes legalized should review that amendment and make sure that they’re following the law and that they’re able to consume it.”


Butte County State’s Attorney Cassie Wendt said total counts of felony and misdemeanors alleging drug or alcohol offenses in 2020 was 397, and that her office prosecuted 42 misdemeanor counts of possession of marijuana less than two ounces, five counts of possession of more than one-half a pound of marijuana, three counts of possession of marijuana with intent to distribute, and four counts of ingestion of marijuana.

“Possession of more than half a pound would be a felony, but basic possession would be a misdemeanor,” Wendt said.

Wendt shared several concerns she sees with the possibility of legalizing marijuana in South Dakota.

“I do a lot of work with youth in Butte County and am pretty involved with the youth alcohol and drug evaluation and treatment programs and I have significant concerns that our youth numbers are going to go up dramatically. I also have significant concerns about our other drug counts going up, as well,” Wendt said. “Based upon my career and what I see in Butte County, I would call marijuana a starter drug that leads to the use of more drugs. And my biggest fear is that when we’re talking about marijuana, especially the high-potency THC that you find in the edibles and the hashish and the wax, I have seen a handful of cases that that use leads to a psychosis, which is pretty concerning because then you have lifelong health issues.”

Wendt went on to share other concerns.

“I think our DUI charges are going to go up as we get started into this realm as well and we are starting to see more drivers who are intoxicated due to marijuana consumption,” she said.

Wendt said it’s sometimes difficult to discern whether DUIs are in regard to alcohol, marijuana, or other drugs.

“A lot of times it’s not one or the other. It’s both,” she said.

“And so we do see a lot of what we call combination DUIs, where they might have some alcohol in their system. It may not rise to the level of the .08, but they also have recent marijuana use, as well.”

Wendt said she expects that numbers will continue to rise.

“I can tell you our zero tolerance DUIs, which are DUIs of people under the age of 21 who don’t meet the .08 standard, those have doubled in Butte County in the last year,” she said. “We had four in 2019 and we had eight last year and I expect that those will continue to rise, as well, as the youth start to … that marijuana is acceptable.”

Wendt also pointed out that statistics show that drug use may lead to property crimes, burglary, theft, and checking account insufficient funds.

“So, although it frees up the time we’re spending on marijuana, we are going to spend more time on intoxicated drivers, more time on property crimes like burglary and theft,” she said. “Because when you have individuals who use drugs, often times they don’t stay with that drug. So I expect our controlled substances, like methamphetamine, heroin, and cocaine to go up, as well.”

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(1) comment

Mr. Silppyfist

"Possible" legalization? The residents of South Dakota approved both measures. There should be nothing 'possible' about it.

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