Unanswered questions

A worker holds up a jar with marijuana offered for sale at Montana Advanced Caregivers, a medical marijuana dispensary, Nov. 11, 2020, in Billings, Montana. Recreational marijuana initiatives passed in four states this year, from liberal New Jersey to conservative Montana and South Dakota. The results prove how broadly accepted marijuana has become throughout the country and across party lines. (AP Photo/Matthew Brown)

Newly passed marijuana measure, amendment mean lots of work ahead for Legislature

BROOKINGS – After South Dakota voters approved Constitutional Amendment A and Initiated Measure 26, which legalize recreational and medical marijuana, many questions remain. 

There are plenty of issues for law enforcement officials and state legislators to sort out, including how to restructure current marijuana laws to support the new amendment and initiative.

The Brookings Register spoke with Brookings County State’s Attorney Dan Nelson, District 4 Rep. John Mills and Brookings County Sherriff Marty Stanwick about what may be coming down the pipeline for the state.

According to the South Dakota Secretary of State’s website, IM 26 received support from 70% of voters, and Amendment A was approved by 54% of voters Nov. 3. The measures go into effect on July 1, 2021.

Ripple effect

Legalizing marijuana for those 21 and older could have a ripple effect.

“Anyone 21 years or older who possesses one ounce or less (of marijuana in any form) is legally able to do that come July 1. And anyone who is under the age of 21, this law does not apply; so the same marijuana statutes would apply,” Nelson explained. 

“So one of the questions that the Legislature is going to have to answer for these 18-, 19- and 20-year-olds is whether possession, ingestion of marijuana are going to be handled the same way that they are now. Is felony THC (tetrahydrocannabinol, the component that creates the “high”) oil going to be reduced to something like a Class 1 misdemeanor, or is it going to remain as a felony?

“Because here in Brookings County, a large portion of felony marijuana cases are that age range – those 18-, 19- and 20-year-olds who are in possession of THC oils, wax or edibles. Right now, these are classified as felonies because they are an ‘altered substance.’ So does the Legislature change that or keep it the same? That will be one of the biggest questions,” Nelson said.

Unknowns also remain on how marijuana may be distributed.

“The other question is how will this be administered in South Dakota in terms of it being sold. Because right now, Amendment A says that the distribution of one ounce or less between those who are 21 or older has to be done without consideration – and what consideration often means is money. So most of, if not all – I would say 99% of the cases here in Brookings County as it relates to marijuana often involve money being transacted between two parties,” Nelson said.

Amendment A authorizes the state Department of Revenue to issue marijuana-related licenses for commercial cultivators and manufacturers, testing facilities, wholesalers and retailers, according to the Office of the Secretary of State. Local governments may regulate or ban the establishment of licensees within their jurisdictions.

The amendment imposes a 15% tax on marijuana sales, with the revenue split between public schools and the state’s general fund.

Enforcement

Nelson noted that under federal law, marijuana is illegal and will remain so even after July 1. But how will enforcement at the state and county level be handled between now and July 1?

Defense attorneys working on behalf of those arrested for possession of one ounce or less of marijuana before July 1 will likely request continuances on those cases until after the law changes.

“So any cases that are brought between now and July 1, we would be tasked with handling a bunch of marijuana cases where July 1 would pass and now we’re left with prosecuting a substance that has been legalized,” Nelson said.

The attorney said that could be costly for the county.

“The county spends thousands of dollars of taxpayer money for criminal defense. Most individuals who are picked up on marijuana-related charges often request court-appointed counsel, and that counsel is financed with county taxpayer dollars. And so, one of the questions that is being asked is if it is a wise use of taxpayer dollars to have criminal defense attorneys brought in to defend marijuana cases that will continue past July and ultimately be dismissed. So we’re talking about potentially tens of thousands of dollars being spent on marijuana cases that happen from now to July 1,” Nelson said.

“I don’t think, in my opinion, a jury here in Brookings County – a majority of which will be made up of individuals who voted to legalize marijuana – would convict on a case that is centered around a substance that has now been legalized,” Nelson said.

The issue is not a simple as trying to prioritize and resolve those cases before July 1. 

“Brookings County has domestic violence, we have DUIs, we have meth distribution, we have sexual assault cases. We have a lot of other jury trials that would take priority over marijuana cases. And in the COVID-19 era, there is a reluctance and hesitation to conduct these jury trials because we’re trying to keep everyone safe – social distancing is a challenge in jury trials. So to prioritize marijuana cases between now and July 1 when that is going on, it becomes very hard to do so for those reasons,” Nelson explained.

Nelson said for first-time, non-violent offenders ages 18-20, entering the justice system for use or possession of marijuana, he’d like to utilize a new program, based off one that’s been successful in Brookings County for the past couple years.

“What I’d like to do is model it after our very successful underage drinking diversion program, which has, to date, generated over 2,000 hours of community service here in the City of Brookings. And what we’re seeing is that a lot of these individuals who complete this diversion program in the last two years, these offenders are not coming back into the justice system,” Nelson said.

This diversion program has the potential to begin before the end of the year, and Nelson is working with local law enforcement and several local nonprofits in the area to develop it. With successful completion of the program, Nelson said, participants’ charges would be dismissed.

Concentration

Nelson noted that Amendment A does not specify limits on the concentration of marijuana and its altered forms.

“The key to this part of the law is that it’s not the total weight of, say, the edibles. It’s the weight of the THC within the edibles. … And so to determine that, you’re going to have to have a pretty intense laboratory process to extract the THC from the food or the chemical that the THC is mixed with. That is going to require a much more elaborate testing process than what we currently have.”

Nelson also said employers are going to have to figure out how testing for marijuana will operate in the workplace. The THC in marijuana can remain within a user’s fatty tissues for up to 30 days without giving the user a high.

Lawmakers will also have to set a legal limit for driving under the influence of marijuana.

“Amendment A essentially blows up our entire marijuana statutory framework for those 21 and over. The judiciary committees in both the House and the Senate have their work cut out for them this spring,” Nelson said.

‘Occupy a lot of time’

State legislator John Mills said there are a plethora of issues with how marijuana is being legalized in South Dakota, primarily with the constitutional amendment.

“I just sense that it’s going to occupy an awful lot of time (in the Legislature), and I think that’s unfortunate, because we have, in my mind, a lot of other important work to do. … I don’t think it’s a good idea for South Dakota. It’s disappointing because we had a lot of out-of-state funding to push that initiative and the messaging was all one-sided, and any time you get a message that is so one-sided, it’s nearly impossible for the public to figure out what’s the truth.”

Mills said putting marijuana into the state constitution is wrong.

“We don’t do that for alcohol because it simply doesn’t belong there. If it’s important, it should be in law so it can be worked with. If it’s in the constitution, we can’t touch it, and that doesn’t allow for any adjustments that we might think are important. It’s just locked down until you can vote on it again. So that’s a really bad thing. We can work with the initiated measure (26), but with the amendment we’re just stuck with it,” Mills said.

Mills said now the focus is on how South Dakota restructures its legal framework to support Amendment A. Constitutional amendments, once voted on by the citizens, cannot be vetoed, so now the legislators have to figure out how to readjust laws and enforcement measures to accommodate for the amendment.

Unknowns

Sherriff Stanwick said that right now, officers across the state are waiting to see how legislators address the enforcement concerns with legalizing marijuana. 

“There are unknowns right now. The legislators are going to have to come up with the penalties and so forth. And I think we’re probably, well, not in shock, but I think a lot of us officers are surprised that recreational marijuana passed. We assumed medical would pass; not recreational, however. I think we just have to wait and see what legislation does.”

Stanwick said there’ll have to be a lot of training for officers certified as Drug Recognition Experts, so that the officers are better able to assess a marijuana-related situation and its new intricacies, compared to now, when any amount of marijuana is illegal.

“The drunk driver is easy to detect. You can smell it and test for it. The driver who’s high is a little more difficult because there aren’t that many readily available and accurate testing measures for officers in pulling people over,” Stanwick said.

“The voters have indicated what they want in South Dakota. Federally, it’s still illegal, but we’re just going to have to go by what the voters wanted. There’s just a lot of things that are unknown,” Stanwick said.

Contact Matthew Rhodes at [email protected]

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