OKLAHOMA CITY — A host of law enforcement agencies urged lawmakers to provide guidance on responding to State Question 788, telling a working group the measure has insufficient protection against the proliferation of a black market and creates legal conflicts for prosecution.
The Oklahoma Department of Public Safety, Oklahoma Bureau of Narcotics and Dangerous Drugs, and the District Attorneys Council, along with deputy chiefs from Oklahoma City and Tulsa, took part in a three-hour legislative working group meeting on Wednesday.
“This is medical marijuana, not recreational,” said District 8 District Attorney Brian Hermanson, who represented the DAC and oversees cases in Kay and Noble counties, of the situation.
Hermanson and the others described reservations they had with the state question, calling for a plan for addressing such areas as marijuana intoxication while driving, home grow, possession outside residences and consumption in the presence of children.
Tulsa Police Deputy Chief Jonathan Brooks told the working group that “There’s so much confusion in every group that you talk to” because of statutory conflicts created by the passage of SQ 788.
The Tulsa County District Attorney’s Office has said that those conflicts mean State Question 780, which decriminalized simple illegal possession of controlled substances, could still legally form the basis for criminal cases that seek jail time even though SQ 788 is also in effect.
Indeed, DPS Commissioner Rusty Rhoades told working group co-chairman Rep. Jon Echols, R-Oklahoma City, “We don’t know which way to turn on that right now.”
Echols has previously advocated for law enforcement entities to respect the expressed will of voters regarding SQ 788. He asked Rhoades whether a trooper today would be more likely to apply SQ 780 or SQ 788 if the trooper found 1.5 ounces or less of marijuana during a contact.
“It would be our recommendation at that point (that) we’d follow 780,” Rhoades replied. “But quite honestly, we don’t know. We don’t know because there is conflict and there’s confusion in that arena.”
SQ 788 indicates possession of that amount or less is punishable by a $400 fine, which doesn’t carry jail time, if a person can state a medical condition but does not have a license.
The Oklahoma Medical Marijuana Authority will not accept license applications until 10 a.m. Aug. 25. Personnel there have 14 days to respond to them.
State Rep. Ben Loring, D-Miami, who is a former district attorney, opined during an earlier dialogue with OBNDD Director John Scully that the working group seems to be “just scratching the surface” of laws that need to be repealed or amended in accordance with the vote.
Although Brooks asserted he had no interest in “negating” the point of the initiative, he maintained that law enforcement has legitimate issues with the new possession thresholds.
“We don’t want at any point someone in their neighborhood or on their streets with 3 ounces of marijuana. This will contribute to the black market,” he said. Scully, during his presentation, stressed the importance of OBNDD stopping the blossoming of a black and gray market and said he supports existing requirements in emergency rules for commercial licensees to register with the agency before beginning operations.
Brooks suggested the placement of home grow operations under their own category of licensure for the sake of safety and tracking, which could help mitigate growth of illegal transactions. Emergency rules for SQ 788 do not have any language regulating homegrown products.
Wade Gourley, a deputy chief for Oklahoma City Police, echoed Brooks’ comments, saying the permissive limits on simple possession currently in SQ 788 run the risk of making product supply greater than demand. Once that happens, Gourley said those products will likely be diverted illegally either to non-patients or across state lines, which makes it important for law enforcement to have access to some form of a tracking system for verification purposes.
A person with a medical marijuana license can have up to 3 ounces of marijuana in plant form, as well as 72 ounces of edibles, 1 ounce of concentrate and six each of mature and seedling plants.
Hermanson, who said he opposed SQ 788, talked to legislators at length about his displeasure with edible marijuana products being legal. He contended repeatedly that edibles present serious safety risks to children and that methods used to extract THC concentrates at home could also be harmful.
The state Board of Health adopted emergency rules Aug. 1 that stipulate products cannot be sold in a way that makes them attractive to minors. Products must also say “Keep out of the reach of children” somewhere on the label and have child-resistant packaging.
“I know of no reason under the sun why any type of edible marijuana should be shaped like gummy bears,” Hermanson said, also including infused brownies in his criticism. “There’s no reason that this medicine, marijuana, should look appetizing to a child.”
Scully, in response to a different question from the working group, said “I’ve used Google” to learn about the dangers posed by the use of butane to extract THC concentrates. He compared the potential damage to that seen by OBNDD agents during their work to eradicate methamphetamine labs.
“If we start having people who really don’t know what they’re doing … that can be volatile and cause explosions,” Scully said.
Rep. Steve Kouplen, D-Beggs, asked Hermanson about his views on edibles made from homegrown marijuana. Hermanson replied that “If they’re growing at home, the edibles they’re making are probably going to be brownies.”
The comment prompted some frustration from pro-medical marijuana advocates present in the room. Hermanson later told Kouplen that “You’ll have to excuse me” because “I’m not exactly aware of all the intricacies” of marijuana products.
He also said SQ 788 should have listed qualifying medical conditions because until lawmakers give guidance, law enforcement will likely have to take citizens’ claims about them at face value.
Rhoades said during his presentation that his agency is “sworn to protect the people of this state from, sometimes, themselves and certainly from others.”
He took issue with the lack of a standard mechanism that determines whether a person is under the influence of THC while operating a vehicle and asked for lawmakers to evaluate whether to create one through something like a saliva test.
Kouplen said he was aware of the challenges troopers face in detecting impairment on-scene but told Rhoades, “The subjective analysis that has to be made really concerns me.”
Hermanson later warned of his belief that DUI cases would double in the wake of SQ 788 and SQ 792, which affected sales of wine and high-point beer.
When Rep. Jacob Rosecrants, D-Norman, asked Hermanson to provide a basis for his claim, the attorney said, “There seems to be a feeling among at least some of us ... in the area of prosecution that we’ll see more people smoking in vehicles and smoking at work or other places.”
Marijuana use in public is prohibited under the current emergency rules, which Gov. Mary Fallin signed Aug. 6.
Following the meeting, Echols said it was his wish for the working group to begin to “hone in on possible emergency needs” to most efficiently implement the will of voters.