State Question 788, following the passage in 2016 of State Question 780, took another step toward decriminalizing marijuana use by reducing the criminal penalty for those without proper licensing who can cite a medical condition.
However, because neither resulted in a overhaul of state drug or paraphernalia possession laws, attorneys in Tulsa County have said jail time for marijuana possession remains a possibility until or unless the Legislature acts to clean up existing statutes.
House Majority Floor Leader Jon Echols, R-Oklahoma City, said Friday that continued aggressive prosecution of simple marijuana possession is clearly contrary to the spirit of both measures. Echols is a co-chairman of the bipartisan, bicameral group working on SQ 788 regulations.
“The citizens have now told us twice they don’t want nonviolent drug offenders going to prison,” he told the Tulsa World.
The possession provision of SQ 788 took legal effect Thursday. It mandates a $400 fine for marijuana users who have 1½ ounces or less and who do not have a patient license but state a medical condition to authorities.
Echols said SQ 780 amended existing drug law to create a “simple possession” category for drug crimes, whereas SQ 788 added a new law relating to marijuana use that does not actively amend existing law. Although he agreed it would benefit the Legislature to make statutory changes for consistency purposes, he said that for the meantime, “I think prosecutors would be wise to follow the expressed instruction of voters in 788 until the Legislature goes into session.”
Tulsa police have declined to discuss at length how officers will enforce the new law, only saying possession and distribution remain illegal for now. License applications will be accepted by the Oklahoma Medical Marijuana Authority by Aug. 25.
Erik Grayless, first assistant district attorney for Tulsa County, said Friday that despite the general practice of following the most recently passed law on any given issue, the state could lawfully file a charge citing violations of the laws created by either state question.
SQ 780 indicates simple possession of drugs, including marijuana, is punishable by up to a year in jail and up to a $1,000 fine. Tulsa County has had about 900 fewer felony filings than this time last year and has also seen a slight decrease in misdemeanor case filings.
“When the state question (788) was written, it was written poorly. It was written with enough open-endedness, which has created a certain level of unknowns in the criminal justice system currently,” he said.
He noted that there is also frustration, including from law enforcement, at the “quick turnaround” required by SQ 788, as it did not give enough time for agencies to create comprehensive policies.
He said it’s not clear whether officers will be directed to write a ticket similar to a traffic citation or submit a misdemeanor file — or have discretion to decide which is appropriate. Both options appear, at least for now, to be permissible, Grayless said.
“I would like to see the Legislature amend the statutes to reflect clarity,” he said. When asked about the ongoing work of the health department and lawmakers outside of session, he said he appreciated their efforts but that “They’re at the same level of unknowns that we are. It’s difficult to pass an amended (law) or a clarification if you don’t know what’s going to happen.”
Jay Ramey, a defense attorney in Tulsa who handles drug cases, said SQ 788 as its written doesn’t do enough to protect people who use medical marijuana and has also called for lawmakers to take action. Ramey said the current language sets people up for legal trouble because it doesn’t explicitly state to whom citizens should provide information about their medical condition if they don’t have a license and are caught with marijuana.
“If a police officer catches you with marijuana, are you supposed to tell him?” he asked, adding that the language should specify someone such as a judge or court. “I always tell people to keep their mouth shut when they have a police encounter. Why are we leaving it to a police officer to figure out if someone has a medical condition?”
Ramey also said that in his experience, law enforcement agencies generally have, when submitting a case for prosecution, sought charges for drug possession along with possession of paraphernalia, which carries a sanction of possible jail time.
“What’s going to happen with paraphernalia is a good question,” Grayless said. “It’s still a law on the books. It’s still illegal to possess paraphernalia if it’s used to imbibe drugs. From a practical standpoint, are you not going to be arrested for your drugs and they (police) just give you a ticket but they’re gonna be writing a case for the apparatus that’s used to imbibe the drug? We don’t know yet, but it’s still an arrestable offense.”
Ramey said he has seen cases, particularly in rural counties, in which an arresting officer considered a bag used to hold marijuana an item of paraphernalia. He said that even though SQ 788 does not require jail time, a conviction under the law will expose citizens to other consequences such as limitations on owning a gun or a possible suspension of his or her driver’s license.
The state question indicates there shall be no penalty for possession of devices used to aid in consumption of medical marijuana. However, Ramey said his interpretation of the new law is that the provision will not apply to those who are caught with marijuana without a license, even if they can cite a medical condition at the time.
“I think people use their own risk at this point in time,” Grayless said. “There are so many unknowns, so if (citizens) use it, they have to be prepared for the consequences. To say marijuana is legal requires so many footnotes to properly explain that. So they are doing it at their own peril if they choose to do it at this point.”
Echols, though, maintained Oklahoma, which is No. 1 for incarceration rates in the U.S., simply cannot afford to continue to put people who aren’t in possession of distribution-level quantities in jail or prison.
“While the DAs are correct that they have discretion (to prosecute), the flip side of that is they have discretion (not to file charges),” he said. “What I’m saying is, yes, they do need some guidance from the legislature, but I’d also argue they just got guidance from the people in a vote.”