Pot law 'a mess,' Kennewick city attorney says

By Paula Horton, Tri-City HeraldNovember 18, 2012 

— A majority of Tri-City voters opposed legalizing marijuana, but come Dec. 6 they'll be able to light a joint and have up to an ounce of pot in their pockets.

Exactly how they'll get the drugs, however, is one of many questions state and local officials are trying answer.

Initiative 502, which was passed by 56 percent of statewide voters, makes it legal for adults 21 and older to have an ounce of useable marijuana, 16 ounces of a marijuana infused product in solid form and 72 ounces of a marijuana infused product in liquid form.

The law also regulates and taxes the production and sale of marijuana, but gives the state until Dec. 1, 2013, to get a system in place. Officials with the state Liquor Control Board have said they'll likely need the full year.

Until then, there's no legal basis to grow or sell marijuana, said Lisa Beaton, Kennewick's city attorney.

"That's the tricky part. ... How do you legally obtain it? You don't," she said, adding that it's still a crime under federal law.

"Literally in the next year, it's a mess," she said. "It's a mess for law enforcement. It's a mess for prosecutors."

Beaton's not alone in struggling to figure out what exactly will happen when the new law takes effect.

Benton County Sheriff Steve Keane said it obviously was a topic of discussion last week at the annual Washington Association of Sheriffs and Police Chiefs fall conference in Chelan.

"There's more unanswered questions than anything," he told the Herald.

Keane expects to see an increase in DUI cases, which will require additional training for officers to handle more blood draws instead of breathalyzer tests.

The law sets a blood-test limit -- comparable to the blood-alcohol limit for alcohol-related DUIs -- but The Associated Press reported that a Seattle-area defense attorney already is talking about challenging the new marijuana-DUI standard.

Kennewick defense attorney Jim Egan said he doesn't think marijuana is anywhere near as dangerous as alcohol.

"You surely can get affected by marijuana, but if you smoke marijuana, generally what you do is slow down everything, including your driving, rather than racing around like a maniac," he said.

Driving while smoking marijuana is against the law because the marijuana can't be consumed in public, but it would be difficult to determine if someone is smoking a joint vs. a cigarette as they drive by.

Searches with specially trained drug dogs also will be affected by the new law, because the canines aren't trained to distinguish between different drugs, Keane said.

"If we're looking for cocaine or meth, they can't differentiate between that and marijuana," he said.

Police investigation tactics also will have to change. Officers no longer will be able to use the odor of marijuana as a cause to get a warrant to search for other criminal activity.

"There's no way to smell an amount," Beaton said. "But certainly, if they have means to investigate a DUI, they certainly can continue to pursue that investigation with smell being one of the indicators."

The sheriff also said he can see nuisance complaints going up, for example, if people try to smoke marijuana in public parks. And he questioned whether there will be any changes to the law to protect children, because if an adult smokes in the house with children, the kids can become high from the second-hand smoke.

"I think there's a lot of questions, but as the years go by and cases come up and they're challenged, you'll see some additional laws that come into play," Keane said.

In the meantime, Keane said his deputies will continue to enforce the law as written -- and at least for now that includes arresting people found with pot.

"The law is the law until it changes ... ." he said. "As far as I'm concerned, it's business as usual until law enforcement and attorneys make a decision on how we're going to pursue it."

But, Keane said, he also understands the need to be cautious and find a balance between spending taxpayer money to prosecute cases that will be legal in another month and holding people accountable.

Prosecutors in Spokane, King, Pierce, Clark, Chelan and Okanogan counties already have said they're not going to prosecute adults anymore who are caught with less than an ounce of marijuana, and are dismissing current misdemeanor marijuana possession cases.

In Kennewick, the city attorney said she's discussed the issue with Kennewick Police Chief Ken Hohenberg and they've decided that they will continue to prosecute cases that are currently pending.

"It was illegal conduct at the time they were charged. We don't see any basis to dismiss them," Beaton said. "Typically, these are associated with other issues, other conduct that alerted an officer and they may have been charged for other crimes too."

Both Benton County Prosecutor Andy Miller and Franklin County Prosecutor Shawn Sant are somewhere in between. They say they aren't planning to simply drop all pending pot possession cases, but will be reviewing them on a case-by-case basis.

Criminal history, circumstances at the time of arrest and cooperation with police will all be taken into consideration when evaluating a case, Miller said.

Sant also said he plans to review the 10 pending cases he has to see if they meet certain criteria to continue prosecution.

"I don't think anything changed with the existing law," he said. "I think it kind of sends the wrong message if we're going to dismiss some things based on a future date."

Misdemeanor marijuana cases are possession of less than 40 grams -- having more than that amounts to a felony case, Sant explained. But, even with the new law, anything above one ounce, or 28 grams, is still against the law, he said.

"The concern I have is that we have heard, initially, about a lot of juveniles believing they can go ahead and start puffing marijuana. This does not affect juveniles or anyone under 21," Sant said. "Its clear that it's for individuals 21 and over, where you have the majority, hopefully, able to make a more educated and mature decision for yourself."

Egan said he intends to ask for cases to be dismissed for his clients once the new law takes effect.

He said in a 1934 U.S. Supreme Court case, U.S. vs. Chambers, the court ruled that after the expiration or repeal of a law, no penalty can be enforced or punishment inflicted for violating the law while it was in force.

So, pending cases "should be required to be dismissed because the court will lose jurisdiction," he said.

And, while 61 percent of voters in Franklin County and 57 percent in Benton County opposed I-502, Egan said he's pleased the state has "decided to do away with a second prohibition."

"It makes great sense. If the state handles it correctly, they can probably get rid of the state tax deficit," the defense attorney said. "It will make marijuana a hell of a lot cheaper and will get the Mexican drug cartel out of it. I think it's a great idea all around."

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