By Clayburn Curtis

Uncertainty on cannabis enforcement began in Oklahoma’s legal system before the first dispensary opened its doors. A motorist, long plagued by chronic back pain after multiple surgeries, was pulled over for a broken taillight. When she told the officer she had cannabis on her, she was not worried; she also had her license to possess cannabis. The problem is that no dispensary had yet to open its doors, and the officer charged her for possession of cannabis. These charges were eventually dropped.

State Question 788 states that “[a] person in possession of a state issued medical marijuana license shall be able to … legally possess up to three (3) ounces of marijuana on their person” without reference to any purchasing requirement. Both the officer and the license holder acted in good faith to enforce and follow the law, respectively. But for all the clear language of State Question 788 and the accompanying Unity Bill, gaps remain—leaving much discretion in the hands of police and prosecutors. Oklahoma House Speaker and Unity Bill author Jon Echols (R-Oklahoma City) said the goal of HB 2612 was “not to fix every issue or deal with every issue that will pop up.”

Some have demanded that further clarity from the legislature is needed. And in the wake of changing law, there are numerous cannabis-related issues that will require the discretion of law enforcement and prosecutors.

Until the legislature clarifies gaps left between existing state law and SQ788/HB2612, some have pushed for law enforcement and the state to follow the will of the people and err toward minimizing or avoiding charges altogether. Echols has acknowledged that district attorneys have discretion to prosecute or not file charges while they wait for legislative guidance, but that “they just got guidance from the people in a vote.”

Public perception and legal ramifications for cannabis possession and use have changed dramatically in recent years. State Question 788 asked voters to decriminalize cannabis not only for licensed users, but also made possession of less than 1.5 ounces subject to a misdemeanor and a $400 fine. Under pre-788 law, however, any amount of cannabis could carry a felony conviction, a maximum sentence of five years in jail and a fine of up to $20,000. The question today is: what does a district attorney do when a defendant is arrested with less than 1.5 ounces of cannabis (and no valid medical cannabis license) along with indications of possible distribution? This issue is remedied. 63 O.S. 420(B) provides: Possession of up to one and one-half (1.5) ounces (42.45 grams) of marijuana by persons who can state a medical condition, but not in possession of a state-issued medical marijuana license, shall constitute a misdemeanor offense punishable by a fine not to exceed Four Hundred Dollars ($400.00) and shall not be subject to imprisonment for the offense. Any law enforcement officer who comes in contact with a person in violation of this subsection and who is satisfied as to the identity of the person, as well as any other pertinent information the law enforcement officer deems necessary, shall issue to the person a written citation containing a notice to answer the charge against the person in the appropriate court. Upon receiving the written promise of the alleged violator to answer as specified in the citation, the law enforcement officer shall release the person upon personal recognizance unless there has been a violation of another provision of law.

Importantly, indication of distribution may need to be reconsidered in relation to cannabis and the changing landscape. First, the science behind cannabis subspecies is becoming much clearer. For instance, per the National Institute on Drug Abuse, THC can increase appetite and reduce nausea, while it may also decrease pain, inflammation and muscle control problems. Another cannabinoid, CBD, found in higher percentages in certain strains, may be useful in “controlling epileptic seizures, and possibility even treating mental illness and addiction.” Additionally, strains may be hybrids of subspecies with different percentages of THC and CBD, and each strain has similarly unique properties. The reality of this issue is that there are understandable and responsible reasons a person might have different strains separated in separate bags, yet could be charged with a felony, even though they fall directly in line with the new penalties mandated by State Question 788.

Historically, the element of intent involves a question of fact – in many instances the sheer quantity of the narcotic substance, presence of sale paraphernalia, individual packaging sufficient circumstantial evidence to allow presentation of the case to the jury as intent to distribute. King v. State, 1977 OK CR 136, Massengale v. State, 1976, OK CR 265, Davis v. State 1973 OK CR 416, Reynolds v. State 1973 OK CR 284 Possession of Marijuana with Intent to Distribute and how it has been prosecuted should change in the face of modern medical marijuana laws. As stated above it may be as simple as to argue 788 is more specifically on point than the case law that proceeded it and gave guidance to when the State of Oklahoma may pursue felony intent to distribute charges. If the amount is below the ounce and a half threshold and a person can state a valid medical reason, 788 allows the State to punish with only up to a $400 fine (misdemeanor) regardless of packaging or the presence of paraphernalia. Even if the amount is above an ounce and a half, it seems that there are now medical explanations for why packaging or scales should be disregarded as evidence of intent to distribute. At the very least the weight (pun indicator) to be given to that evidence seems to have shifted to considerable to very little and there are now many experts who can testify to that effect to the benefit of our clients.

788 seems to do more than just allow legal medical users to possess marijuana. It also allows a change in the way we perceive people who use marijuana. As society’s viewpoints on marijuana user’s change, so to should the way that prosecutors approach users or even sellers of marijuana. The district attorneys are our elected officials and as such they should further our will. The reality is that these prosecutors have their own vested interests in seeing that business continues as usual. They have financial interests in civil forfeiture as well as the fee’s associated with both prosecution and probation. There are many other simple questions that need to be asked. Who should pay the costs of our criminal justice system. Should the burden fall largely on the defendants themselves or should society at large be responsible. Does prosecuting marijuana users or even sellers further any important society goals? If so, do those goals outweigh the cost to the general public? How do these prosecutions affect the individuals they pursue? Do we care?

When 788 was passed and even now after the Unity bill, they’ve created two different areas of law that govern cannabis and related offenses. In neither case did they purport to amend or repeal any of the statutory law for offenses that previously existed.

SQ 788 is at odds with Oklahoma law forbidding driving under the influence of an intoxicating substance (DUI). When HB 1441 amended these DUI statutes, liability was expanded to cover any person who has in her body any amount of a Schedule I chemical or controlled substance or its metabolite. Marijuana is still categorized Schedule 1 (both federally and in Oklahoma), and its metabolites remain detectable in a user’s system long after its intoxicating effect. This means an illogical result; a sober driver could be criminally culpable for DUI. The change here by the legislature that is of note for criminal defense attorneys is relatively simple, although often overlooked, is the fact that while Marijuana remains a schedule one drug in Oklahoma, THC, or Tetrahydrocannabinol, has been changed to a Schedule 3 drug. This is sensible sense we are now a medical cannabis State and the identifiers for Schedule 1 drug mention lack of medical uses as a factor in the scheduling. This thoughtful change does not account for why Marijuana is still listed as a Schedule 1, and, critics have argued these metabolite-specific drugged-driving laws run afoul of the Constitution due to over breadth, vagueness, and other legal theories. Similar legal challenges outside of Oklahoma have been largely unsuccessful, however. Regardless of this inexplicable inconsistency, the State does not have a test in place to quantify the use of Marijuana outside of THC and its metabolites, and due to the change of scheduling of THC, it takes us out of the per se analysis that the State tends to cling to in their prosecution of DUI Drugs-marijuana. In other words, they must prove that not only is THC present, but that a driver is under the influence of it while operating a motor vehicle, and that doing so may or did render said person from safely driving or operating a motor vehicle. Interestingly enough it should also be noted that most drug tests administered by the State of Oklahoma do not test for THC itself, but rather THC-COOH. As such these tests do very little other than identify use at some point in the past 90 days. Further, the federal government amended the Controlled Dangerous Substance Act last year, and in doing so explicitly excluded hemp-based THC from Schedule 1. Most tests performed are unable to distinguish between THC from hemp versus THC from marijuana.

The gaps and inconsistencies between criminal statutes and new cannabis law create understandable confusion for patients and lawyers alike. The obvious solution to changing law is, as always, legislative action. The fact that cannabis remains a Schedule I drug is somewhat baffling—in a class of drugs defined by statute as “high potential for abuse” and “No accepted medical use in the United States . . . “. The embarrassment of classifying cannabis as without accepted medical use in a state that has legalized medical cannabis falls squarely on the legislature. Until something changes, practitioners should argue for lenity in cases where these gaps create obvious confusion for clients. The doctrine of lenity asks the court to presume that when conflicting criminal laws create confusion, the resolution should favor the defendant and be construed strictly against the state as long as that result is not contrary to legislative intent. Further, arguments as to vagueness rely on the due process requirement that citizens need not guess as to the application of unclear laws.

Previously published in the Fall 2019 Law Journal for OCDLA.