Confusion About Prosecuting Possession Of Marijuana Is Costing People Their Lives

possession of marijuana, marijuana charge, marijuana lawyer

Recently, Nebraska law enforcement and prosecutors had their chance to testify to lawmakers on the influx of Colorado’s marijuana and how the charge of possession of marijuana needs to change.

The only common ground they could reach is that the impact was significant and expected to increase. Three-fourths of the county officials surveyed by the Nebraska State Legislature say that there have been big problems since Colorado has legalized marijuana, and the consensus between law enforcement is that there has been no benefit to the 25 counties closest to the Colorado border.

After the survey was completed, it was handed over to state senators for review. Now, they will consider whether to provide additional funding to law enforcement. Senator Al Davis of Hyannis, who sits on the Legislature’s Committee, had his pessimistic views on the situation: “This is sort of the wild, wild west in many respects,” he said. After the hearing, many members of the committee are now considering to change the state’s law to adjust for penalties related to possession of marijuana offenses and provide additional state support to police agencies and the county courts.

As Nebraska law stands now, a possession or marijuana charge of less than an ounce of pot is punishable with a citation and a $300 fine—which is equivalent to a speeding ticket. However, if an individual is busted with between an ounce and a pound of marijuana, the possession of marijuana charge becomes a misdemeanor with a $500 fine and jail time. Anything over a pound is a felony, with lengthy prison sentences and big fines (and even more so for selling it).

There is also the problem of measurement. In the past, most of the pot transferred as a dried plant. Now, edible products produced in Colorado mix varying quantities of marijuana extracts, making measurement difficult to determine. Nebraska state law has no means of clarifying how to respond to law enforcement and the courts. As a result, certain counties, such as Deuel and Cheyanne, charge small quantities involving edibles as felonies. Acting Deuel county attorney, Jonathan Stellar, explains: “Let’s say you have a marijuana brownie, we would prosecute you for the possession of hash which is a class 4 felony.” Hashish oil is dealt with separately in Nebraska with more severe penalties. Police are authorized by Nebraska statute to base charges on the weight at the time the officers weighs it at the time of arrest … not saying anything about mixture or separating it.”

The philosophy is different is places like Keith County, as prosecutor Randy Fair explains: “We don’t arrest people on that. The difficulty with that is, for us, we are taking a lot of court time on something the judge can’t do anything other than give that person a $300 fine for the first time.” Fair believes that harsher punishments would clog up the court system, increase the cost to local law enforcement, and have little effect on the rate of possession arrests in the future. But he does agree that the majority of pot is coming from across state lines, especially Colorado.  “… I don’t think it takes a rocket scientist to figure it out,” he said.

Sarah Carstensen, the deputy county attorney of Hall County, testified to a different tune, saying she had prosecuted only a small number of pot tourists from Colorado. “To me it depends on what the rest of the facts are,” Carstensen said. She prefers to focus on what she believes the real problem is: the current Nebraska law regarding edibles. “Let’s say you have somebody who has five edibles and that’s it. If police had no other evidence the person was doing anything other than getting a snack for themselves, I don’t think I would pursue that as a distribution case even though that candy would be over a pound,” she said. “The weight alone is meaningless without that mixture language telling us how much of that actually is marijuana.”

Prosecutor Randy Fair talked further about the complicated prosecutions of marijuana edible cases, saying “If you have a large number of edibles (to) be prosecuted as a distribution case, I will tell you there is no way we can weigh that. I don’t know how you would extract the weight of the actual marijuana with regard to the weight of the edibles.” This is because the “buzz-inducing” THC levels are always different, no matter what package they are distributed in say.

With no reliable testing to know for sure, the arrests and determination of the charge will continue to fall on local law enforcement. Lab testing, after all, would severely impact local government budgets.

“If you are going to do that, you need to increase the amount of money you give to me to prosecute these people because it’s going to be significant,” Fair said. The argument about how to handle the problem rages on, as other law enforcement officials and drug crime attorneys feel returning to harsher penalties for marijuana possession is the best response.