Lit_Match

Safety Group Maps Plan for Tackling New Pot Law
01-02-09|Gloucester Daily Times|By Kyle Cheney

Once admittedly flummoxed at the prospect of implementing a new voter law decriminalizing the possession of an ounce or less of marijuana, state officials are now offering a first glimpse into their strategy.

The strategy, addressing the new marijuana law that went into effect today, includes encouraging cities and towns to pass new penalties for using marijuana in public, and reaffirming public schools' right to expel or suspend students who smoke pot on school grounds.

In a wide-ranging legal opinion issued this week, the state's Executive Office of Public Safety had one over-arching message: things won't change much procedurally.

With the exception of the major thrust of the new law — reducing the penalty for possessing less than an ounce of marijuana from an arrestable offense to a $100 civil fine — police searches, firearms issuances, public school punishments and court proceedings will be largely unchanged.

"We want to be able to assure people, through our legal analysis, that there can be an effective implementation of this new law," state Secretary of Public Safety Kevin Burke said in a phone interview.

Under the guidelines, disseminated by the state Executive Office of Public Safety, officials note the law's expanded definition of possession, which includes "metabolized products of marijuana or THC" — marijuana's active ingredient — "in one's bloodstream."

Public safety officials also recommend that municipalities supplement the $100 fine with additional civil and criminal penalties of their own for the use of marijuana in public.

A sample bylaw offered by Attorney General Martha Coakley would include a $300 civil penalty and the possibility of criminal indictment for the use of marijuana "upon any street, sidewalk, public way, footway, passageway, stairs, bridge, park, playground, beach, recreation area, boat landing, public building, schoolhouse, school grounds, cemetery, parking lot, or any area owned by or under the control of the town."

Voters passed the law in November over the objections of Gov. Deval Patrick, district attorneys and Coakley, who likened it to "the de facto legalization of marijuana."

In its opinion, the Patrick administration's public safety office concludes that law enforcement may still search people suspected of marijuana possession when probable cause exists and may stop and detain suspects, as well.

Officials conclude that it is "unlikely" that police would be able to arrest those in possession of less than an ounce of marijuana — backers of Question 2 sought to eliminate such arrests — but said "an argument can be made" to continue such arrests.

"However, proponents of Question 2 would likely argue that by decriminalizing possession of an ounce or less of marijuana, Question 2 revoked officers' power to arrest for this civil offense," according to the guidelines.

Other guidelines say recipients of civil fines for marijuana possession would not be categorically prohibited from owning firearms, and police officers in possession of an ounce or less on the job would still be subject to collectively bargained agreements regarding substance possession or abuse.

In the guidelines themselves, state public safety officials acknowledge they are testing uncharted legal terrain. Burke agreed, but said his office has "every confidence" that their interpretation is valid.

In a memo to school superintendents sent last week, Education Commissioner Mitchell Chester said Question 2 "does not affect the existing authority of school officials ... to impose discipline" on students who possess marijuana on school grounds.

But Chester acknowledged the uncertainty of state officials as they tread on uncharted legal terrain.

"Since no court has yet addressed the proper interpretation of Question 2, or applied it to the public school context, this advisory reflects best judgment based on the language of Question 2 and existing case law regarding public school discipline issues," he wrote in the memo.

Question 2 requires that offenders under 18 years old participate in a drug abuse awareness program designed by the Department of Youth Services. The EOPS guidelines, however, note that Question 2 authorized no funding for such programs, nor has the Legislature appropriated any.

"DYS and the Executive Office of Health and Human Services are in the process of designing a drug awareness program to comply with Question 2 to the best of their ability," according to the guidelines. "Information concerning these plans will be available in the coming weeks."

The state Executive Office of Public Safety recommendations and the education commissioner's advisory are available at Mass.Gov.

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