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Experts weigh in on potential legal challenges of proposed marijuana decriminalization

Experts weigh in on potential legal challenges of proposed marijuana decriminalization

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Although decriminalizing marijuana possession could save people from serving jail time for a minor infraction, some people are worried about how it could affect the way police fight crime.

Danville Commonwealth’s Attorney Michael Newman points out current marijuana laws have sometimes paved the way for police to find evidence of other crimes.

“Decriminalization of marijuana could have an impact on law enforcement ability to have [probable cause] to search, which usually leads to finding other items (cocaine, guns etc…) that lead to other more serious charges,” Newman wrote in an email.

In 2018, more than 46,000 misdemeanor marijuana possession cases flowed through Virginia’s court system, resulting in guilty verdicts and criminal records for 26,000 people, according to an investigation by Capital News Service. Each case translates into an opportunity police found to investigate for large-scale criminal activity.

In Virginia, the subject of marijuana decriminalization took center stage earlier this month when Gov. Ralph Northam unveiled his new criminal justice reform agenda for the 2020 General Assembly. The new initiative focused on such aspects of the criminal justice system as parole reform, permanent elimination of driver’s license suspensions for unpaid fees, court costs and decriminalization of simple marijuana possession.

With decriminalization, possessing small amounts of marijuana would be considered a civil offense with a $50 penalty instead of a criminal misdemeanor.

In this case, a fine would go to anyone arrested with as much as a half-ounce of marijuana, or about 14 grams. An average joint contains a third to a half of a gram of marijuana, according to academic and federal estimates.

Northam has touted this legal change as a way to combat mass incarceration and help clear the records of people who have been previously convicted of simple possession.

Although there still is some hesitation on decriminalization — Del. Les Adams, R-Chatham, for example, recently said he is not sure if he would support it — the governor’s office argues the proposal should have no effect on how police investigate crime.

“The Governor’s decriminalization bill focuses on decriminalizing the possession of small amounts of marijuana for personal use,” Northam spokeswoman Alena Yarmosky wrote in an email. “Other criminal laws involving marijuana (e.g., DUI, possession with intent to distribute, distribution to a minor) remain unchanged.”

Yarmosky also argued decriminalization would not have an adverse effect on probable cause, which is a police officer’s ability to find reason for arrest or to conduct a search.

“Whether or not a person’s possession of marijuana will provide sufficient probable cause related to the commission of a criminal offense will necessarily be determined on a case-by-case basis,” she wrote.

Nora Demleitner, a law professor with Washington and Lee University, explained police still will be able to find the probable cause needed to search vehicles suspected of criminal involvement, regardless of marijuana decriminalization.

“Under the ‘automobile exception’ police may search a vehicle if they think they’ll find evidence of a crime,” she said. “The crime would not be possession of marijuana but rather driving under the influence.”

Another potential legal challenge faced under decriminalization is the fact possession of marijuana still is a federal offense, so local police who also are sworn to enforce federal laws still could make arrests for possession of marijuana. Some legal scholars doubt such federally cross-sworn officers would do such a thing.

“Even though federal law criminalizes marijuana possession, federal law enforcement officials don’t investigate or prosecute mere possession for personal use,” Demleitner wrote. “In the case of a cross-designated police officer, it seems quite disingenuous to use federal law when the state has made a decision to decriminalize marijuana possession.”

The issue of whether a federally cross-sworn officers even could arrest someone for simple marijuana possession in a state where it’s been decriminalized is a tricky legal question.

“We don’t have a U.S. Supreme Court decision on that,” said Ronald Bacigal, a criminal law professor at the University of Richmond. “That’s an interesting question for professors, but in practice I don’t think you’re going to see that coming up.”

Another potential legal challenge posed by decriminalization is how the law will treat the charge of possession with intent to distribute marijuana — it’s mostly a felony charge dependent on the amount of marijuana possessed. Possessing more than one-half ounce could result in as much as 10 years in prison.

Experts agreed the charge likely would remain a felony under the current administration.

“Decriminalizing possession of small amounts of marijuana should have no effect on the felony offense of possessing marijuana with intent to distribute,” wrote Darryl K. Brown, a professor of law at the University of Virginia. “The felony offense always involves amounts of marijuana much larger than the ‘personal use’ maximum that would be decriminalized.”

Bacigal also believes the charge of possession with intent to distribute will continue to be a felony.

“Unless the General Assembly changes that, it’s going to stay as a felony.”

Avent is a reporter with the Danville Register & Bee. Reach him at (434) 797-7983.

Avent is a reporter with the Danville Register & Bee. Reach him at (434) 797-7983.

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