Courts, cops gear up for legalized pot

The legalization of recreational marijuana came as a surprise to Pinal County Attorney Kent Volkmer.

Opinion polls showed a tight race and vocal opposition to Proposition 207, but the initiative passed overwhelmingly Nov. 3. A day later, after it became clear it would be the law in Arizona, Volkmer contacted the state Department of Corrections to check how many of its inmates were Pinal County residents confined on marijuana convictions.

Volkmer said he was relieved to learn the number was zero.

“There was not one person in solely for that,” he said.

Then he set about drafting a letter to all the attorneys in his office and contacting the Pinal County Sheriff’s Office, Public Defender’s Office and Superior Court.

While Prop 207 places the duty of establishing rules for regulating marijuana on the shoulders of the Arizona Department of Health Services, the impact on law enforcement and the courts is immediate.

In Pinal County, possession of marijuana and marijuana paraphernalia cases are now being wiped from the record. Tracking that is a little easier because of a policy change four years ago when Volkmer’s office gave more discretion to the sheriff’s deputies on whether to charge marijuana cases as felonies or misdemeanors.

Sheriff Mark Lamb confirmed that.

“There has been a slight, I would say gentle, direction change over the last few years from the County Attorney’s Office,” he said. “We could issue a citation, which is not normal for a felony, but we were treating it like a misdemeanor already.”

Volkmer said the number of felony marijuana cases dropped by more than 90%. He estimates the county sees 700-800 marijuana cases per year. Fewer than 50 are felonies. Now active cases are being dismissed, charges are being dropped, bench warrants are being cleared and conviction records will be expunged.

The new law allows adults to use, possess and grow marijuana, with limitations. It places a 16% tax on marijuana sales, with revenue divided among law enforcement, public safety departments, community college districts, Highway User Revenue Fund and a Justice Reinvestment Fund.

“Prop 207 allows for limited marijuana possession, use and cultivation for adults 21 and older,  and amends current penalties for those under 21,” Pinal County Public Defender Kate Milewski explained. “It bans smoking marijuana in public. It also allows for the expungement of marijuana convictions. As such, our office is working with the Pinal County Attorney’s Office to dismiss all pending marijuana cases in accordance with this law.”

As a voter initiative rather than legislation, its details are much harder to alter.

“We expect there to be unintended consequences,” Volkmer said.

SCALES AT THE SCENE

In November, then-Maricopa police Chief Steve Stahl said the department is seeing only minor changes to protocols being recommended by attorneys.

“COVID-19 has already changed how we handle possession cases where we are already long-forming subjects for county attorney and city attorney prosecutorial review,” Stahl said. “This will continue as Prop 207 will not go into effect until sometime in 2021.”

The long-form citation puts a suspect in the system without jailing them while the investigation determines whether a case involves an illegal amount of marijuana or other arrestable offenses that caused them to be detained by police.

“With this change, there will be some changes as to how we can obtain [probable cause],” Lamb said. “For example, the odor of marijuana is no longer going to be probable cause to search a vehicle or move forward on certain investigations.”

The law allows possession of up to 2.5 ounces. Pinal County Sheriff’s Office is still looking at that determination.

“We’ll have to make sure all our guys know that,” Lamb said. “We might have to provide some scales where they can actually weigh it on scene before bringing somebody back to the station.”

In December, for the first time in history, the U.S. House of Representatives voted to decriminalize marijuana at the federal level. The Marijuana Opportunity Reinvestment and Expungement Act is expected to die in the Senate, but its success in Congress (split mostly along party lines) may harbor an attitude change.

“I think there have been some societal changes toward marijuana over the past couple years, so it was kind of shifting somewhat in that direction,” Lamb said.

Law officers are among the first to absorb that.

“We do respect that the Arizona voters have spoken, and we will work closely with our prosecuting attorneys to ensure citizens’ rights are protected while keeping communities safe,” Stahl said. “There will be some training enhancements coming forward in the near future as the attorneys speak with states who already have navigated the recreational marijuana laws.”

In fact, that is one of the things that worries Lamb. He said he and his officers have talked it over with their colleagues in other states.

“We’ve spent a lot of time with Colorado law enforcement, Denver PD, a lot of sheriffs from Colorado, and we’ve learned some of the things we can expect in our communities,” Lamb said. “They’ve seen an increase in homelessness, they’ve seen an increase in mental health [needs], dramatic increases in these things.”

MOTIONS TO EXPUNGE

As law enforcement is adjusting, so are the courts.

Stephen McCarville, presiding judge of Pinal County Superior Court, said the justice courts would see most of the motions to dismiss because that’s where the cases of smaller amounts of marijuana were filed. The cases involving more than 2.5 ounces will continue in Superior Court if the County Attorney’s Office wishes to prosecute them.

“We do anticipate an increase in motions to expunge, but that will not start until July when that provision goes into effect,” McCarville said.

His regular Friday meetings with the County Attorney’s Office, the public defender, probation office, PCSO and the court clerk’s office have been hitting on issues tied to Prop 207. He said the Arizona Supreme Court is also preparing seminars to further prepare.

“As of this date, numerous cases have been dismissed,” Milewski, the county’s public defender, said. “We will be advising our clients on the process for expungement of their criminal convictions for marijuana. We anticipate inquiries regarding the expungement process and will provide information where to find and file those forms as soon as we are able.”

Milewski said the Public Defender’s Office has been speaking with other public defender’s offices and “court system stakeholders” in Arizona to “coordinate a uniform approach for our clients.”

Volkmer said he is hoping for a “relatively smooth transition” to legalized marijuana but there are still complications. Marijuana charges are frequently only part of several charges against an individual, so attorneys are picking through their cases to see what should be dismissed.

Cannabis, as defined by the state Legislature, is itself a complication. It is the plant that both marijuana and hemp derive from. Volkmer said cannabis is treated as a narcotic like cocaine and has harsher penalties than “straight marijuana,” that is the dried leaves, flowers, seeds and stems from cannabis. Marijuana is high in THC, the cannabinoid in the plant that causes a psychoactive response, or “high.”

Juvenile charges are another complicating factor. Prop 207 does not allow minors under 21 to possess marijuana. How the county is handling past and pending juvenile cases is also part of the discussions between Volkmer’s office and the public defender.

Volkmer said there is expectation of additional definitions in juvenile matters.

“There’s a big difference between a 20-year-old smoking a joint and a 10-year-old smoking a joint,” he said.

MORE DRUG-RELATED DUIs AHEAD?

As officials look ahead to the full enactment of the new law in 2021, the sheriff has concerns based on his memory of medical marijuana being legalized. Primarily, those worries involve driving under the influence.

Before medical marijuana was allowed, he said, about 80% of DUI cases in Pinal County were related to alcohol. Now, according to the sheriff, 60% to 70% of DUIs are drug-related.

“I think it’s important for people to understand that just because marijuana’s legal does not make it OK to drive under the influence of marijuana,” Lamb said. “We already see that where people will say, ‘Well, I have a marijuana card.’ Alcohol’s legal, too, but it’s not legal to drive under the influence of alcohol.”

Lamb is not a fan of the law. Based on his conversations with Colorado officers, he is skeptical it will result in increased revenues for the programs it cites. He said it looks like the negative community impact will outweigh the revenues.

“It affects our streets; it affects probably accidents,” he said. “On a personal level, I’m still waiting to see how this affects my family.”

They are awaiting the clinical definition of impairment to better train officers. While some signs are similar to those induced by alcohol, there are some effects unique to marijuana.

“We’re all just trying to process the law right now, process exactly what it contains, how it’s going to affect our individual agencies, both the County Attorney’s Office and our office, and how we’ll proceed on what we’ll charge and those types of things,” Lamb said. “Really, right now, it’s just understanding the law and trying to put a game plan together moving forward.”

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This story appears in the January issue of InMaricopa magazine.