Memorandum
City of Lawrence
Legal Services
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TO: |
David L. Corliss, Assistant City Manager & Director of Legal Services
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FROM: |
Scott J. Miller, Staff Attorney
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Date: |
October 20, 2005
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RE: |
Proposed Marijuana Ordinance |
TABLE OF CONTENTS
Caseload Concerns in the Municipal Court and Prosecutor’s Office
On September 6th, 2005 the City Commission directed that an ordinance be drafted illegalizing the possession of marijuana and drug paraphernalia within the City of Lawrence. Attached please find my response to that assignment.
Laws regulating controlled substances in Kansas are codified in K.S.A. 65-4101 et. seq., the Uniform Controlled Substances Act. K.S.A. 65-4162 illegalizes the possession of marijuana. That statute specifies that first time possession of marijuana is a class A nonperson misdemeanor, but possession of marijuana with one or more previous convictions for the same offense enhances the severity level of the crime to a drug severity level 4 felony. The Kansas Supreme Court has been very clear that a city may not prosecute felonies in municipal court, and that it may not pass ordinances on a subject matter less restrictive than analogous Kansas statutes. See City of Junction City v. Cadoret, 263 Kan. 164 (1997). Class A misdemeanors are punishable by a fine not to exceed $2500 or jail time in the amount of one year, or both. Therefore, any ordinance prohibiting the possession of marijuana should include penalties at least as stringent as the Kansas statute in order to best survive attack. Likewise, the proposed ordinance should not be used to prosecute recidivist offenders. Possession of drug paraphernalia is either a felony or class A misdemeanor as well, depending on the facts of a particular
case.
Before embarking upon a discussion of the draft ordinance, it is appropriate to review the ways that a drug prosecution is different than those types of cases that we have traditionally handled in our municipal court. Drug related prosecutions, in my experience, are more complex and time consuming than many other prosecutions in two ways. First, because drug possession cases almost invariably involve the seizure of property, motions are filed on search and seizure issues with more frequency in an attempt to suppress evidence. This means that prosecutors must spend more time researching the law and drafting motion responses compared to a typical municipal court case, and the court spends more time hearing and deciding these cases than is customary. Second, successful prosecution of possession of marijuana cases often requires that the substance seized be tested in a laboratory to establish that it is, in fact, marijuana. Many times the person who tests the evidence, a chemist or forensic toxicologist from a police lab such as the K.B.I. lab, must appear at trial and testify regarding the testing procedures, results, and their qualifications. A city does not incur a direct expense for this testing in most cases, as these programs are funded by a statutory fee that is assessed against anyone convicted of a crime whose case required laboratory services. This fee is set by the legislature at $400, and we would be required by law to collect it.
The attached ordinance is primarily based upon the Kansas statutes referenced above. Although I have suggested a couple of changes or enhancements to the statute to better address some of the concerns that I heard expressed by the Commissioners, I have not included any “marijuana only” procedural rules. As this ordinance is written, it would be enforced like any other ordinance in the City. Where appropriate, notices to appear would be issued for violations of this offense, but the law allows an arrest to be made for a violation of a municipal ordinance in some circumstances and this ordinance is not excepted from those rules.
The ordinance in question illegalizes the possession of marijuana, its extracts, and the synthetic equivalent of its “active ingredient,” tetrahydrocannabinol (THC). It also prohibits possession with intent to use of simulated controlled substances and drug paraphernalia. Finally, it illegalizes the delivery or sale of drug paraphernalia with reason to know that the paraphernalia will be used to ingest marijuana or other drugs regulated by K.S.A. 65-4162. It is designed to replace the existing Article 9 of Chapter 14 of the City Code, an outdated drug paraphernalia ordinance, to better reflect the existing state of the law in Kansas.
Simulated controlled substances are products which identify themselves by using a common name or slang term associated with a controlled substance and that reflect on their label or accompanying promotional material that they simulate the effect of a controlled substance. Drug paraphernalia is generally comprised of things utilized in the growth, packaging, storage or use of controlled substances. The proposed ordinance contains many factors that a court can look to in deciding whether an item is drug paraphernalia or not. The City currently regulates the sale of simulated controlled substances and drug paraphernalia in areas open to minors or near schools, but because the State of Kansas has made it unlawful to possess these items as well as sell them, this portion of the City Code should likely be updated even if the more comprehensive regulations of this ordinance are unacceptable.
The only area in which the proposed ordinance differs slightly from the Kansas statute involves the appropriate penalties for a violation of the ordinance. The ordinance sets maximum penalties of one year in jail and a $2500 fine for its violation, which are identical to the penalties in K.S.A. 65-4162. If the City Commission chooses to, it would have the authority to establish minimum fines or jail time for a violation of the ordinance. Because one of the major concerns when dealing with controlled substances violations is getting the offender necessary drug education or treatment, the ordinance also mandates that, at a minimum, a person convicted of violating the ordinance will be ordered to attend a community-based alcohol and drug safety action program level I class, which is similar to the least level of alcohol and drug related education or treatment that a first time OUI offender could expect to be ordered to attend upon conviction. This requirement is not present in state law. In addition, the judge is given explicit authority to order more stringent evaluations or treatment in appropriate circumstances. Also, the ordinance directs that the judge order an offender to pay the laboratory fees discussed above where the payment of those fees would be required by Kansas law.
Caseload Concerns in the Municipal Court and Prosecutor’s Office
A subject of obvious interest is how many cases the proposed ordinance would add to the municipal court’s caseload. An exact number is difficult to predict, but it is possible to estimate an upper limit based upon the number of past standard offense reports alleging violations of K.S.A. 65-4162, the marijuana possession statute, and K.S.A. 65-4159, the drug paraphernalia and simulated controlled substances statute. The following chart shows the number of police reports alleging violations of these statutes between the years 2000 and 2004.
The actual number of charges filed in the municipal court would be smaller than these amounts for several reasons. First, not every case that generates a police report will ultimately result in someone being charged. Sometimes there will be a lack of admissible evidence sufficient to support charges. Second, not all marijuana possession and drug paraphernalia offenses are misdemeanors, and as discussed above felony offenses may not be charged in municipal court. Third, K.S.A. 65-4162 illegalizes the possession of several substances in addition to marijuana. For example, it also includes the possession of psilocybin mushrooms, L.S.D., and anabolic steroids. Although marijuana possession undoubtedly accounts for the majority of police reports generated under K.S.A. 65-4162, some of these other offenses will account for a reduction in the actual number of cases prosecuted, when compared to the chart above. Finally, marijuana or drug paraphernalia possession is often detected incidental to an arrest for another, often wholly unrelated, charge such as theft. If the other charge is not amenable to municipal court prosecution then the marijuana charge will likely be prosecuted in district court as well because of compulsory joinder considerations or as a means of ensuring judicial economy.
Additionally, one of the questions asked of staff at the previous discussion of this issue was how other cities’ ordinances treat this sort of offense. Some cities still have ordinances on the books that illegalize potentially felonious behavior, such as the sale of drugs or the possession of Schedule I drugs like cocaine or heroin. I would not recommend patterning our ordinance after such an enactment due to the inherent lack of felony jurisdiction in municipal court. Other cities have mandatory minimum fines, jail time, or treatment that is in excess of what is required by state statute. For ease of reference Table 1 at the end of this memo summarizes whether each city surveyed has a marijuana/THC ordinance, and if so the minimum and maximum penalties and required drug and alcohol treatment, if any.
Please let me know if I can further assist you on this project.
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CITY NAME |
MARIJUANA/PARAPHERNALIA ORDINANCE |
MIN./MAX. FINE |
MIN./MAX. JAIL |
TREATMENT |
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Overland Park |
Marijuana – Yes Paraphernalia – No |
$200/$2500 |
30 days*/1 year |
ADSAP evaluation and compliance (min.) or treatment. |
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Olathe |
Both – Yes |
$0/$2500 |
0 days/365 days |
ADSAP evaluation and compliance |
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Topeka |
Both – Yes |
$0/$2500 |
0 days/365 days |
None Specified ** |
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Wichita |
Both – Yes |
$0/$2500 |
0 days/365 days |
None specified. ** |
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Manhattan |
Both – Yes |
$0/$2500 |
0 days/365 days |
None specified ** |
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Salina |
No Ordinances |
N/A |
N/A |
N/A |
* No release on probation or parole until 2 days actually served in jail or on house arrest.
** Treatment requirements may exist as a condition of parole/probation/diversion.