By Andrew Harris – Aug 22, 2014 Bloomberg.com
America is two nations when it comes to marijuana: in one it’s legal, in the other it’s not. The result is that people like B.J. Patel are going to jail.
The 34-year-old Arizona man may face a decade in prison and deportation following an arrest in 2012. On a trip in a rented U-Haul to move his uncle from California to Ohio, he brought along some marijuana, which is legal for medicinal use in his home state.
Headed eastbound on I-44 through Oklahoma, Patel was stopped for failing to signal by Rogers County Deputy Quint Tucker, just outside Tulsa. He was about to get off with a warning when Tucker spotted a medical marijuana card in his open wallet.
“‘I see you have this card. Where’s the marijuana?’” Patel recalled Tucker asking him. “I very politely and truthfully told him, ‘I’ll show you where it is.’”
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That’s where things started to go bad for Patel. He now faces trial next month on a felony charge.
Possessing pot for recreational use is legal in Washington and Colorado, and allowed for medicinal purposes in 23 states. The other half of the country, which includes Oklahoma, largely prohibits any amount for any purpose.
While challenges may land the issue before the U.S. Supreme Court, what exists now is a legal checkerboard where unwitting motorists can change from law-abiding citizens to criminals as fast as they pass a state welcome sign. The difference is especially clear in states like Idaho. Surrounded on three sides by pot-friendly Washington, Oregon, Nevada and Montana, Idaho State Police seized three times as much marijuana this year as in all of 2011.
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“The manner in which a person acquires the drug is not relevant,” Teresa Baker, an Idaho police spokeswoman, said. “This is important to know for those who may purchase it legally elsewhere, believing that it will be overlooked.”
James Siebe, a lawyer in Coeur d’Alene, put it another way:
“Come on vacation, leave on probation.”
Fourteen percent of Americans smoke pot, said Keith Stroup, legal counsel for NORML, the National Organization for the Reform of Marijuana Laws, which he founded in 1970. Marijuana is the third-most popular U.S. recreational drug, trailing only alcohol and tobacco, according to his group.
A Gallup poll conducted last year found 58 percent of Americans think cannabis should be legal, the first time a clear majority had expressed that sentiment. Legalization was supported by 12 percent in 1969.
A handful of states, including Utah, Florida and Alabama, have legalized use of a cannabidiol, a marijuana extract, for treatment of seizures. Neither NORML nor the Washington-based Marijuana Policy Project, include those laws in their count of states where pot has been legalized for medicinal use, contending it’s useful only in extremely limited circumstances and difficult to obtain.
U.S. Attorney General Eric Holder said last August that federal prosecutors should pull back from pursuing low-level crimes, leaving that job to the states. The Justice Department said that while pot possession remains a federal crime, the government will defer to state and local authorities as long as legalization proceeds with a “strong and effective” regulatory system.
Stroup called that policy shift “an enormous gift” that gives his allies two years to prove pot can be legalized without mayhem.
“We’re winning this issue because we have won the majority of non-smokers,” said Stroup, 70, who said he started smoking marijuana in law school 48 years ago. The legalization movement must proceed in a responsible manner, he said, “Otherwise, I can assure you, the political climate can change.”
Amid the increasing tolerance for marijuana use in some states, the seeds of legal conflict, and unequal treatment, are being sown by region across the nation.
On the Eastern seaboard, Florida voters will be asked in November to decide whether their state should legalize it for medicinal use. If yes, they would join New York, New Jersey, Delaware, Maryland and the District of Columbia. But between the Sunshine State and that group is a no-pot land, with possession deemed illegal in Georgia and Virginia and just CBD legal in the Carolinas and Alabama.
Among the 25 states where marijuana is legal in some fashion, Washington and Colorado have made small quantities allowable for personal consumption. Twenty-three of those states, including New York last month, approved its use for treatment of chronic health conditions. Fifteen states, including some of those that allow medical marijuana, have reduced the possession of small amounts to a ticketable offense, subject to a fine. Alaska and Oregon voters will consider legalization in November.
In Oklahoma, where B.J. Patel ran into trouble, petitions have been filed seeking a referendum this year on the medicinal use of marijuana. A second initiative seeking broader legalization has also been proposed there.
Neither measure will help Patel, who is set for trial Sept. 15 in state court in Claremore.
Patel, who was listed when he was stopped in April 2012 as 5 feet 7 inches tall and weighing only 110 pounds, said cannabis was recommended by an Arizona doctor to help combat appetite and weight-loss stemming from hernia surgery.
Because he was prosecuted for marijuana possession in Arizona in 2004 and 2010, his Oklahoma charge was automatically raised to a felony. Both Arizona cases resulted in probation.
“I was just dumbfounded,” Patel said. “I had already done the time for the crime. Now they want to punish me again.”
Patel, a U.K. citizen who said he’s lived legally in the U.S. for 26 years, said he helps his mother run an assisted living facility and pays his taxes. He said he doesn’t understand why Oklahoma considers him a criminal for the misdemeanor amount of pot he had, described in the police report as several “rolled cigarettes” and two bags of the drug.
Possession of any amount of pot is punishable by as long as one year in prison for first-time offenders under Oklahoma law. For those caught more than once, sentences run from two to 10 years.
Next door in Colorado, possession of an ounce (28 grams) or less isn’t a crime as long as you’re 21 years old, and having two ounces is only a petty offense subject to a $100 fine. To the west, New Mexico allows medicinal use of the drug. Unlicensed possession of an ounce of marijuana can bring 15 days in jail and a $100 fine.
Like Oklahoma, Idaho also has more tolerant neighbors, which provides a steady stream of pot-laden travelers crossing into its jurisdiction.
Washington State, which legalized medicinal use of the drug in 1998, made marijuana legal for retail sale last month. Possession of an ounce or less for private consumption is allowed, while smoking it in public is punishable by a $100 fine. If caught with between one and 1.4 ounces, the result could be 90 days in jail. Medicinal users, meanwhile, can have as much as 24 ounces.
Things are different in Idaho. There, possession of as much as three ounces is a misdemeanor carrying punishment of as long as a year in jail and a $1,000 fine. From three ounces, it’s a felony, with penalties of as long as five years in prison and a $10,000 fine.
Nicolas Vieth, a criminal defense attorney in Coeur d’Alene, said Idaho has stretched a net across Interstate 90 to snare drivers from out-of-state.
Using license-plate recognition software, Idaho police regularly zero in on cars along the 74-mile east-west route, said Teresa Baker, the police spokeswoman. Plate readers are used for law-enforcement purposes only, she said.
“We have found the use of these readers to be helpful in locating and apprehending suspects in all types of crimes including vehicle thefts, drugs, murders,” Baker said.
Idaho seized 131.2 pounds of pot in 2011, 645 pounds in 2012 and 721.5 pounds in 2013, Baker said. For the first six months of this year, more than 377 pounds had been seized, a 6 percent increase over the same period last year.
Idaho drug and paraphernalia possession arrests climbed from 14,671 in 2011 to more than 16,600 last year.
Drivers of vehicles with out-of-state plates, stopped for minor traffic violations, are often immediately asked about contraband, and not about their infraction, Siebe, the Idaho lawyer, claimed.
“Interdiction is more important in their mind than their statutorily defined duty,” he said.
Among those travelers stopped last year was Joshua Mularski of Washington State. He was pulled over in May 2013 because his vehicle registration lapsed two weeks earlier, according to a Post Falls, Idaho, police report.
“I noticed he was visibly shaking and nervous,” wrote Post Falls officer Christopher Thompson. The interior of Mularski’s silver 1996 Oldsmobile was littered with spent energy drink cans, clothing and garbage.
“I also could smell the strong, pungent odor of marijuana emanating from inside the vehicle,” Thompson stated.
After being ordered out of his car and handcuffed, Mularski, 36, told Thompson he had a Washington-issued medical marijuana card and a bag full of pot in his pants pocket. A search of the car revealed four fishing tackle boxes, each with what appeared to be marijuana residue, plus a small scale calibrated in grams, according to the report.
Waiving his constitutional right to remain silent, Mularski told Thompson he was a marijuana grower who sold it to other licensed users, and that he had no plans to sell pot at the Post Falls bar that was his destination.
Mularski “stated bringing the marijuana into Idaho was a mistake,” Thompson said.
Cited for possession of a controlled substance and the paraphernalia, each crime a misdemeanor punishable by as long as a year in prison and a $1,000 fine, Mularski later agreed to forfeit a $500 bond and the case was dropped.
A marijuana conviction in Kootenai County, which includes Post Falls and Coeur d’Alene, typically means two to 10 days in jail and probation, said Siebe, Mularski’s lawyer.
Mularski’s dismissal was a “great” outcome, he said.
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