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Police grapple with rules of marijuana decriminalization

  • FILE-In this Nov. 21, 2014, file photo, medical marijuana is rolled into a joint in Belfast, Maine. A handful of recreational marijuana legalization drives has the medical pot industry bracing for something it never expected to deal with: competition. (AP Photo/Robert F. Bukaty, file) Robert F. Bukaty



Monitor staff
Thursday, July 20, 2017

Police departments across the state are coming to grips with how to deal with people caught possessing marijuana after New Hampshire became the 22nd state to decriminalize the drug on Tuesday.

Police departments throughout the Granite State have until Sept. 18, less than two months, to prepare for change in drug policy, with many law enforcement agencies expressing uncertainty of the steps they will take to deal with the change.

The law has some ambiguity, leaving questions like how to deal with someone in possession of differing marijuana products, or how to enforce driving under the influence of the drug.

“We’re trying to understand how it’s going to change court procedures and how it’s going to affect records management systems,” said Tuftonboro police Chief Andy Shagoury, the President of the New Hampshire Association of Chiefs of Police, which opposed by the bill.

Other police chiefs said they weren’t ready to talk about the changes to the law, or declined to comment altogether. A spokesman for the New Hampshire Department of Safety did not return phone calls or emails for comment.

A few things about the law are clear: The age of the individual in possession matters, the weight of the marijuana matters, and the form the drug is in matters.

For example, decriminalization doesn’t apply to minors. Anyone under 18 in possession of any amount of marijuana can be charged with delinquency. And only people 21 or older are allowed to possess marijuana-infused products like brownies or other edible goods.

The form of the drug dictates the allowed weight. The decriminalized threshold for marijuana itself is three-quarters of an ounce, or about 21 grams; five grams for hashish; and 300 milligrams of the active chemical in marijuana for edible products. (Generally, 300 milligrams of THC is considered equivalent to an eighth of an ounce of marijuana.)

Anyone found in possession of more than these amounts can be charged with a misdemeanor, instead of a violation and $100 fine.

But the law is silent about other things, like how police should evaluate someone who is caught with a combination of marijuana products.

Concord defense attorney Ted Lothstein said the police’s most important task in dealing with the law will be learning how to handle routine occurrences relating to the drug.

“They’ve got to educate all their officers about what to do in a relatively common scenario where you pull someone over and you smell fresh marijuana,” he said. “What do they do? How do they know how much there is?”

In addition, the law defines edible goods as products “obtained from a state where marijuana sales to adults are legal and regulated under state law, and which is in its original, child-resistant, labeled packaging when it is being stored.” What about a homemade product? How will police test its potency?

“It’s a learning curve for police,” he said. “Infused products mixed with something else is not marijuana under the statute.”

The law specifically says people caught with smaller amounts of marijuana can still be charged with driving impaired.

Shagoury said he expects an increase in impaired driving will occur due to the law, and officers should be trained to recognize signs of driving under the influence of marijuana.

But that’s harder to prove than driving under the influence of alcohol, where blood-alcohol levels can be measured with a breathalizer.

The signing of the House Bill 640 was the fulfillment of one of Gov. Chris Sununu’s major campaign promises. It’s intended the lessen the consequences, especially for young people who get caught with a small amount of marijuana. Those caught in possession now face a series of escalating fines, starting at $100, for each offense, instead of arrest and possible jail time.

“Marijuana policy reforms that reduce criminal penalties for the possession of ¾ of an ounce or less of marijuana have the potential to address social and racial inequities in the New Hampshire criminal justice system,” the law specifically states.

While decriminalization will limit marijuana-related cases, Lothstein said possession can still lead to wider legal issues that require defense.

Student loans can be revoked due to possession fines and those needing security clearances for employment will continue to need defense in marijuana related cases, he said.

Both Lothstein and Shagoury expressed concern that the law might create confusion for New Hampshire residents, namely that marijuana is still illegal.

“Some people might not understand the distinction between decriminalization and legalization,” Shagoury said. “I think some people might think they’re one and the same.”