INNOCENT CAN GET CAUGHT BY DRUG TAX LAW

FRANKFORT, Ky. -- This isn't the same kind of taxation without
representation debate that prompted some Revolutionary War era patriots to
board the British vessels at Boston and toss crates of tea overboard.

It isn't the same kind of tea, either, for that matter.

This is a debate over taxing drugs -- the illicit kind.

In 1994, the General Assembly passed the "Marijuana & Controlled Substances
Tax Act." As presented by its sponsors at the time, the idea was to get at
the heart of the drug trade by making it a financial burden as well as a
risk of penitentiary time.

To that end, the legislature imposed a tax of $1,000 on each marijuana
plant; $3.50 for each gram of marijuana -- colloquially known as tea in
some circles -- not attached to the plant; $200 per gram of controlled
substances and $2,000 on each 50 doses of controlled substances not sold by
weight.

The tax is due whenever there is possession of a drug and is technically
not related to any criminal charges. The statute allows an individual to
obtain a tax stamp without having to reveal anything about their identity.

Even so, failure to have the yellow and black tax stamp affixed to the
drugs can bring a separate Class C felony.

Since its creation, the tax has brought in a remarkable $394,270.08,
according to the Kentucky Revenue Cabinet. There doesn't seem to be any
consistency in collections, though. In 1996, the total was $201,688; in
1998, $4,135.

It is paid largely in cases where the Cabinet is told by law enforcement of
drug busts. But there are other instances as well.

"We get letters saying, 'I'll pay this. Just please don't tell my mother,"
said Revenue spokesman Alex Rose. "We get a few stamp collectors. And we
get a few people who want to make the drug tax their cause."

State Rep. Robin Webb, D-Grayson, doesn't want to make the drug tax a
cause, but she does want to protect some potentially innocent parties.

Webb has legislation pending that would levy the tax only in cases where
there are convictions for drug offenses. As it is, she said, an innocent
landowner whose property might contain a few wild hemp plants could find
himself hauled before the Revenue Cabinet for a drug tax hearing. In those
cases, Webb said the Cabinet usually requires the posting of a bond equal
to the potential tax.

Webb said there are few due process safeguards. "Any law enforcement
officer can call somebody into the Revenue Cabinet and start this process,"
Webb said. "If John Q. Public landowner is not charged with a crime, he is
still assessed and has to get a hearing in the matter."

Webb said her family owns farmland in rural Kentucky. "Some of our
neighbors have been in the marijuana business," she said. If a seed or two
wanders across the fence, "It's just frightening to me."

With the due process argument, though, comes another legal complication.

"If they have to be convicted first, then you have double jeopardy
problems," Rose said.

The Kentucky Supreme Court and the U.S. Supreme Court have both ruled that
the statute as it stands now does not seek to penalize people twice for the
same offense -- known as double jeopardy.

A 1994 federal court ruling in a Montana case said drug offenders could not
be forced to pay a state tax in addition to criminal penalties.

Unlike the Montana drug tax, Kentucky's highest court said, the Kentucky
levy is more tax than punishment and is due regardless of whether a person
has been arrested on criminal charges.

But there have also been some consequences that have prompted legislators
to reconsider the whole matter. Charles Thomas Jr., a 27-year-old Breathitt
County man, got a $1 million bill two years ago from the Cabinet after
Kentucky State Police identified him as being involved with the seizure of
517 marijuana plants on property near where he lived. Thomas said the
marijuana was not his and he had nothing to do with it and has never been
convicted of a crime.

Nevertheless, the Cabinet has tried to seize his bank accounts and place
liens on his property. The cabinet has more recently relented and allowed
him to protest the tax without posting a bond.

The House passed the bill last week by a vote of 93-1, with the vote of
Rep. Charles Geveden, D-Wickliffe, one of the original sponsors of the tax
six years ago.

Geveden said he too was concerned about the kind of implications that
struck Thomas.