NEW POT LAW POSES QUESTIONS ON ENFORCEMENT

Island police officers and courts are proceeding slowly this week to
enforce a new law that decriminalizes small amounts of marijuana. In
the view of some local law enforcement agencies, the new law creates
inconsistencies in substance abuse penalties, adds unnecessary
paperwork, and weakens their efforts to keep drugs out of Vineyard communities.

While there are several unanswered questions about implementation of
the controversial measure, most law enforcement groups on Martha's
Vineyard believe that little will change in the way they deal with
offenders, because they seldom arrested offenders solely on a charge
of possessing a small amount of marijuana before the new law was enacted.

The new law was approved by 65 percent of voters as Question 2, a
referendum question on last November's ballot. It went into effect on
January 2. Simply, it means possession of an ounce or less of
marijuana or hashish is no longer a criminal offense, but a civil
offense, subject to a $100 fine. An offense is not entered into any
criminal record. It will not show up in future background checks for
employment, or applications for permits and licenses.

Cape and Islands district attorney Michael O'Keefe was an outspoken
opponent of the referendum question during the fall campaign. In a
phone conversation with The Times on Monday, he called the new law
"de facto legalization" of marijuana.

"As people really begin to look at this," he said, "it's going to
sink in that this is a foolish law. Ballot questions are a silly way
to make policy."

Massachusetts is the 13th state to enact some form of
decriminalization of small amounts of marijuana. It is the first
state to do so through a public ballot initiative.

"It's a civil matter now, over which we have no jurisdiction," said Mr. Keefe.

West Tisbury Police chief Beth Toomey opposed the referendum
question, and she is taking a cautious approach now that it is law.
"I'm not going to over react or under react," she said. "We'll
proceed conservatively and take it slowly. I want to be fair to the
people, fair to the police officers, and fair to the law. I want to
do what's right."

Edgartown police chief Paul Condlin said he would adopt state
guidelines for issuing citations. He does not anticipate significant
problems in enforcement, but minces no words about the changes in the law.

"It's bad law," said chief Condlin. "I understand the intentions, but
whoever formatted the law didn't realize the ramifications."

Bill Downing is president of the Massachusetts chapter of the
National Organization for Reform of Marijuana Laws (NORML), based in
Georgetown. He was active in supporting the Massachusetts referendum
question during the fall campaign.

"The resistance is the blather from sore losers," said Mr. Downing in
a phone conversation on Tuesday. "People are sore because they lost.
The way they go about enforcing it is through the same citation
method they've used for years. Since it's being applied to marijuana
possessors, they don't like it."

Theory and Practice

Oak Bluffs police lieutenant Tim Williamson explained how things have
changed, from a police officer's point of view, by citing two
scenarios. In the first scenario, two 16-year-olds are caught in
possession of a six-pack of beer on a public beach. In the second
scenario, two 16-year-olds are caught in possession of an ounce of
marijuana on a public beach.

Police have a wide range of discretion in how they handle both
scenarios, but according to Lt. Williamson, police now have fewer
tools to handle the kids with marijuana.

The teenagers with the beer are subject to arrest and prosecution of
a criminal offense. Court disposition of the case depends on a
variety of factors, including criminal records. In Edgartown District
Court, if it were the first offense for the two teenagers, their case
would most likely be continued with pre-trial probation, continued
without a finding, or dismissed upon completion of community service.

According to district court clerk-magistrate Liza Williamson, under
state laws prior to January 2, the two teenagers with the marijuana
could be arrested, or summonsed to court. If it was their first
offense, the state law called for the criminal charge to be continued
without a finding for six months. They could not be fined, but they
could be assessed court costs. A record of the disposition would be
on file for the rest of their lives.

Under the new law, the two teenagers with marijuana cannot be
arrested. They can be issued a civil citation, and fined $100. Since
they are under 18, they must attend a drug awareness program, and
complete 10 hours of community service. They can pay the fine,
complete the programs, and the case will be closed. If they dispute
the charges, they can request a hearing before the clerk-magistrate.
If the clerk-magistrate decides that a preponderance of evidence
shows they violated the civil statute, they will be fined $100 and,
if under 18, ordered to a complete a drug awareness program and
community service. No permanent record of the citation is entered
into the court records. The citation will not be available to any
future employer evaluating the teenagers for a job. It will not be
cause for denying student financial aid, public housing, public
financial assistance, including unemployment benefits, the right to
operate a motor vehicle, a firearms identification card, or the
opportunity to become a foster or adoptive parent.

Procedure and Paperwork

The new law presents some procedural barriers for police, including
the issue of identification. Under civil laws, a person is not
required to identify himself or herself to police. If that happens,
police are faced with the prospect of a time-consuming investigation
to determine identification. In the past, police could simply use
their discretion to make an arrest, and hold the suspect until they
provided identification.

"I think they've taken a tool away from police officers out on the
street," said Lt. Williamson.

Proponents of the new law say those objections are unwarranted. "When
they were giving citations out for jaywalking and they were unable to
demand I.D., it didn't seem to bother them much," said Mr. Downing,
president of the state NORML chapter. "Question 2 didn't change the
citation process."

Police officers still have discretion on whether or not to issue a
citation. In the scenario of a person who refuses to identify
himself, police officials told The Times they would likely seize the
marijuana and send the person on their way, unless there were unusual
circumstances that warranted a citation. In the officials' view,
issuing a citation ties up the police and the courts, and takes time
away from enforcement of more serious crimes.

Ironically, seizing the marijuana and releasing the offender is
exactly how police would likely handle the case before the new law,
if the person did identify himself or herself. Arrests for possession
of marijuana alone were rare before the new law, according to police
and court personnel.

The new law also requires substantial coordination between police,
the courts, and local town clerks. All fines under the new marijuana
law are paid to town clerks, and deposited into the town's general
fund. Copies of citations must be sent to the town clerk in the town
where the citation was issued, and in the case of person 18 or under,
sent to the parents' last known address. If the fines are not paid
within 21 days, the citing officer must determine whether to file a
criminal complaint. If a person under 18 is ordered to go through a
drug awareness program, they have one year to file a certificate
proving the program was completed. If no certificate is filed, the
courts can increase the penalty to $1,000, for which the parents and
the underage offender are jointly liable.

"Those cases will stay in limbo for a year, and we'll have to
coordinate," said Ms. Williams, the district court clerk-magistrate.
"Without question it's more work for the courts, more work for the
police, and more work for the town clerks. Even if it's minimal, it
will be taking attention away from other important things."

Other Issues

A point of contention cited by law enforcement is the one-ounce
threshold that makes possession a civil offense. "An ounce of
marijuana, is essentially up to 50 joints," said Lt. Williamson.
"That's not a small amount of marijuana. The people that voted for
this may remember the marijuana of the 1970s and 80s. Marijuana is
much more potent these days."

Some point out that it is a criminal offense to possess an open
container of alcohol outside of a licensed bar or restaurant. But it
is now only a civil offense to smoke marijuana in public. The state
attorney general is circulating a model bylaw that would make using
marijuana in public an arrestable offense, with a fine of $300. In
Oak Bluffs, police chief Erik Blake plans to sponsor such a bylaw
before voters at the annual town meeting this spring. Neither Chief
Toomey in West Tisbury nor Chief Condlin in Edgartown foresee an
effort to change local bylaws.

Those who campaigned for the decriminalization of marijuana promise
to vigorously oppose efforts to create new restrictions at the local level.

"If towns try to recriminalize marijuana that would be an entirely
different matter," said Mr. Downing. "The idea that towns, which are
run by voters, are going to have a vastly different opinion than the
voters of the state, is unrealistic. I know the police chiefs and
district attorneys would like to see it recriminalized, but they
don't run the towns, the people run the towns, and people have voted.'

Critics also say decriminalization of marijuana encourages other
crimes. "Marijuana is not going to just appear in some kid's pocket,"
said Lt. Williamson. "He had to buy it somewhere, somebody had to grow it."

Schools Daze

Steve Nixon, principal at the Martha's Vineyard Regional High School,
emphasized that the new law will not change the school's approach to
insuring a drug-free environment.

"The law applies to what happens outside," said Mr. Nixon. "There
are always going to be differences between laws and policies.
Whenever you're on school grounds, school policy takes precedent."

The school's policy is outlined in the 2008-2009 student handbook. It
is based on the state law that says that a student who is found in
possession of a controlled substance on school premises or at a
school-sponsored or school-related event, including athletic games,
can be expelled.

School policy allows for punishment short of expulsion. The students
can be suspended from school and suspended from all school activities
outside of class for up to one year, and required to perform up to 80
hours of community service.

The school is considering action to make sure students understand the
new law, through student advisories, where a small group of students
meet with an adult to discuss issues affecting the school.

"We may incorporate it," said Mr. Nixon. "That's something we have a
group working on."

[sidebar]

YES AND NO QUESTIONS

Is marijuana legal now?

No. Possession of any amount of marijuana violates state law. Under
the new law, possession of an ounce or less is a civil, not a
criminal, violation.

So, is there really any difference?

Yes. A civil violation doesn't go on any permanent record. An
employer doing a background check will have no access to the
citation, and it can't disqualify you from getting a college
scholarship or a firearms identification card.

Can I be charged with distribution of marijuana, if I have less than an ounce?

Yes. Intent to distribute is usually determined by how the drug is
packaged, or whether police observe a sale, not the amount.

What if I grow my own, but don't grow more than an ounce, is that legal?

No. It is still a criminal violation to grow any amount of marijuana.

If I'm smoking a joint while driving, and I have less than an ounce
in the car, can I be arrested?

Yes. The new law does not change any laws or penalties for driving
under the influence of drugs.

If I get caught with less than an ounce at school, can I get kicked out?

Yes. State law gives the school principal a range of options for
possession on school grounds, or at a school event, including expulsion.

If I refuse to give the police officer my name, can he still cite me?

No. Unless the officer can identify you in another way. Remember, we
live on a small Island, and police tend to be tougher on offenders
who don't cooperate.

Do my parents have to know about the citation?

Yes. Police are required to send a copy to the parents of anyone 18 or under.

Are the penalties under the new law less severe than the old laws?

Yes and no. If cited under the new law, you will be fined $100, but
you won't have a criminal record. But the most common dispositions
for a first offense under the old law were often less severe: you
were not fined, underage offenders did not have to attend drug
awareness programs nor complete community service, you were not be
subject to a $1,000 fine if you didn't perform the community service,
and you had a right to appeal a court's decision.