The Joint Judiciary Committee is scheduled to consider two bills that could close an edible marijuana “loophole,” clearing the way for more felony pot prosecutions.
The committee is scheduled to meet Nov. 16-17 in Wheatland to consider measures that would add marijuana laced foods, drinks and other products to the criminal code, thus enabling felony convictions for possession of non-leafy marijuana products.
Existing felony possession laws regulate “plant form” of the Schedule I drug, stymying prosecutors and causing judges to balk at anything beyond misdemeanor convictions for possession of other pot products.
The bills — “Possession of marihuana products” and “Possession of non-plant form marihuana” — would add felony penalties for the possession of non-plant-form marijuana. Those could bring up to 5 years’ prison time. The drug is increasingly consumed as treats and drinks. The bills would distinguish between misdemeanor and felony possession for different amounts of various pot products.
The felony edible loophole “has been a problem for several years,” said Rep. Dan Kirkbride, co-chairman of the Joint Judiciary Committee.
Co-chairman Sen. Leland Christensen agreed the amendments to existing laws would mend perceived shortcomings. “These bills answer the question the courts have posed,” he said.
One of those questions emerged in 2015 when District Court Judge Steven Sharpe threw out felony charges against Christopher Piessens, who had been stopped with 1.9 pounds of marijuana candies, cookies, bread and chocolate bars. Sharpe pointed to the existing law in his ruling, saying “it is undisputed that the edibles in this case were not in plant form.”
The result brought complaints, including from Sweetwater County prosecutor Daniel Erramouspe, who said only misdemeanor charges can be secured against individuals “even if you’ve got a van full of gummy bears.” He made his comments at a judiciary committee meeting last year. The Legislature has so far been unable to update the law.
Lawmakers have been stymied in some cases by members who object to making felons of offenders possessing a small amount of pot mixed with larger quantities of incidental ingredients like flour, butter, and sugar. It is difficult and expensive to determine the amount of the drug in such mixtures, raising questions as to whether people would be imprisoned primarily for cookie dough instead of the actual drug.
The co-chairmen are bucking a national trend of state marijuana law liberalization. Neighboring Colorado, for example, legalized recreational marijuana for adults aged 21 and older in 2014. For border-area residents, including University of Wyoming students in Laramie, the distance between jail-time and legal behavior is 65-miles or less.
“I’m not very friendly toward marijuana getting its foot in the door in Wyoming,” Kirkbride said. “One of the things they talk about is how the strength of this stuff has increased since the ’70s and ’80s. I’m a bit old-school. I feel threatened by that.”
Christensen said his experience in law enforcement — he worked as a sheriff’s deputy, among other positions — makes him wary of marijuana.
“I’ve seen the long-term effect and how it’s impacted people,” he said. “My experience has been there’s consequences with this. It’s a drug that has to be treated carefully.”
Both said they worry particularly about young people.
Marijuana advocates point to costly and unproductive prison sentences, and potential tax revenue from legal sales of the drug as reasons to ease marijuana laws.
Today in Wyoming, simply being high on marijuana is a misdemeanor punishable by up to 6 months in jail and a $750 fine.
The two bills are nuanced
“Possession of non-plant form marijuana”, known as Draft 33, is substantially the same measure as last year’s HB 197, which died after House and Senate members could not reconcile numerous amendments made during the session. Draft 33 offers lawmakers two options. The first would make it a felony to have 3 ounces or more of marijuana “in a form other than plant form.”
The second alternative in Draft 33 is more nuanced but also would provide a felony-penalty definition. It would draw the line between misdemeanor and felonies at 36 ounces for commercially packaged drinks. Thirty-six ounces or more would be a felony. The threshold would be set at 3 grams for resins and 3 ounces for other products, like gummy bears and brownies.
Legal ingredients such as water, sugar and flour would count toward the weight totals.
The second bill, Draft 31, “Possession of marijuana products,” would set the felony limit at various levels depending on product class. The bill separates baked goods, candies, edibles, ointments, potable liquids, tinctures and similar substances from more refined and potent products.
Possession of less than three ounces of baked goods and such would be a misdemeanor punishable by up to a 20-day jail sentence and no more than $200, or both. That would be a lesser penalty than for any existing marijuana infraction in Wyoming today.
A second offense within 10 years would also be a misdemeanor with up to a six-month, $750 penalty. For a third misdemeanor conviction, the penalty could be up to one year in jail and a $5,000 fine. A subsequent conviction within 10 years would be a felony punishable by up to 5 years’ prison and $10,000.
The more refined products include powders, pills and substances like hashish and hash oil. For those more refined products, possession of three-tenths of a gram or more would constitute a felony, unless the substance was in powder or pill forms. Possession of powders and pills would be subject to felony prosecution starting at 3 grams.
Only one of the two draft bills likely would be adopted because the measures seek to resolve the same issue using different approaches, Kirkbride said.
An uncertain outlook for updating laws
Christensen won’t predict what might happen to the various versions. “I’ve stopped anticipating,” he said. “We need to come up with a solution to plug the loophole.”
He’s reserving judgment on the measure that would reduce first-offense penalties for possession of most marijuana products. Today conviction could bring up to a year and a $1,000 fine. Draft 31 would reduce that to no more than 20 days and $200.
Lawmakers may not be in the mood to cut penalties. Last year a bill to significantly reduce them “didn’t make it very far,” Christensen said. “I think for now we’re still in the right place.”
For Kirkbride, the second alternative in Draft 33 — the 35-ounce misdemeanor limit for commercial marijuana drinks — is the preferable bill. He appreciates that the bill accommodates for “marijuana soda pop,” he said. he said. “If somebody’s [caught] they’re not going to get in [too much] trouble for drinking one can.”
He “for sure” anticipates discussion and debate at the committee meeting. And, “we’re going to hear again from the state lab about how this is measured and some of the problems with getting an accurate, affordable measurement.”