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Gray areas

State law enforcement groups are skeptical of State Question 788.

Ben Luschen Jun 14, 2018 8:05 AM
Oklahoma District Attorneys Council / provided
Oklahoma District Attorneys Association president Kevin Buchanan believes State Question 788 consitiutes de facto recreational marijuana legalization.

Editor’s note: This article is part of a series examining cannabis and cannabinoids in Oklahoma leading up to the June 26 medical marijuana referendum.

There are many Oklahomans who advocate for the health benefits legalized medical marijuana could bring to the state, but some law enforcement groups argue that State Question 788 will bring new challenges to their agencies.

Voters are set to decide on SQ788, which would legalize marijuana for medical purposes, during the June 26 state primaries. Kevin Buchanan, president of Oklahoma District Attorneys Association and district attorney over Oklahoma’s District 11 in the state’s northeast corner, believes the language in the measure is misleading.

“We perceive this to be recreational marijuana masquerading as medical,” Buchanan said.

The primary point of contention between those who helped write the language in SQ788 and law enforcement groups is an intentional lack of qualifying conditions for which medical marijuana could be prescribed.

Proponents of SQ788 frequently state that pre-set conditions would hinder free market development and could exclude some who need treatment. Law enforcement agencies and other opponents to the state question argue that the lack of description makes the new proposed law recreational by default.

Buchanan believes SQ788 is an intentionally secretive attempt to bring de facto recreational marijuana to Oklahoma without saying so.

“If we’re going to do it,” he said, “then let’s put it on the ballot, call it what it is and let the vote happen. Then we’ll live with it however that vote falls.”

Oklahoma District Attorneys Association is one of several coalition agencies in the oppositional super PAC (political action committee) SQ788 Is Not Medical. Other member groups include the advocacy groups Oklahoma State Medical Association, Oklahoma Pharmacists Association, State Chamber of Oklahoma, Greater Oklahoma City Chamber and others.

Oklahoma Sheriffs’ Association is another member of the super PAC. Executive director Ray McNair questions the necessity of SQ788 when some cannabidiol, or CBD, products are already legal in the state.

The CBD products sold in the state do not contain tetrahydrocannabinol (THC), the substance in marijuana that can get users high. Proponents of SQ788 and those who have studied the medical uses of cannabis argue that the presence of THC makes some CBD products more effective and THC might have its own health benefits, like in the treatment of some types of cancer.

Though he is skeptical about the benefits of THC, McNair said his agency is not against the CBD products that are already legal.

“There are conditions out there that people suffer from that we understand there is a potential value to those people,” McNair said.

Some concerns

McNair sees a number of potential problems that could occur if SQ788 were approved by voters. For one, he wonders if the Oklahoma Department of Health will be able to set up a state medical marijuana program in the 30 days the state question’s language requires.

“Anybody in this state understands that state government doesn’t move that quick while still being efficient at it and having all of the controls in place,” he said.

McNair also thinks the lack of pre-approved conditions for marijuana prescription will inevitably lead to doctors writing scripts for anyone who agrees to pay them a high fee and will eventually wind up mirroring the opioid epidemic.

“There’s some concerns there that you’re swapping out one drug for another drug now,” he said.

According to national data from the U.S. Centers for Disease Control and Disease Prevention (CDC), there were 63,632 drug overdose deaths in 2016. An estimated 42,249 of those deaths involved opioids.

U.S. Drug Enforcement Administration’s official drug fact sheet indicates that no marijuana overdose deaths have been reported.

Because dispensary costs can be higher than some people can afford, McNair also anticipates that many will be led to purchase their marijuana from unapproved sources. People with a license can legally possess medical marijuana, but they must purchase it from an approved and regulated vendor or it could be considered a misdemeanor offense. McNair believes an increase in these types of misdemeanors could lead to increased traffic in county jails, which some counties are not in a position to facilitate.

“We just know from other states that there is an increase in it because the people that typically get these cards don’t have the type of funds to go to a pricy dispensary that’s selling the product,” he said.

Unanswered questions

McNair thinks there are other issues with the state question that law enforcement would like to see sorted out, like whether medical marijuana would be considered a pharmaceutical drug that county jail inmates could not be denied.

He hopes legislators will actively address law enforcement and other concerns in the event that SQ788 is approved by state voters.

“You’ll see a lot of issues that need to be worked out — hopefully legislatively and quickly — if it does pass,” he said.

Buchanan said the state question raises as many questions as it provides answers. The language in SQ788 specifies that those with a marijuana license can grow or possess up to six mature marijuana plants and six seedling plants. But regulating what people grow in their own homes could be challenging.

“How, legitimately, is law enforcement going to monitor that?” Buchanan said.

The district attorney also gave a hypothetical scenario in which someone gets pulled over and a drug dog sniffs marijuana. The driver of the car might not have a license, but if the person can supply a medical explanation for why he has the marijuana, the state question describes the offense as a misdemeanor.

Buchanan said this puts officers in a position to determine if they have been given an adequate medical explanation. He believes SQ788 was intentionally drafted to be vague.

“It’s just so gray there’s no way there’s ever going to be a black-and-white situation,” he said.

Not consulted

Buchanan said the advice of the District Attorney’s Council (DAC) was never sought in the drafting of SQ788’s language.

“Having read this, it seems to be the daydream of some marijuana smokers to me,” he said. “I don’t think they desired any sort of law enforcement insight into this proposition.”

Buchanan said proponents for SQ788 have often said that any issues with the language can be corrected in statute by legislators after its passage. He said he heard the same thing in 2016 from proponents of SQ780, a measure that reclassified several drug and property crimes from felonies to misdemeanors.

After SQ780 was passed with more than 58 percent of the vote, he remembers the outcry that arose after any attempt to change the statute legislatively.

“The same people that were saying, ‘Hey, we can change this if we got something wrong,’ were screaming to the rafters that it was violating the will of the people,” he said.

Any opponents of SQ780 were “villains bar none,” he said. That backlash might prevent the DAC from directly advocating legislative changes to SQ788.

“That is a ploy which neither I nor the DAs will fall for ever again,” he said.

Buchanan said there is no clear consensus within the law enforcement community about the effectiveness of medical marijuana. But when it comes to the law as specified in SQ788, he believes it is a different story.

“Are we against this particular proposition that has been put forth and the provisions that are contained in it? Yes, I think we are universally against this form,” he said.