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DAs differ on pot legalities

FILE - This Monday, Oct. 29, 2012 file photo shows flooding in the streets around a Con Edison substation as the East River overflows into the Dumbo section of Brooklyn, N.Y. during Superstorm Sandy. If metropolitan New York is going to defend itself from surges like the one that overwhelmed the region during Superstorm Sandy, decision makers can start by studying how others have fought the threat of fast-rising water.(AP Photo/Bebeto Matthews, File)

FILE - This Monday, Oct. 29, 2012 file photo shows flooding in the streets around a Con Edison substation as the East River overflows into the Dumbo section of Brooklyn, N.Y. during Superstorm Sandy. If metropolitan New York is going to defend itself from surges like the one that overwhelmed the region during Superstorm Sandy, decision makers can start by studying how others have fought the threat of fast-rising water.(AP Photo/Bebeto Matthews, File)

While some of the state’s district attorneys are pursuing marijuana distribution charges against people who share small quantities of the decriminalized drug, the Northwest District Attorney’s Office is not among them.

The American Civil Liberties Union is challenging the interpretation that one person passing a joint to another constitutes “drug distribution,” which is being used to justify arrests where arrests for simple possession would not be legal.

“There aren’t any cases that have been brought to our office with facts even remotely similar to this,” said Assistant District Attorney Jeremy Bucci, who handles the majority of drug cases that come through the DA’s office.

Other districts, however, have been taking a more aggressive stance on marijuana.

Cape and Islands District Attorney Michael O’Keefe told the Boston Globe he considers sharing to be the same as distribution, and will prosecute those who passed the drug to others.

“The law is still the law,” he said.

Though possession of marijuana in amounts under one ounce was decriminalized in the state after a 2008 ballot question, the distribution of the drug, even in small amounts, remains illegal and comes with a maximum two-year jail sentence. Simple, non-criminal possession results in a $100 fine.

Orange Police Chief Robert Haigh Jr. and Montague Police Chief Charles “Chip” Dodge agreed that a civil fine is appropriate for those who are sharing a joint or pipe, rather than selling.

Dodge said he doesn’t think a distribution charge against someone caught smoking with others would hold up in court.

“Through conversations with my court officer, it’s my understanding that the courts haven’t really been supportive of distribution charges for people found sharing a small amount,” he said.

They also agree that there may be more to a particular incident than a smoke session, and expect their officers to investigate further if they think that’s the case.

That’s where they disagree with the ACLU.

The ACLU says the discovery of non-criminal amounts of marijuana does not give police the right to search a person, vehicle, or residence, calling such searches unconstitutional.

Dodge and Haigh assert that police still have the right to conduct a search to determine if there is actual distribution going on.

“Are we pat-frisking everyone on the street that smells like marijuana? No,” said Haigh. “It falls to the officer’s common sense.”

He said officers should follow their gut feeling if they think someone caught smoking pot may also be selling it, or have a personal stash that should be confiscated along with what was being smoked.

“It’s my preference for our officers to continue to search people (found with small amounts of marijuana),” said Dodge. “If you see someone with a small amount, it had to come from somewhere. There’s a good chance there’s more.

“And, if they find evidence of distribution, I would want them to pursue charges.”

While neither chief is out to pursue what some call “trumped-up” charges against marijuana users, they will continue to go after dealers.

“The actual distribution is what we want to stop,” said Dodge.

“We want to protect the young people in our community.”

David Rainville can be reached at:
drainville@recorder.com
or 413-772-0261, ext. 279

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