Pubdate: Fri, 16 Jan 2009
Source: Melrose Free Press (MA)
Copyright: 2009 GateHouse Media, Inc.
Author: Daniel DeMaina
Bookmark: (Cannabis)
Bookmark: (Decrim/Legalization)


Melrose - The law voters approved last November decriminalizing 
possession of marijuana also has a clause that allows  cities and 
towns to adopt additional penalties for  using marijuana in public -- 
including a criminal  charge -- and Melrose Police Chief Mike Lyle 
wants the  Board of Aldermen to consider adopting a $300 fine for 
such an offense.

The new law, which made possession of less than an  ounce of 
marijuana a civil offense, carrying a $100  fine, passed the ballot 
in November with 65 percent  approval. Previously, possession of 
similar amounts of  the drug was a criminal offense with a possible 
fine of  $500 and a maximum six-month jail term.

However, cities and towns can adopt local ordinances or  bylaws 
regulating or prohibiting the public use of  marijuana, or other 
substances with the active  ingredient tetrahydrocannabinol (THC), 
such as hashish  or hash oil. The state Executive Office of Public 
Safety and Security (EOPSS) released non-binding  guidelines for law 
enforcement officials in December  and recommended municipalities 
adopt the guidelines as  law.

Attorney General Martha Coakley's office prepared a  sample law that 
prohibits smoking, ingesting or  otherwise consuming marijuana or THC 
in public places  and imposes up to a $300 fine for each violation.

The sample law notes that each city or town can choose  to enforce 
the $300 fine in three different ways -- as  a civil citation, 
through a civil court summons or, as  recommended by the EOPSS, 
through criminal indictment,  which would make using marijuana in 
public a  misdemeanor criminal offense.

This week, Chief Lyle proposed to the Board of Aldermen  imposing the 
$300 fine for public marijuana use,  although on Tuesday he said he 
was "on the fence" as to  whether the fine should be issued as a 
civil citation  or criminal offense.

Similarly, Wakefield Police Chief Richard Smith has  filed a proposal 
to make public use of marijuana a  civil offense with a fine of $300, 
according to the  Free Press' sister paper, the Wakefield Observer. 
Wakefield Town Counsel Thomas Mullen has drafted a  proposed bylaw 
based on the EOPSS guidelines and  expects that Smith will ask the 
Board of Selectmen to  put the proposal before voters at Wakefield's 
April  Town Meeting.

Public use of alcohol vs. marijuana

The Aldermen's Appropriations Committee, comprised of  the entire 
board, did not vote on Lyle's proposal at  Monday's meeting as 
discussion centered on how the  state law will be enforced, but Ward 
3 Alderman Frank  Wright noted the current disparity in penalties for 
public use of alcohol versus marijuana.

"In public, I can smoke a joint and get a ticket. I  drink a beer and 
I get arrested," Wright said. "And if  we do nothing tonight, I can 
smoke a joint and thumb my  nose at the police department."

Lyle responded that Melrose officers could still issue  a $100 
citation for public use of marijuana, but take  no further action 
unless the city adopts the additional  penalties.

Wright asked Lyle when Melrose police officers could  legally search 
an individual or vehicle if the officer  suspects possession of marijuana.

Lyle answered that marijuana is still an illegal  substance, despite 
the decriminalization law, and can  be confiscated by police when 
issuing a citation. Also,  police officers can search a person or 
vehicle with  probable cause, but Lyle said to search a person in 
public, an officer would likely have to see the  marijuana itself to 
have such cause.

A person under arrest is still subject to a search  after the arrest, 
Lyle added, and a person with an  ounce or less of marijuana could 
still be charged with  intent to distribute, if the way the marijuana 
is  packaged -- such as in several separate bags of equal  amounts -- 
to imply distribution.

Minors face additional penalties for marijuana  possession. A person 
under 18 years old cited for  marijuana possession must also complete 
four hours of a  drug awareness program, developed by the state's 
Department of Youth Services, and 10 hours of community  service or 
face a $1,000 fine. A notice will also be  sent to the minor's 
parents or guardian within 15 days  of the citation's issuance.

Chief foresees enforcement challenges

Several Aldermen seemed to support sending the notice  to the minor's 
guardian through registered mail to  ensure its delivery, an idea 
initially aired by Ward 7  Alderman William Forbes -- "I know if I 
got one [a  citation], I'd be watching the mail every day," 
Forbes  said, invoking laughter -- but the board cannot adopt  any 
amendments to the state law itself.

Lyle told the Aldermen about enforcement challenges he  foresees, 
such as someone cited for possession of  marijuana refusing to give 
police their name. The chief  said because marijuana possession is 
now a non-criminal  offense, those cited have no obligation to 
identify themselves and police have no recourse to ask for identification.

The state law that covers all non-criminal citation  proceedings also 
covers marijuana citations, meaning  that violators may appeal the 
citation in court within  21 days -- similar to a clerk-magistrate 
hearing for a  civil motor vehicle infraction -- or pay the $100 fine.

The city would be responsible for tracking those  citations and 
sending a copy to Malden District Court,  although Lyle expressed 
concern that unpaid citations  could go unpenalized and is proposing 
copying the  Middlesex District Attorney's office on all marijuana citations.

Alderman At-Large Paul Brodeur asked Lyle about reports  that some 
Massachusetts police chiefs intend to not  enforce the law at all 
because of what they say are  difficulties with enforcement or 
deficiencies within  the law itself.

Lyle, who said he did not support Question 2 and  believes marijuana 
is a gateway drug, responded, "I  believe that the city of Melrose 
Police Department has  an obligation to this community to enforce 
this regulation."
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MAP posted-by: Jay Bergstrom