Pubdate: Thu, 04 Sep 2014 Source: Albuquerque Journal (NM) Copyright: 2014 Albuquerque Journal Contact: http://www.abqjournal.com/ Details: http://www.mapinc.org/media/10 Page: A6 STOP BLOWING SMOKE ON SF MARIJUANA LAW "It is unlawful for a person intentionally to possess a controlled substance. ... one ounce or less of marijuana ... is, for the first offense, guilty of a petty misdemeanor and shall be punished by a fine of not less than $50 ... and by imprisonment for not more than 15 days." - N.M. statute 30-31-23, Controlled substances; possession prohibited If New Mexico Attorney General Gary King is entrusted with enforcing New Mexico's laws, then how, exactly, can he opt to kick back on the sidelines when a plain reading of a city pot decriminalization ordinance appears to be in direct conflict with the state statute? King, who happens to be running for governor on the Democratic ticket, supports decriminalization and says through a spokesman "the city of Santa Fe definitely has the authority to enact its own ordinance." OK, but Santa Fe's new City Council-approved ordinance, similar to the failed Albuquerque petition attempt to get local decriminalization on the November ballot, says possession of an ounce or less of marijuana is a civil infraction punishable by a fine of no more than $25. Santa Fe City Attorney Kelley Brennan defends the discrepancy, saying municipalities can have their own drug laws but the penalties "must be the same" as those in the state Criminal Substances Act. Yet it's quite an ambitious argument to say "not less than $50" is the same as "no more than $25." And that argument ignores the jail time language included in state law. You can support decriminalization, but it would seem for the sake of uniformity and constitutionality that needs to happen at the state level via the Legislature and/or the voters statewide. Brennan also maintains there's no conflict with the new city law because, per state law, "any penalty imposed for violation of the Controlled Substances Act is in addition to any civil or administrative penalty or sanction otherwise provided by law." But under that rationale isn't there the possibility of a double whammy? Instead of decriminalization, suspects could face the state criminal at-least-$50 fine and possible jail time plus the city's no-more-than-$25 nuisance fine. Under Brennan's other explanation, that the city law is just "another tool to a police officer's tool box," there's serious potential for unequal, either-or application of the laws, with one suspect facing tougher state criminal charges and another facing more lenient city civil penalties for the same ounce of dope, all based on what an individual police officer decides at a given stop on a given day. If the Legislature really envisioned concurrent overlapping penalties, it should make that clear. If it envisioned clearly separate penalties, say a criminal fine and an administrative license revocation for driving while in possession, ditto. Clearly, setting up law enforcement officers for automatic civilian complaints of being busted for "holding while brown" doesn't seem like a smart way to go. Think the potential for profiling/personal bias isn't there? Look no further than Rio Arriba County to see real-life examples of how that can play out. For candidate King to show voters he's still their attorney general, he needs to weigh in on marijuana decriminalization with a legal analysis, not his personal preference via a spokesman. - --- MAP posted-by: Jay Bergstrom