Pubdate: Sat, 19 Dec 2015
Source: Alaska Dispatch News (AK)
Column: Highly Informed
Copyright: 2015 Alaska Dispatch Publishing
Note: Anchorage Daily News until July '14
Author: Scott Woodham


Nathan wonders something that a few other people have asked about 
too: "My understanding is that it is currently illegal to consume or 
possess any amount of marijuana within 500 feet of a school zone, 
regardless if you're on private property or not. I have a two-part 
question. 1. Will the law allow people to consume marijuana in their 
private residence, regardless of where it is in relation to a school 
zone? 2. Will businesses be allowed to sell marijuana within 500 feet 
of a school zone?"

These questions are based on a little bit of a misconception, but 
let's get the simple part out of the way first. State regulations 
recently adopted won't license a marijuana business located within 
500 feet of "school grounds, a recreation or youth center, a building 
in which religious services are regularly conducted, or a 
correctional facility." But those regulations are for the legal 
industry, separate from the criminal statutes on the books punishing 
possession near school grounds.

Alaska criminal law establishes 500-foot drug-free zones around 
school grounds and youth centers and on school buses. When it comes 
to legal amounts of personal-use cannabis inside a private home, 
you're in the clear. So if you're 21 or older, feel free to puff in 
peace inside your own home, no matter how close you live to a school. 
You'd be in the clear even if you built a scale model of a high 
school bathroom in your garage to host sessions with all your adult friends.

To be certain, though, state criminal laws don't talk about 
consumption, just possession. Consumption has not historically been 
the illegal thing when it comes to controlled substances, for reasons 
related to evidence and proof. But regardless of that, when it comes 
to possessing cannabis, Alaskans have some history.

Seneca Theno, Anchorage city prosecutor, pointed out in a phone 
interview that even before the initiative to legalize, tax and 
regulate cannabis here, state drug-free buffer zone statutes already 
contained an affirmative defense for charges relating to in-home 
cannabis possession in drug free zones that is contained "entirely 
within a private residence."

Legal textbooks agree that a defendant giving an affirmative defense 
doesn't mean that the alleged action will be considered legal and 
charges automatically thrown out. It just means that the defendant 
can admit to the alleged activity and try to prove facts that provide 
an excuse or justification for why they did what they did, in hopes 
of removing or reducing their liability. One common example is the 
so-called "insanity defense."

In the case of marijuana, Alaskans have had strong justifications 
available to them for certain amounts of strictly personal cannabis 
in the home, in the form of legal precedent based on the 
constitutional guarantee of privacy.

If you're keeping score at home, the affirmative defense pertaining 
to Alaska's drug-free school zones laws resides in Alaska statutes 
section 11.71.040, and is titled "Misconduct Involving a Controlled 
Substance in the Fourth Degree," a Class C felony also known as 
MICS4. That criminal provision wasn't repealed with the passage of 
Ballot Measure 2 and is still on the books. Here's the text.

(b) It is an affirmative defense to a prosecution under (a)(4)(A) of 
this section that the prohibited conduct took place entirely within a 
private residence located within 500 feet of the school grounds or 
recreation or youth center. Nothing in this subsection precludes a 
prosecution under any other provision of this section or any other 
section of this chapter.

And "(a)(4)(A)" of that section says that a person is guilty of MICS4 
if they possess certain controlled substances, including marijuana, 
"with reckless disregard that the possession occurs (i) on or within 
500 feet of school grounds; or (ii) at or within 500 feet of a 
recreation or youth center; or (B) on a school bus."

So, regardless of the initiative to legalize, tax and regulate 
cannabis, Alaskans have had an affirmative defense to the state 
drug-free school zone law and a body of legal precedent to refer to 
when making their case. But now voters have enshrined the spirit of 
that legal precedent in statute, explicitly allowing adult Alaskans 
to grow up to 6 plants in their own homes, up to three of them 
flowering at a time, and possess all of the produce their plants grow.

Those facts may not render Alaska's drug-free school zone law 
completely moot when it comes to adult personal-use possession and 
cultivation inside one's own home, but it's pretty darn close in my 
opinion. The criminal law regarding marijuana and school zones is 
still on the books, but also in my opinion, it's very unlikely that 
anyone will be charged under it for smoking or possessing at home, or 
even maintaining a legally compliant home garden.

Although it takes us into the hypothetical weeds a bit, I also think 
it would be difficult for anyone to be charged for legally compliant 
personal use possession in their backyard if their backyard were 
within that 500-foot zone. First of all, how is anyone going to know 
someone's possessing cannabis if no one can see it from public 
property? But as long as those criminal laws stay on the books, law 
enforcement officers will be confronted with a choice. And how 
they'll navigate that choice remains an open question based on the 
facts they encounter.

Alaska State Troopers spokeswoman Megan Peters said in an email, 
referring to the MICS4 statute identified in this column above, 
"Troopers will use this statute as our guide when investigating these 
incidents. How they turn out in court is not something we can 
predict." She said that the statutes are still "in effect and subject 
to interpretation and enforcement of Alaska law enforcement agencies 
and the Department of Law District Attorney's Office."

Alaska Department of Law Criminal Division Director John Skidmore 
said he hasn't had time to do analysis and therefore cannot comment 
on this legal question. If that changes, I'll update this space.

Alcoholic Beverage Control Board Director Cynthia Franklin confirmed 
that the regulations recently adopted by the Marijuana Control Board 
only cover licensed commercial marijuana operations, not personal use 
in the home.

Franklin, a former prosecutor herself, said in a phone interview that 
she thinks it would also be difficult for someone to argue that 
personal use would be prohibited in the home in a place where 
commercial sales are also prohibited. For example, she said, the 
statutes passed as Ballot Measure 2 allow communities to opt-out of 
commercial cannabis activity, but if a community opts out, it doesn't 
cancel the statutes that allow some personal cannabis possession and 
growth in the home.

Now, federal law is another kettle of fish. Federal drug-free zones 
extend to 1,000 feet, and are pointed more toward trafficking and 
quantities far larger than what would be involved in state-compliant 
personal-use grows.
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MAP posted-by: Jay Bergstrom