Police anxious about pot law enforcement

ADDISON COUNTY — Possession of a small amount of marijuana will become legal in Vermont this Sunday, July 1, and as the date approaches, local law enforcement officials are expressing continued concerns about ambiguities in the new law that could make enforcement and prosecution more difficult.
The law, Act 86, was passed by the legislature and signed by Gov. Phil Scott in January. Vermont is the ninth state to legalize marijuana, but the first to pass legalization through the legislature, rather than by a statewide referendum. And because of the compromises inherent to the legislative process, Vermont’s form of legalization is more limited than those of other states. The result, according to local officials, is essentially an awkward stepping-stone on the road to a fully regulated and taxed marijuana market.
“I would anticipate that this is just a trial balloon, and that we’ll be looking at full-scale legalization with a regulated marketplace in the next couple of years,” said Addison County State’s Attorney Dennis Wygmans.
In the meantime, however, law enforcement may be in for a challenge.
“The law leaves a lot up to the opinions of the people that are using (marijuana) and the opinions of the officers who are trying to enforce it,” Middlebury Police Chief Thomas Hanley (pictured) said. “Those are bad precedents to go on.”
Instead of the regulated marketplace enacted by other states, Vermont’s new law legalizes only limited possession and growth of marijuana — selling it remains illegal. The law stipulates that adults age 21 or older may possess up to one ounce of marijuana and grow up to two “mature” and four “immature” plants in a space within their own home screened from public view. Anyone who exceeds those quantities of possession, or seeks to buy or sell marijuana, faces criminal penalties.
The law also includes penalties for distributing marijuana to those under 21, consuming marijuana (both smoking and eating) in public, driving while under the influence of the drug and possessing open containers of marijuana in a motor vehicle.
Several Addison County law enforcement officers noted ambiguities in provisions pertaining to open containers and plant maturity as potentially problematic. While the law institutes a $200 penalty for possessing an open container of marijuana in the passenger area of a car, prosecutor Wygmans noted that the definition of “open container” remains frustratingly hazy as it pertains to marijuana.
“I think we know what an open container of alcohol is because you can’t just leave it sloshing around in the car,” he said. “But we don’t know what an open container of marijuana is, necessarily. Does that mean a bud in a pipe? Does that mean an open baggy? Does that mean somebody has some hanging out in a pocket of their shirt, or something like that?”
One provision states that “mature” marijuana plants are female plants that have flowered and have observable buds, while “immature” plants lack buds. Hanley pointed out that this rule could easily be circumvented by growers tampering with buds and flowers.
“The law says you can have mature plants and it defines a mature plant as one that has flowered and has visible buds,” he said. “But what happens when you have the mature plant, and someone has taken the flowers and buds off it? Does that make it an immature plant or does that make it a mature plant that somebody has cut the flowers off of? That wasn’t dealt with by the legislature.”
Multiple officials said that political concerns may have weakened the law’s coherence. Wygmans said that the existence of “positional camps” during the drafting process prevented lawmakers from appreciating the input of litigators and enforcement personnel who would eventually be tasked with day-to-day handling of the law.
“A lot of the time people aren’t willing to put aside the difference and make a law that will work because they’ve been butting heads the entire time,” Wygmans said. “It would be helpful if we were to have a resource to be able to speak to people that are actually in the field litigating these issues, as opposed to figureheads of the various organizations who have their positions. Positional bargaining is never all that successful.”
Sen. Claire Ayer, D-Addison, voted for the legalization bill, but didn’t dispute the flaws identified by law enforcement. Ayer said her support was based on the assumption that this year’s limited legalization would pave the way for full regulation and taxation of marijuana in the future.
“I’m not in favor of the bill that passed,” she said. “But my understanding was — the thinking is that it will pass that way, and then we’ll eventually get to tax and regulate.”
Ayer said that a regulated market would better ensure the safety of the marijuana being smoked by Vermonters.
“The revenues generated from tax and regulate could go to prevention activities,” she said. “Illegal dealers aren’t going to ask kids in the junior high parking lot how old they are. And without regulation there’s no way of knowing what’s in the marijuana — it could be laced.”
Ayer said she believed the Senate would be willing to enact changes to the new law if needed, including a renewed effort to tax and regulate the drug. She couldn’t guarantee, however, that the House would be equally receptive.
Kathy Blume, production and events manager for the cannabis advocacy group Heady Vermont, said she hopes police will be understanding as citizens who might be unclear on the extent of the privileges afforded by the bill become more familiar with the new law.
“I would hope that law enforcement would take a gentler approach to how they engage with the general public as people become familiar with the law. For example, if someone’s walking down the street smoking a joint, that they could say, you know what, that’s still not legal,” she said. “Most people want to abide by the law, but it takes a little bit of time to understand what the law is.”
Beyond issues of ambiguity, several officials also shared concerns about the overall consequences of legalization. Vergennes Police Chief George Merkel (pictured), who has been an outspoken opponent of the legislation, said he was especially worried about marijuana’s effects on highway safety.
“I’m fearful,” he said. “When you start saying that (the number of) impaired drivers will not go up as a result of legalization — I have a hard time believing that. I’m anticipating the worst.”
Wygmans expressed a similar sentiment, noting that the state’s hiring of drug recognition experts (DREs) to assess drivers’ impairment would not necessarily eliminate unsafe driving.
“It’s certainly not the magic wand that some people like to think it is,” he said. “Like, ‘Oh, we’ll just throw a lot of DREs at the problem and it’ll be fine.’ A lot of folks haven’t been to those car accidents that I’ve been to, where I know the operator was highly impaired from marijuana and you’ve got a car of dead people.”
Wygmans conceded that the issue is complex, and noted that an average citizen views the issue differently than a law enforcement officer would.
“As a citizen, I look at it as — there are a lot of people that are being swirled into the criminal justice system possibly unfairly because of marijuana,” he said. “A lot of times, though, law enforcement here in Vermont gets painted with a brush that has picked up paint from a different jurisdiction.”
Local police hope that a meeting with Wygmans scheduled for early next month to discuss new enforcement strategies will help resolve some of their concerns.
And not all officials are equally fretful about legalization.
“I’m not ready to push the panic button yet,” said Addison County Sheriff Donald Keeler. “I’m not taking a position for or against — my job is to follow the law. We’ll see how it goes, we’ll see what a year brings.”

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