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45 Words: Criminal Regulation of Marijuana Possession in Oklahoma After SQ 788

By Brian Ted Jones

Before the passage of Initiative Petition 412, State Question 788 (788), the regulation of marijuana in Oklahoma was confined almost exclusively to the criminal courts. Possession by a marijuana user was illegal and prosecuted as a misdemeanor.1 Possession with intent to distribute by a marijuana seller was illegal and prosecuted as a felony.2 Production and trafficking in marijuana by a large-scale marijuana provider distributing in bulk to retail marijuana sellers was likewise illegal and prosecuted as a major felony.3 In fact, the only noncriminal form of marijuana regulation under Oklahoma law prior to 788 was the state’s implementation of federal authorities for possession of marijuana as a Schedule I narcotic.4

In the years immediately preceding the passage of 788, Oklahoma law enforcement agencies were regularly involved in the investigation, apprehension and prosecution of marijuana users, sellers and traffickers. In 2016, the Oklahoma State Bureau of Investigation (OSBI) received 22,995 lab submittals from prosecuting agencies and 6,561 of those submittals requested lab testing for marijuana: 29 percent of the total.5 In that same year, 41.1 percent of all adult and juvenile drug-related arrests in Oklahoma were for possession of marijuana, representing 1,048 juveniles and 9,128 adults.6 In 2017, OSBI marijuana lab submittals increased by 22.8 percent and interdiction agents with the Oklahoma Bureau of Narcotics and Dangerous Drugs (OBN) seized 2,132 pounds of marijuana from vehicles traveling through the state.7

The passage of 788 turns this on its head. Under 788, possession of marijuana by a user is no longer a misdemeanor but a privilege held by patient licensees.8 Under 788, possession by a distributor is no longer a felony but a licensed and regulated commercial activity.9 Under 788, manufacturing marijuana by a grower is no longer a major felony but another licensed and regulated commercial activity10 with no limits on production11 and an immunity from taxation on wholesale sales,12 while trafficking in marijuana is governed by a transportation license available to all commercial licensees.13 In 2017, OBN seized over 2,000 pounds of marijuana through drug interdiction operations.14 As of Feb. 4, 2019, the Oklahoma Medical Marijuana Authority (OMMA) had granted 38,592 patient licenses,15 authorizing each licensee to possess up to 3 ounces of marijuana on their person.16 In less than eight months of granting patient licenses,17 OMMA has approved the legal possession of over three times as much marijuana as OBN seized in all of 2017.

788 ended a system where regulation of an agricultural commodity was the exclusive domain of the criminal code and transferred jurisdiction over that commodity to authorities in the state’s civil law. The simplicity of this transfer belies the revolutionary nature of its effect, in spite of this massive alteration to Oklahoma law, the text of 788 is almost entirely silent on the changes this measure will produce in Oklahoma criminal law. There are 3,177 words in the text of 788, and only 45 of them relate to criminal matters at all.

63 O.S. §420A (A) AND (B) V. 63 O.S. §2-402 (B)(2)
788 included the following two provisions. First, 63 O.S. §420A (A), which says:

A person in possession of a state issued medical marijuana license shall be able to … [c]onsume marijuana legally [and l]egally possess up to three (3) ounces on their person[.]

Second, 63 O.S. §420 (B), which says:

Possession of up to one and one-half (1.5) ounces of marijuana by persons who can state a medical condition, but not in possession of a state issued medical marijuana license, shall constitute a misdemeanor offense with a fine not to exceed Four Hundred Dollars ($400.00).18

These two provisions contain significant overlap with a separate, earlier statute, 63 O.S. §2-402 (A)(1), which says:

It shall be unlawful for any person knowingly or intentionally to possess a controlled dangerous substance19 unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner, while acting in the course of his or her professional practice, or except as otherwise authorized by this act.

The penalty for violation of this statute by possession of marijuana is contained at 63 O.S. §2-402(B)(2), and categorizes the offense as a misdemeanor with a maximum carceral punishment of one year and a maximum fine of $1,000.

A few questions that might be raised under these circumstances can quickly be answered by existing points of Oklahoma criminal law. First, the passage of 788 does not operate retrospectively because Oklahoma criminal statutes never operate retrospectively unless the legislative authority specifically says they do.20 Second, the passage of 788 does not implicitly repeal the marijuana prohibitions of 63 O.S. §2-402 (A)(1) because the Oklahoma law contains a strong presumption against implied repeals, and only where “an irreconcilable conflict” exists between two statutes will the Court of Criminal Appeals find implied repeal and apply the latter statute.21 Third, there is no force of legislative authority under the Oklahoma Constitution that can limit prosecutorial discretion to charge whatever offenses are available under the criminal law of the state: as the Court of Criminal Appeals noted in State v. Haworth, “in our criminal justice system, the executive branch of the government retains broad discretion as to whether, when, and how to prosecute crime.”22 Moreover, although “[q]uestions may arise when two statutes, however plainly worded, appear to cover the same or similar conduct,” the Court of Criminal Appeals has also said “there simply is no rule of statutory construction requiring that a particular pattern of criminal conduct shall only be addressed by one particular criminal provision.”23

Where a conflict could arise would be a scenario where a law enforcement agent arrested, or a prosecutor prosecuted, a patient licensee for possessing 3 ounces or less on their person.24 A prosecutor could theoretically cite Haworth for the ground that both 63 O.S. §2-402 (A)(1) and 63 O.S. §420A (A) exist independently of one another, and where the prior law, without being repealed, authorized arrest and prosecution for one form of conduct, the subsequent law cannot prevent arrest and prosecution for the same form of conduct simply by being later in time.25

This would be an especially treacherous route for a prosecutor to embark upon, however, given the ease with which 63 O.S. §2-402 (A)(1) and 63 O.S. §420A (A) may coexist with one another, so long as law enforcement authorities perform the plain legal duty of recognizing the validity of OMMA patient licenses.26

Indeed, a strong argument can be made that no conflict whatsoever exists between 63 O.S. §2-402 (A)(1) and 63 O.S. §420A (A), since the former statute only prohibits possession of marijuana “unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner, while acting in the course of his or her professional practice[.]” 788 specifically authorizes possession of marijuana pursuant to a state-issued license obtainable only on the recommendation of a board-certified physician “according to the accepted standards a reasonable and prudent physician would follow when recommending or approving any medication.”27 In other words, the same general species of immunity from arrest or prosecution provided to patient licensees under 788 was already specifically recognized by 63 O.S. §2-402 (A)(1).

One can subtract, therefore, all the marijuana possession covered by 63 O.S. §420A (A) from Oklahoma criminal law because the passage of 788 added that activity to Oklahoma civil law. One is left, then, with the full scope of criminal liability for simple possession of marijuana divided between two statutes: the activity still covered in 63 O.S. §2-402 (A)(1) and the activity now covered by 63 O.S. §420A (B).

63 O.S. §2-402 (B)(2) V. 63 O.S. §420A (B)
Both 63 O.S. §2-402 (B)(2) (pre-788 statute) and 63 O.S. §420A (B) (post-788 statute) attach criminal liability to the same act (possessing marijuana without legal authority) with the same mens rea (“knowledge and control” under Staples v. State).28 The major difference between the pre-788 statute and the post-788 statute lies in the criminal penalty provided for this conduct: the pre-788 statute authorizes a year in jail and a maximum fine of $1000,29 while the post-788 statute does not authorize any jail time and only authorizes a maximum fine of $400.30 Where a police officer encounters a patient licensee in possession of 3 ounces or less on their person, the person is not exposed to criminal liability at all because this activity is authorized by 63 O.S. §420A: neither the pre-788 statute or the post-788 statute come into play. Where a police officer encounters a nonlicensee in possession of more than 1.5 ounces, there is likewise no question whether the activity is authorized by 63 O.S. §420A (it is not) and likewise no question about whether the activity is governed by the pre-788 statute or the post-788 statute. Since the post-788 statute only affects the rights of persons in possession of 1.5 ounces or less, the pre-788 statute continues to apply.31

The question of whether the pre-788 statute or the post-788 statute applies would be raised when a police officer encounters a nonlicensee in possession of 1.5 ounces or less, and the underlying question at that point would become, “Can the arrestee state a medical condition?”32

Under the pre-788 statute, everyone in possession of marijuana is guilty of a misdemeanor and can potentially be jailed for a year as well as potentially fined $1,000.33 Under the post-788 statute, anyone who is not a patient licensee in possession of 1.5 ounces or less of marijuana is likewise guilty of a misdemeanor but cannot receive a jail sentence and can only be fined $400 if they “can state a medical condition.”34 The post-788 statute plainly provides for a more lenient penalty, therefore arrestees would, naturally, prefer the penalty of the post-788 statute over the pre-788 statute. Courts and litigators should then have a ready sense for what constitutes “stat[ing] a medical condition” under the post-788 statute.

Note the post-788 statute does not require an arrestee to “prove a medical condition,” merely to “state” a medical condition.35 Note as well that the post-788 statute does not require an arrestee to state a “specific” medical condition.36 Under the “plain and ordinary meaning” of the post-788 statute, a person is immune from the higher penalty range under the pre-788 statute and must receive the lower penalty range under the post-788 statute if they “can state a medical condition.” They do not have to prove they have a medical condition, nor do they have to say what medical condition they have.37

Suppose, though, an arresting agency decided not to honor the plain meaning of the post-788 statute, and arrested persons under the pre-788 statute who could “state a medical condition,” but did not possess proof of that condition nor were willing to state to the arresting officer the underlying medical condition they possessed.38 Suppose further that a prosecuting agency decided to prosecute a person under the pre-788 statute instead of the post-788 statute even though the person made it clear to the prosecutor that they could “state a medical condition” but did not provide proof of the condition nor identify that condition.39 A defendant facing this predicament could feel reasonable confidence in litigating the matter. First, the “plain and ordinary meaning” of the statute supports their position.40 Second, any attempt by a police officer or prosecutor to deploy compulsory process to secure medical documents to confirm or disprove the defendant’s assertion would meet obstacles contained in federal law under the Health Insurance Portability and Accountability Act (HIPPA), which generally requires a court order prior to the production of patient records to a law enforcement agency or a court.41 Third, a key piece of evidence for this reading of the post-788 statute can be found in the substitute ballot title for 788 provided by then-Attorney General E. Scott Pruitt to the Oklahoma secretary of state on Aug. 25, 2016, which described the effect of the post-788 statute this way: “Unlicensed possession by an individual who claims to have a medical condition is punishable by a fine not exceeding $400.”42

In Oklahoma, 788 fundamentally transformed the law of marijuana possession. Oklahoma criminal courts no longer have sole authority over the production, distribution and possession of this commodity. Instead, civil law, civil courts and agencies of the civil power will share authority, with the criminal courts retaining a small, uncertain portion. Indeed, the future of marijuana policy in Oklahoma will almost certainly be driven far more by the 3,132 in 788 that are concerned with the licensing, governance and taxation of marijuana than it will be by the 45 words in 788 concerned with its continuing criminal prohibition.

Brian Ted Jones is a solo practitioner in the firm Brian Ted Jones PC. He is a graduate of St. John’s College and holds a law degree from the OU College of Law.

1. 63 O.S. §2-402(B)(2) (carrying a maximum carceral sentence of one year a maximum fine of $1,000).
2. 63 O.S. §2-401 (B)(2) (carrying a carceral range of two years to life, probation allowed and a maximum fine of $20,000).
3. 63 O.S. §2-415(D)(2) (carrying a carceral range of four years to life, with no possibility of probation and a fine range of $100,000 to $500,000).
4. See 63 O.S. §2-101 et seq and OKLA. ADMIN. CODE §475:10-1-1 et seq.
5. Oklahoma State Bureau of Narcotics and Dangerous Drugs, 2017 Oklahoma Drug Threat Assessment, June 19, 2017 at p.3.
6. Id. at p.9.
7. Oklahoma State Bureau of Narcotics and Dangerous Drugs, 2018 Oklahoma Drug Threat Assessment, Sept. 12, 2018, at p.8.
8. 63 O.S. §420A (A).
9. 63 O.S. §421A.
10. 63 O.S. §422A.
11. Id. at 422A (D).
12. Id. at 422A (C).
13. 63 O.S. §§424A (A) and (B).
14. Oklahoma State Bureau of Narcotics and Dangerous Drugs, 2018 Oklahoma Drug Threat Assessment, Sept. 12, 2018, at p.8.
15. Oklahoma Medical Marijuana Authority (@OMMAOK), Sept. 24, 2018, 9:11 a.m., www.twitter.com/OMMAOK/status/1044227934167465984.
16. 63 O.S. §420A (A)(2).
17. Press Release, Oklahoma Medical Marijuana Authority, Oklahoma Medical Marijuana License Applications to Open Saturday (Aug. 24, 2018) available at //omma.ok.gov/oklahoma-medical-marijuana-license-applications-to-open-saturday.
18. 63 O.S. §420A (B).
19. See 63 O.S. §2-101 (8), defining a “controlled dangerous substance” as a “drug, substance, or immediate precursor in Schedules I through V of the Uniform Controlled Dangerous Substances Act”. See also 63 O.S. §2-204 (C)(12), defining “marijuana” as a Schedule I “hallucinogenic substance[.]”
20. Witherow v. State, 2017 OK CR 17, 9.
21. State v. Stice, 2012 OK CR 14, 12 (citing City of Sand Springs v. Dep’t of Pub. Welfare, 1980 OK 36, 28.
22. State v. Haworth, 2012 OK CR 12, 13. See also Okla. const. art. 4, §1: “The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others.”
23. Haworth at 12.
24. 63 O.S. §420A (A)(2).
25. Haworth at ¶¶11-12.
26. Cf. Rule 10.6 (A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2003).
27. 63 O.S. §420A (M).
28. 1974 OK CR 208, 8-9.
29. 63 O.S. §2-402 (B)(2).
30. 63 O.S. §420A (B).
31. Id.
32. Id.
33. 63 O.S. §2-402 (B)(2).
34. 63 O.S. §420A (B).
35. Id.
36. Id.
37. State v. Stice2012 OK CR 14, ¶11 (citing Wallace v. State, 1997 OK CR 18, ¶4).
38. 63 O.S. §420A (B).
39. Id.
40. State v. Stice2012 OK CR 14, ¶11 (citing Wallace v. State, 1997 OK CR 18, ¶4).
41. Codified at 42 U.S.C. §300gg, 29 U.S.C. §1181 et seq, and 42 U.S.C. §1320d et seq.
42. Letter from E. Scott Pruitt, Oklahoma attorney general, to Chris Benge, Oklahoma secretary of state, RE: Ballot Title for State Question No. 788, Initiative Petition No. 412 (Aug. 25, 2016) (on file with the Office of the Secretary of State)(emphasis added).

Originally published in the Oklahoma Bar Journal -- OBJ 90 pg. 6 (March 2019)