Pubdate: Mon, 7 Jan 2008 Source: Tyler Morning Telegraph (TX) Copyright: 2008 T.B. Butler Publishing Company, Inc. Contact: http://www.tylerpaper.com/ Details: http://www.mapinc.org/media/1669 Author: Kenneth Dean, Staff Writer Bookmark: http://www.mapinc.org/pot.htm (Marijuana) Bookmark: http://www.mapinc.org/decrim.htm (Decrim/Legalization) Bookmark: http://www.mapinc.org/testing.htm (Drug Testing) A Night In The Joint MARIJUANA POSSESSION STILL MEANS JAIL TIME Legislators hoped to alleviate jail overcrowding across the state by allowing peace officers to issue citations to those found with less than 4 ounces of marijuana and for other misdemeanors, but local authorities say not arresting people for drug possession is sending the wrong message. With two failed bonds and overcrowding plaguing the Smith County Jail, each person arrested on drug possession adds to the daily total of inmates in jail and that translates to as much as $41 per day that a person is confined. "I don't believe giving a person a ticket for possessing a controlled substance is a good policy and is not a message we want to send," Smith County District Attorney Matt Bingham said. "I believe these people should be arrested, photographed, fingerprinted and worked into the system and this arrest a part of their record." Some who are for Texas House Bill 2391, which went into law last September, say district attorneys, judges and peace officers not using the law to their advantage are being stubborn. Despite the extra tool in law enforcements' hands, only Travis County is using the law and deputies say it is allowing them to spend more time on the streets and less time processing people for misdemeanor offences. But should an officer make the arrest or write a ticket? Citation or Arrest The law gives police officers the discretion to arrest a suspect - as they have been doing - or write citations for a series of class A and B misdemeanors for possession of less than 4 ounces of marijuana. Other misdemeanors for which officers can now write tickets include driving with an invalid license, criminal mischief, creating graffiti and theft, as long as the damage costs for each incident is less than $500. Bingham said issuing a citation for an arrestable offense takes a key tool away from officers and that is the search. "If an officer writes a ticket, then they can't search the vehicle or the person and a lot of times a search leads to the discovery of stolen property, more drugs, guns and greater offences being made," he said. Maj. Mike Lusk of the Smith County Sheriff's Department said his department is making arrest based on the law. "If it is a violation of the law and we have probable cause then we will make an arrest," he said. "On the surface it looks like this law would help with the overcrowding, but we need to see how it plays out in other areas." Tyler Police Chief Gary Swindle said officers make an arrest if there is a usable amount of marijuana found. "Per a discussion with the sheriff and the DA, we will make an arrest if we deem there is a usable amount," he said. Swindle said the misdemeanor arrests aren't typically the type to add to the jail overcrowding issue because those arrested on such charges are not in jail long enough. However, in previous stories about jail overcrowding the newspaper has been told that a person that is confined in jail one hour is counted in the tally that is reported to the jail commission. Jail Administrator and Chief Deputy Gary Pinkerton said anyone booked into the county jail is counted in the system. "You have to go through the same process in the jail on a marijuana charge as you would on a DWI charge or any other charge," he said. "If these people were given a ticket then they wouldn't be here in jail and they wouldn't be counted." Pinkerton added that even with a small bond, some just can't afford to get out of jail. "We have guy in jail now on a $2,000 bond and he can't make it so he just stays in jail," he said. According to records from the Tyler Police Department, officers made 395 misdemeanor arrests for marijuana possession in 2007 and 341 arrests in 2006. But despite the numbers some say there is no guidance in setting up a system to deal with the new legislation. How Would It Work? Smith County Court-at-Law No. 2 Judge Randall Rogers said the law is subject to a lot of miscommunication because there is no system set up for when and where the offender should report to court. Defendants in Smith County are ordered to appear in a court specified by the week of their arrest, but patrol officers don't know the schedule and, therefore, don't know which court to assign. They also don't list a date and time of when they need to appear. Rogers issued an order shortly after the law was passed, ordering all offenders and police officers who issued the citations to appear in his court on the Friday morning following the issuance of the ticket. But Rogers hasn't seen anyone appear in his court during the Friday settings. Rogers also said the defendant's don't have to go through pre-trial drug testing if ticketed. "It just wasn't well thought out," he said. Barry Cooper, a former peace officer who is now speaking out for the legalization for marijuana, said police and district attorneys not using the law to benefit their communities are "showing their ignorance." "I think our legislators are smarter and more researched than our local district attorneys and peace officers," he said. "They are showing their ignorance in not going by what the people want." Randall said he hasn't seen one person cited for the Class B misdemeanor come through his court and, from a lawyer's standpoint, thinks it would be "foolish" for a law enforcement officer to ticket the offender rather than arrest them. Bingham said there were no guidelines set up to implement the law. "There is no book-in photo, no information shared and because the person could be taken to any magistrate which court would have jurisdiction in the case?" he said. "Basically this is record keeping nightmare and not something we want to do." - --- MAP posted-by: Richard Lake