Pubdate: Fri, 16 Jan 2009 Source: Melrose Free Press (MA) Copyright: 2009 GateHouse Media, Inc. Contact: http://www.wickedlocal.com/melrose/ Details: http://www.mapinc.org/media/3790 Author: Daniel DeMaina Bookmark: http://www.mapinc.org/pot.htm (Cannabis) Bookmark: http://www.mapinc.org/decrim.htm (Decrim/Legalization) POLICE CHIEF SEEKS ADDITIONAL MARIJUANA PENALTIES Melrose - The law voters approved last November decriminalizing possession of marijuana also has a clause that allows cities and towns to adopt additional penalties for using marijuana in public -- including a criminal charge -- and Melrose Police Chief Mike Lyle wants the Board of Aldermen to consider adopting a $300 fine for such an offense. The new law, which made possession of less than an ounce of marijuana a civil offense, carrying a $100 fine, passed the ballot in November with 65 percent approval. Previously, possession of similar amounts of the drug was a criminal offense with a possible fine of $500 and a maximum six-month jail term. However, cities and towns can adopt local ordinances or bylaws regulating or prohibiting the public use of marijuana, or other substances with the active ingredient tetrahydrocannabinol (THC), such as hashish or hash oil. The state Executive Office of Public Safety and Security (EOPSS) released non-binding guidelines for law enforcement officials in December and recommended municipalities adopt the guidelines as law. Attorney General Martha Coakley's office prepared a sample law that prohibits smoking, ingesting or otherwise consuming marijuana or THC in public places and imposes up to a $300 fine for each violation. The sample law notes that each city or town can choose to enforce the $300 fine in three different ways -- as a civil citation, through a civil court summons or, as recommended by the EOPSS, through criminal indictment, which would make using marijuana in public a misdemeanor criminal offense. This week, Chief Lyle proposed to the Board of Aldermen imposing the $300 fine for public marijuana use, although on Tuesday he said he was "on the fence" as to whether the fine should be issued as a civil citation or criminal offense. Similarly, Wakefield Police Chief Richard Smith has filed a proposal to make public use of marijuana a civil offense with a fine of $300, according to the Free Press' sister paper, the Wakefield Observer. Wakefield Town Counsel Thomas Mullen has drafted a proposed bylaw based on the EOPSS guidelines and expects that Smith will ask the Board of Selectmen to put the proposal before voters at Wakefield's April Town Meeting. Public use of alcohol vs. marijuana The Aldermen's Appropriations Committee, comprised of the entire board, did not vote on Lyle's proposal at Monday's meeting as discussion centered on how the state law will be enforced, but Ward 3 Alderman Frank Wright noted the current disparity in penalties for public use of alcohol versus marijuana. "In public, I can smoke a joint and get a ticket. I drink a beer and I get arrested," Wright said. "And if we do nothing tonight, I can smoke a joint and thumb my nose at the police department." Lyle responded that Melrose officers could still issue a $100 citation for public use of marijuana, but take no further action unless the city adopts the additional penalties. Wright asked Lyle when Melrose police officers could legally search an individual or vehicle if the officer suspects possession of marijuana. Lyle answered that marijuana is still an illegal substance, despite the decriminalization law, and can be confiscated by police when issuing a citation. Also, police officers can search a person or vehicle with probable cause, but Lyle said to search a person in public, an officer would likely have to see the marijuana itself to have such cause. A person under arrest is still subject to a search after the arrest, Lyle added, and a person with an ounce or less of marijuana could still be charged with intent to distribute, if the way the marijuana is packaged -- such as in several separate bags of equal amounts -- to imply distribution. Minors face additional penalties for marijuana possession. A person under 18 years old cited for marijuana possession must also complete four hours of a drug awareness program, developed by the state's Department of Youth Services, and 10 hours of community service or face a $1,000 fine. A notice will also be sent to the minor's parents or guardian within 15 days of the citation's issuance. Chief foresees enforcement challenges Several Aldermen seemed to support sending the notice to the minor's guardian through registered mail to ensure its delivery, an idea initially aired by Ward 7 Alderman William Forbes -- "I know if I got one [a citation], I'd be watching the mail every day," Forbes said, invoking laughter -- but the board cannot adopt any amendments to the state law itself. Lyle told the Aldermen about enforcement challenges he foresees, such as someone cited for possession of marijuana refusing to give police their name. The chief said because marijuana possession is now a non-criminal offense, those cited have no obligation to identify themselves and police have no recourse to ask for identification. The state law that covers all non-criminal citation proceedings also covers marijuana citations, meaning that violators may appeal the citation in court within 21 days -- similar to a clerk-magistrate hearing for a civil motor vehicle infraction -- or pay the $100 fine. The city would be responsible for tracking those citations and sending a copy to Malden District Court, although Lyle expressed concern that unpaid citations could go unpenalized and is proposing copying the Middlesex District Attorney's office on all marijuana citations. Alderman At-Large Paul Brodeur asked Lyle about reports that some Massachusetts police chiefs intend to not enforce the law at all because of what they say are difficulties with enforcement or deficiencies within the law itself. Lyle, who said he did not support Question 2 and believes marijuana is a gateway drug, responded, "I believe that the city of Melrose Police Department has an obligation to this community to enforce this regulation." - --- MAP posted-by: Jay Bergstrom