Kent Police, prosecutor will follow new marijuana law; previous cases still stick
By STEVE HUNTER
Kent Reporter Courts, government reporter
December 5, 2012 · 11:22 AM
Kent Police and prosecutors plan to follow the new state law that becomes effective Thursday, Dec. 6 and no longer pursue any new possession cases of an ounce or less of marijuana.
The city prosecutor still plans to pursue marijuana possession cases of one ounce or less already in the municipal court system.
Although 55 percent of Washington voters chose to approve Initiative 502 – which legalizes possession of up to an ounce for adults older than 21 – the drug is still illegal at the federal level.
And with the feds still mum on whether they will continue to enforce their marijuana possession laws in Washington – as well as in Colorado, which also voted to approve recreational use – it's up to local officials to decide how to handle legalization.
"As of Dec. 6, the possession of one ounce or less of marijuana by a person 21 years or over will be legal under Washington law," said City Deputy Attorney Pat Fitzpatrick in an email. "The prosecutor (Tami Perdue) does not anticipate that any of these cases will be referred to the prosecutor for review. In the outside chance the Kent Police Department does refer a case involving the possession of one ounce or less of marijuana by a person 21 or over, the prosecutor will not file the case."
As far as possession cases of more than an ounce, each case will be reviewed on its merits.
"The prosecutor will use her discretion in determining whether the case will be filed," Fitzpatrick said. "This determination will consider such factors as the amount of marijuana possessed, whether the person has committed other crimes contemporaneous to the possession, whether there is an indication that the suspect is engaging in drug transactions, the suspect’s criminal history, etc…"
Kent has 248 pending possession of marijuana cases in municipal court, Fitzpatrick said. The prosecutor will assess each case to determine the next step.
"For those cases involving possession of one ounce or less of marijuana, the defendant will be offered an opportunity to plea to a reduced charge, and the prosecutor will recommend closure of the case," Fitzpatrick said. "For cases involving the possession of marijuana in an amount over one ounce, each case will be reviewed on its merits and the prosecutor will use her discretion to determine whether and how the case will proceed."
Consistent with state law, the Kent Police Department will no longer arrest or issue criminal citations for the possession of less than one ounce of marijuana by those 21 and over, Fitzpatrick said.
"Officers will utilize their discretion in determining whether to arrest or issue criminal citations to those possessing more than one ounce," he said. "The Police Department will continue to vigorously enforce the laws relating to driving under the influence of marijuana. Officers will have the authority to issue citations for the infraction of using marijuana in public."
The King County Prosecuting Attorney's Office announced last month it will dismiss all misdemeanor marijuana possession cases as a result of the passage of Initiative 502.
The decision affected 175 King County cases that are currently filed or referred for filing involving individuals age 21 and older who possessed one ounce or less of marijuana, according to the prosecutor's office.
King County Prosecuting Attorney Dan Satterberg said that dismissing these cases is the right thing to do in light of the vote to approve the initiative.
“There is no point in continuing to seek criminal penalties for conduct that will be legal,” Satterberg said last month in a news release.
Fitzpatrick said the city decided to take a stricter stand than the county.
"Kent believes its approach is appropriate and balanced," Fitzpatrick said. "When these individuals were charged, they committed an act that our Legislature declared to be a crime. Not only was it a crime, it was one of the few misdemeanor crimes in which our Legislature required a mandatory minimum sentence (the others being DUI and Driving While License Suspended in the 1st Degree)."
Possession of marijuana under the law before Dec. 6 was a simple misdemeanor with a maximum penalty of 90 days in jail and a $1,000 fine. It carried with it a mandatory minimum sentence of one day in jail and $250 in fines (i.e. a court must impose the one day in jail and $250 fine).
"We intend to negotiate settlements in these cases short of dismissal in light of the new law that takes effect," Fitzpatrick said. "It is not our intent that a person be subject to the mandatory minimum penalties that a possession of marijuana conviction brings."
Fitzpatrick said it has yet to be decided what the reduced charges would be if someone agrees to a plea deal.
"We have not made that determination as of yet, though reducing the charge to an attempted crime is one possibility being considered," he said.
At the state level, outgoing Gov. Christine Gregoire released a statement last month stating "we are following the will of the people and moving ahead with implementation of the initiative."
Gregoire also has asked the Department of Justice to clarify its position on legalization in the state.
Also waiting on clarification from the feds is the Washington State Liquor Control Board, which will oversee the regulation of marijuana in the state.
The liquor board has a year to craft rules to guide the eventual sale and taxation of marijuana statewide.
"As we develop the rules, we will keep in mind our top priority, public safety," the liquor board said in a press release.
The state has until Dec. 1, 2013 to draft rules for the sale of the drug.
The sale of marijuana through regulated state stores is eventually expected to provide a financial windfall for the state.
The new law calls for taxes of 25 percent on each sale between producers and processors, followed by an additional 25 percent on the sale between processor and retailer.
Consumers will then pay a 25 percent tax at retail outlets, in addition to the local sales tax.
More than 1.7 million people voted to legalize pot in Washington. About 1.3 million voted no.
Reporter Shawn Skager of the Auburn Reporter contributed to this article.Contact Kent Reporter Courts, government reporter Steve Hunter at email@example.com or 253-872-6600, ext. 5052.